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Action No.: 1101-10495
Appeal No.: 1201-0086AC
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December 21, 2011
Morning Session
Submissions by Mr. Silverman (Application to Admit Fresh Evidence)
Submissions by Mr. McDonough (Application to Admit Fresh Evidence)
Submissions by Ms. Ashcroft (Application to Admit Fresh Evidence)
Submissions by Mr. Silverman (Application for Disclosure)
Submissions by Mr. McDonough (Application for Disclosure)
Submissions by Ms. Ashcroft (Application for Disclosure)
Submissions by Mr. Silverman (Application for Judicial Review)
Certificate of Record
Certificate of Transcript
December 21, 2011
Afternoon Session
Submissions by Mr. McDonough (Application for Judicial Review)
Submissions by Ms. Ashcroft (Application for Judicial Review)
Certificate of Record
Certificate of Transcript
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THE COURT: So I understand that we’re here today for a judicial review of a matter. And, first of all,
let me canvass the courtroom for the parties. Mr. Silverman, are you here?
MR. SILVERMAN: Yes, I am, My Lady.
THE COURT: All right. And do you have counsel?
MR. SILVERMAN: Unfortunately, I was unable to obtain counsel.
THE COURT: All right. So you’re representing yourself?
THE COURT: All right. And who’s the person beside you?
MR. SILVERMAN: He is a -- a support individual. His name is Ed Stein
THE COURT: Okay. I take it, Mr. Silverman, you are the one that’s going to be doing the talking?
THE COURT: All right. Thank you. You can be seated for a moment. Mr., is it McDonough?
MR. MCDONOUGH: That’s right.
THE COURT: All right. And you’re here on behalf of Alberta Children Services, is that correct?
THE COURT: All right. And, Ms. Ashcroft?
MS. ASHCROFT: Yes, My Lady.
THE COURT: All right. Everyone’s prepared to proceed this morning?
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THE COURT: All right. I’m just going to give a brief overview, for the record, and for my review of
the file, to make sure we’re all on the same page.
On August 2nd of 2011, an application for judicial review of the decision of the Chief of the
Commission and Tribunals and the Alberta Human Rights Commission was made that arose out of a
decision from February 14th of 2011, and, Mr. Silverman, you filed an affidavit in support of that
application for a judicial review.
On September the 12th of 2011, Madam Justice Erb made an order that -- and directed this matter to be
heard today in a special, and she also added or ordered that the Province be added through Alberta
Children Services, with Mr. McDonough representing counsel -- or representing the department, as well
as an order for you to file materials, Mr. Silverman.
So on October 17th of 2011, you filed at that time an application to admit fresh evidence, or refresh the
evidence previously found in the binders, along with your affidavit in support of that application. On
October the 24th, 2011, Mr. McDonough responded to your application to tender fresh evidence. On
October 31st, 2011, Justice Lutz for some reason adjourned the fresh evidence application to today’s
On December 5th, 2011 , Mr. Silverman, you filed another application for disclosure, along with a
supporting affidavit. On December 16th, 2011, Mr. McDonough and Ms. Ashcroft both filed briefs with
respect to the matters of the three applications before THE COURT: the application for judicial review,
the application to admit fresh evidence, and the application for disclosure.
Now, this morning I just received your brief, Mr. Silverman. Now, that had been filed on Friday the -December 16th, 2011. For some reason I just received it this morning. I had an opportunity to review it.
I do want to canvass counsel to determine whether or not -- first, Mr. McDonough, did you receive a
MR. MCDONOUGH: No, this is the first I’ve learned of it.
THE COURT: All right. Ms. Ashcroft?
MS. ASHCROFT: No, My Lady.
THE COURT: All right. Mr. Silverman, did you serve either counsel with a copy of your brief?
MR. SILVERMAN: No, I didn’t.
THE COURT: And why did you not do that, sir?
MR. SILVERMAN: Lack of experience.
THE COURT: All right. Do you have additional copies of it?
MR. SILVERMAN: I have one copy.
THE COURT: All -- your -- one in addition to your own material?
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MR. SILVERMAN: Two of my own. Yes.
THE COURT: All right. Well, I think it’s appropriate that you provide -- if you would kindly provide
that copy to Mr. McDonough. Counsel, if you’d like an opportunity to review that, I can adjourn briefly
so you can skim through it, or alternatively we can proceed. I’ll tell you what my thoughts are this
morning, and that would be that we would commence first with the application by Mr. Silverman to
admit fresh evidence. I think procedurally I should deal with that first and ask for his submissions. Then
we’ll deal with the disclosure application, and then the application for a judicial review.
Are counsel agreeable to proceeding in that fashion?
MR. MCDONOUGH: In -- in terms of the order, yes, My Lady. I do have some concerns about
receiving this brief today. I--I know Mr. Silverman attributes it to lack of experience; I did send him a
message in advance of his brief filing date, advising him of the requirement, and asking that it be
provided to me, so I don’t accept his explanation. In -- in terms of what’s in here, I -- I’m not sure
whether -- how much time I would need to respond to it. It may be that this doesn’t touch upon the fresh
evidence or the return and -- and maybe we start with those and then look at this over the lunch hour.
I’m -- I’m not sure.
THE COURT: All right. Ms. Ashcroft, are you agreeable?
MS. ASHCROFT: Yes, that’s fine.
THE COURT: Thank you. I think because we’ve got the day set, that perhaps we should proceed in
that fashion. Mr. Silverman?
MR. SILVERMAN: My Lady, not being legal counsel I had to resort to asking questions, and I was
told that no brief was required. And then when I received the brief, I re-questioned the staff in the
building, the -- the clerks as well as legal resource centre, and they said that no brief was required
because it was a special on the order -- it was a special directed by an order, therefore no brief was
necessary. I was under the impression that I was going to be doing oral presentation, rather than from a
brief, so that’s the reason for the -- the delay.
THE COURT: Well, Mr. Silverman, you did receive a copy of the brief of Ms. Ashcroft and the brief
of Mr. McDonough, did you not?
THE COURT: All right. And those were filed in early December, December 9th, I think, in each case.
THE COURT: All right. And you’ve been before the courts for some period of time with respect to this
matter, so it -- I must say I am somewhat surprised that you would not know from having received the
brief of the -- the other two counsel that you would not require one. But, in any event, it’s before the
Court today. I will give you -MR. SILVERMAN: Yes.
THE COURT: -- an opportunity to make oral argument, of course, but I will also give counsel an
opportunity to review the brief that you’ve submitted.
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MR. SILVERMAN: Certainly.
THE COURT: All right. So I’ve -- I’ve reviewed the materials that I’ve made reference to, and I have
also managed to get through a portion of the return. As I indicated, I think it’s appropriate to proceed
first with the application for fresh evidence. I have the briefs and have reviewed them of Mr.
McDonough and Ms. Ashcroft. They have both clearly set out the law with respect to the criteria that I
need to consider when deciding whether or not I should allow your application to admit fresh evidence.
The general rule is that evidence that was not before the tribunal and that relates to the merits of the
decision is not permitted on a judicial review. There are some limited exceptions. New evidence may be
allowed to show bias or a reasonable apprehension of bias, where the facts in support of the allegation
do not appear on the record. Sometimes breaches of rules of natural justice will not be apparent from the
record. There may be an exception with respect to standing or where a tribunal makes no or an
inadequate record of its proceedings.
Now, Mr. Silverman, you did make reference to those exceptions and the general rule in your brief that
you submitted, so I presume that you are aware of the criteria that you need to focus on with respect to
your application to admit fresh evidence. So with that outline in mind I’d like first for you to address
that application and make your submissions in that regard.
Submissions by Mr. Silverman (Application to Admit Fresh Evidence)
MR. SILVERMAN: Thank you, My Lady. One of the first things that I would like to bring to the
attention to this honourable Court is the Alberta Human Rights Act, section 33, which states: (as read)
33(1) If there is new evidence available that was not available or that
for good reason was not presented before the human rights tribunal
in the first instance, the tribunal may, on application of any of the
parties or its own motion, reconsider any matter considered by it and
for the purpose has the same power and authority and is subject to
the same duties . . .
So, basically, according to the Alberta Human Rights Act, fresh evidence that was not available is able
to -- to be presented. And as I stated in the -- the concept of the fresh evidence, it is not really fresh
evidence but it is in reference to -- and you’ll have to 0 excuse me for a moment. What I basically am
focussing on is evoking the concept of "the living tree doctrine" for the very simple reason that life is
dynamic rather than static, and that research pertaining to what the fresh evidence is also dynamic rather
than static. The fact that it has been demonstrated that -- and -- and I’m using the -- the -- the fresh -the living tree doctrine in terms of at one time Dr. Morgentaler was considered a criminal and now he
has the Order of Canada, so he’s gone from a criminal to an honoured individual on the basis of
providing women with a safe alternative. And in terms of the research, research changes on a daily
basis. A lot of the research that I found that was submitted by the respondents is outdated. It’s staledated. The research has gone back on issues of domestic violence against women for over 50 years, and
it’s only been the past ten years that researchers are including male victims of domestic violence.
So that’s why I feel the living tree doctrine in an important step. The information that I provided
pertaining to fresh evidence is -- as I stated, is refreshed evidence that -- the examples that I gave -- I’m
sure I have it somewhere here. The -- for example, Statistics Canada which is Exhibit A.
THE COURT: So this is Exhibit A to what, Mr. Silverman? Just so I know where you’re looking.
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MR. SILVERMAN: In my brief on page 13 is the -- the area of fresh evidence pertaining to the
introduction of fresh evidence in the Act. The Chief Commission has no right to oppose the introduction
of fresh evidence, as what was demonstrated in Brewer as not having the right for appeal, but section 33
allows for the introduction of new evidence available that was not available. And the introduction of
fresh evidence, the evidence was submitted to Southern Director Gundara, as well as Chief Mason, but
as it is fresh unto itself rather than "new" fresh evidence, hence the "living document" concept, the
refresh evidence was not available at the time of appeal which meets that qualification in terms of was
not available at that present time.
And on page 14 is Exhibit A which demonstrates family violence in Canada statistical profile 2005,
which demonstrated percent women and percent men were victims of their partner’s violence. And that
information was refreshed to the family violence in Canada statistical profile, which demonstrates that it
was percent women, so it’s gone down from 7 percent to 6.4 for women, and for men it’s stayed at 6
percent, as well as Exhibit C which demonstrates that the annotative bibliographies that demonstrate
gender symmetry increased from 249 to 282 investigations.
THE COURT: So are you saying, Mr. Silverman, that the -- the change in statistics that were
determined in 2010 were not available at the time that you made your complaint to the -MR. SILVERMAN: Correct.
THE COURT: And it was investigated, and then you had it reviewed by -MR. SILVERMAN: Correct.
THE COURT: -- Justice -MR. SILVERMAN: The -THE COURT: -- Mason. Is that correct? Do I understand that correctly?
MR. SILVERMAN: Yes, but the information Exhibit A of 2005 and Exhibit C of 2009 was submitted,
and what I’m saying is because of the living doctrine -- the living tree doctrine, as well as the fact that
life is dynamic rather than static, these studies should be introduced as refresh evidence in terms of this
is now the fact rather than what was the fact. For example -- and, again, Exhibit E was the Psychological
Effect of Partner Abuse Against Men by Denise Hines, was dated 2001 , and she has reviewed her own
study and has updated her study to provide results in Men’s Experience with Partner Aggression Project,
and these are fact sheets of July 2010.
So the whole idea is to justify the reception of fresh evidence three conditions must be met. First, I must
show that the evidence had not -- could not have been obtained with reasonable diligence for use at the
trial. Well, in this case, no, it wasn’t. It was after the appeal had been set.
And also we’re looking at the important influence that the results may have in a case. Well, maybe
someone could argue for a case of a 1 percent difference between men and women, but I think it would
be a lot harder to argue a case when you’re only looking at a -- a 0.4% difference experience of domestic
violence between men and women. So I think that that is an important -- and it can change. A reasonable
person would say a 0.4% percent does not have any strength or qualifications to qualify that -- to state
that there is a difference between one group and the other group, that a .4 percent is basically the same
thing. So if women receive certain amount of things, then logically, reasonably, legally men should
receive the same amount of things. And -F:\paperzz\70096963.doc Page 8 of 42
THE COURT: So, Mr. Silverman, so I understand you then, you’re relying on, in your submissions,
paragraph 26, the Nelson (phonetic) case. Are you making -MR. SILVERMAN: Correct.
THE COURT: -- reference to Nelson? And you’re suggesting to this Court that these three conditions
set out in the -- Lord Denning in Ladd v. Marshall case from the Court of Appeal in England, and cited
by the Supreme Court of Canada in Segaz, is what I should follow in terms of the test for the admission
of fresh evidence?
MR. SILVERMAN: As well as section 33 of the Alberta Human Rights.
THE COURT: Okay. I just want to be clear that I understand your argument. Thank you. Okay, go
MR. SILVERMAN: So I would have to say that -- that the -- the other aspect of the introduction of
refresh evidence or fresh evidence is the fact that there has been some bias that I have determined is
present at Alberta Human Rights, as well as Mr. Mason, and that has to do with the issue of not only not
recognizing men as victims of domestic violence but pursuing the concept that women who were victims
of domestic violence, the person should also be charged under section 718.2 as a hate crime, which I
think overextends judicial neutrality that -THE COURT: So when you make reference to 718.2 are you talking about the sentencing provisions of
the Criminal Code?
MR. SILVERMAN: That Mr. Mason has lost his position of judicial neutrality. And as Ms. -- Ms.
Ashcroft had mentioned pertaining to in the Brewer citation, that the Chief must be seen in a neutral
context as not going into battle with a bayonet, and I assert that by Chief Mason supporting that violence
against women be considered a hate crime and totally ignoring the issues that men face as victims of
domestic violence, has overstepped that neutrality, and not only has joined the battle in the bayonet
charge, but is actually now leading the bayonet charge, which definitely defines losing a position of
So in terms of fresh evidence, I think that I would like this Honourable Court to consider that fresh
evidence is on the basis of the living tree concept, that information changes. Certainly, not only was -- is
the issue of Dr. Morgentaler a -- a good example, but certainly the -- the idea of the Supreme Court of
Canada recognizing that gay -- same-sex marriages should be part of the human rights. In terms of that
1964 , to be involved in a same-sex relationship was a criminal act, and that it wasn’t only until the
passage of C-130 which decriminalized same-sex relationships. So we’re looking at from 1965 , and
then 2004 the Supreme Court of Canada ruled on the human rights issue of people who were involved in
same-sex relations being able to achieve access to the process of achieving a civil licence for marriage,
so I think that just demonstrates what the living tree concept is about.
And in terms of the whole issue of -- in the background is the domestic violence issue, that for 50 years
we have been looking at research that has only demonstrated on single-sex research, for example, the
release from the government of Canada, A War Against Women, and it was only 2010 -- 2000 that the
government of Canada actually released research on the issue of -- of domestic violence to include men,
and at that point they discovered 8 percent women and 7 percent men.
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So certainly we’re having a -- a living tree definition of the more research, the more we could arrive at
solutions. And I think that that’s what the idea of court judicial system is about, is finding the right
direction to -- to reach solution. And just as a side note, I’m not very good in the adversarial world, I’m
far better in the meditative world, but in terms of the admission of fresh evidence I think it’s important
to -- to introduce the new fresh evidence or the refreshed evidence in order to get a clearer picture as to
the type of discrimination that I experienced, as well as the challenge to my personal dignity that I
experience due to this.
So I’ll leave it at that -THE COURT: All right.
MR. SILVERMAN: -- My Lady.
THE COURT: Thank you for your submissions with respect to your application for fresh evidence. Mr.
McDonough, do you want to respond or do you want an opportunity to look at the materials that were
MR. MCDONOUGH: I--I think I can respond. Thank you.
THE COURT: Thank you.
Submissions by Mr. McDonough (Application to Admit Fresh Evidence)
MR. MCDONOUGH: My -- my overall response to Mr. Silverman’s arguments in favour of the
introduction of fresh evidence is that his arguments are going to the merits of the case. They -- they
therefore fall within the rule set out in Alberta Liquor Stores, and more recently in the McClary case. In
fact, they fall to the very heart of the rule. The merit is the -- the place that it’s clearest that fresh
evidence is not permissible.
Mr. Silverman referred to section 33 of the Act. Section 33 does not deal with evidence on judicial
review. It fits in another context entirely. This Court, though, has dealt with the prospect of the
application for fresh evidence in the context of judicial review very recently in the McClary case, which
is at tab 3 of the materials that I have provided to the Court. I believe it may have been in Ms. Ashcroft’s
as well, and it’s discussed there at paragraphs 25 and 26:
[25] Judicial review is conducted on the basis of the return, and
affidavit evidence is generally not admissible . . .
[26] Affidavit evidence related to the merits of the impugned
decision is not relevant or admissible on judicial review. The
reasonableness of the decision can only be determined by
examining the evidence the decision-maker had to work with . .
In my submission, those paragraphs apply with equal force to this case. And Mr. Silverman has referred
to the test for fresh evidence, and that test too was developed in another context, the -- the appellate
context, and it is specifically discussed by Justice Slatter, as he then was, in the Alberta Liquor Stores
case. And Justice Slatter says that test is not applicable to an application for fresh evidence on judicial
review. He says that on principle basis and the principle is this: on judicial review the Court is tasked
with reviewing the reasonableness of the decision of the statutorily-assigned decision-maker. In that
case, this is the Chief. It’s difficult to the review the reasonableness of the Chief’s decision if you’re
factoring in material that wasn’t even before the Chief.
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The next point that my friend argued was bias, and -- and Mr. Silverman suggested that the Chief is -- is
biased for two reasons. He said that the Chief does not recognize men as victims, and also that the Chief
supports some sentencing provisions with which I’m not particularly familiar. In terms of the suggestion
that the Chief doesn’t support -- doesn’t recognize men as victims, in my view, that -- that’s not true. It
doesn’t follow from the Chief’s decision. In fact, if -- if we go to the Chief’s decision -- and that’s in the
return, I believe it’s tab B, in particular at page 5. I--I don’t know that the Court needs to turn there. I’ll - I’ll just read the sentence from the Chief’s decision: (as read)
“I accept the research that supports the position that there are
victims of male violence.”
I think it’s fair to say that that’s a common position amongst all the parties here. That -- that’s not what
we’re really arguing about. Everyone here accepts that there are male victims of domestic violence. The
Chief was going beyond that -- that (INDISCERNIBLE) -- in -- in his decision he was required to go
beyond that surface statistic and look to the substance of what this domestic violence looks like and how
it should be addressed and how it is -- how it is addressed. So I think my friend -- Mr. Silverman’s
comment that the Chief doesn’t recognize men as victims and is biased should carry no weight. .PP In
terms of the specific evidence that Mr. Silverman wants to -UNIDENTIFIED SPEAKER: I disagree.
THE COURT: Well, Mr. Silverman, you’ve -UNIDENTIFIED SPEAKER: But -THE COURT: -- had your opportunity to make submissions. Mr. McDonough’s going to make
submissions, and I’ll call on Ms. -- MS. ASHCROFT: Somebody -THE COURT: Sorry, did that come from -THE SHERIFF: Ma’am, that was the person in the front row there.
THE COURT: Oh, thank you. I’m sorry. I apologize, Mr. Silverman. People in the body of the
courtroom are not here to make submissions. You listen quietly. If you’re going to interject, you’ll have
to leave the courtroom. Thank you.
I’m -- I apologize, Mr. Silverman.
MR. SILVERMAN: That’s fine, My Lady.
THE COURT: Go ahead, Mr. McDonough.
MR. MCDONOUGH: Just referring to the specific evidence that Mr. Silverman wants to add to the
record, I take it that the evidence he’s seeking to add is the evidence attached to his October, 17, 2011,
affidavit. And I’ll just look quickly at that evidence. First, we have -- and it -- it might be of some
assistance if the Court has this before it. It’s -- it’s an -THE COURT: Yes.
MR. MCDONOUGH: -- affidavit dated October, 17, 2011 from Mr. Silverman.
THE COURT: Sorry, and which tab are you referring to, Mr. McDonough?
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MR. MCDONOUGH: Well, I’ll -- I’ll go through them quickly.
MR. MCDONOUGH: Tab A, there’s a reference to the 2000 and the 2005 statistics. I should say on
the record there’s already complete family violence in -- in Canada statistics. I believe we have 2006,
and perhaps one or two other years. And -- and then there’s a single stat picked from the 2010 set of
statistics that suggests that the numbers may be closer in terms of some experience of -- of domestic
violence, but we’re missing the rest of the report, which -- which I would suggest tells somewhat of a
different picture. And -- and, in any event, again, we’re not arguing about whether men and women both
experience some domestic violence, so I -- I don’t think that’s really a -- a particularly telling document,
in any event.
Second, at tab C we’ve got the Fiebert bibliography, and if I understand correctly we’ve gone from 259
scholarly investigations to 282 scholarly investigations. In my view, again, this -- this wouldn’t really
have any effect on the Chief’s decision.
They’ve got the document at tab E, which if I understand Mr. Silverman correctly, is already included in
the return, so that’s not at issue. And then at tab F there’s a -- another report which I think could
probably just be placed on the heap of the -- the competing reports we have going back and forth. Again,
we’re not suggesting that no men suffer from domestic violence.
Turning the page, I’m not sure the -- turning the tab, pardon me, I’m not sure of the relevance of the next
document or the document that follows. Then we get some of the argument that Mr. Silverman
previously submitted to the commission; this is already included in the return, so it -- I don’t know that
that’s at issue either.
I -- I -- going to tab H, the -- that document I don’t think would have any significant bearing on the
Chief’s decision. Then the next document is a -- the last page of the Chief’s decision, so that’s already
included in the return, and we’ve got a -- a few short newspaper articles and -- and excerpts from
journals that I think carry forward the -- the theme of what’s already before the Court and that was
already before the Chief. Then we’ve got the last page of the Chief’s decision. That’s at tab J, pardon
And, finally, at tab K we’ve got some letters without any context or background for the letters. In
particular, the first letter looks like we’ve got somebody who is fleeing from -- from abuse. That’s at tab
K. Now, in a earlier affidavit that Mr. Silverman filed, the one that he filed, I think, at the same time as
he filed his originating application, he’s got that document as well. And following it he has a document
which has a cheque from the government for $1,090 for the escaping abuse benefit and a transitional
leave abuse benefit. So my suggestion is, if anything, that simply corroborates the point that there are
supports (INDISCERNIBLE) -THE COURT: And if I -- if I read correctly, these letters are dated in 2011. Is that correct?
MR. MCDONOUGH: That’s right.
THE COURT: Thank you.
MR. MCDONOUGH: With the exception of the -- there’s a letter dated November 4th, 2008, to a Mr.
Allen Buto (phonetic).
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MR. MCDONOUGH: The third letter in. So to summarize my position on the fresh evidence then, both
sides have had ample opportunity to submit documents, evidence, and argument, at two different levels.
We’re now at judicial review.
The issue before the Court is the reasonableness of the Chief’s decision based on the record that was
before him. This new evidence has no bearing on that issue and -- and should not be permitted. It is not
anywhere near the exceptions in the case law for – for allowing fresh evidence.
In the event that the Court were to disagree, then I suppose I would have to contemplate what sort of
examination is necessary to put the context of these letters that Mr. Silverman has included, and whether
it’s necessary to put in full articles of the things that he’s pulling stats from or -- or even find further
articles myself, and -- and essentially we get into another trial, which -- which this is -- is not supposed
to be. Thank you.
THE COURT: Thank you. Ms. Ashcroft.
Submissions by Ms. Ashcroft (Application to Admit Fresh Evidence)
MS. ASHCROFT: Thank you, My Lady. I’ll be -- I’ll be brief. I just -THE COURT: Right.
MS. ASHCROFT: -- want to speak to two points, because I see my role here as assisting the Court with
the legislation. I do want to comment on section, which is specifically directed towards a human rights
tribunal, as opposed to the Chief Commissioner, so it doesn’t apply in these kinds of circumstances.
My second point with respect to -- is with respect to fresh evidence. Generally it’s not allowed, as set
out in -- in my brief, and I think it’s important to look at the opportunity Mr. Silverman was provided
with regard to submissions before the Chief Commissioner, really all throughout the process. And at
page 7 of my brief, which is a -- a thin brief in green -THE COURT: I have it.
MS. ASHCROFT: -- I’ve set out all of the opportunities that Mr. Silverman was provided to contribute
to his -- well, to -- to set out his complaint, to be involved in the investigation process, and, most
importantly, to file new submissions and information before the Chief Commissioner, which is -- is
provided for in our bylaws under section ( ) and ( ). So he had that opportunity, and, indeed, he took
advantage of that, filing four full volumes of additional submissions, so we would submit that he has had
that -- that opportunity.
And I think the problem with fresh evidence which is exemplified in this review is as responded to by
my friend, Mr. McDonough. Mr. Silverman wants to put in some information, Mr. McDonough then
responds with new information of his own, and this is not a--a proper judicial review anymore. It is not
reviewing the decision of the Chief Commissioner in -- in any sense, and, in fact, is against the statutory
administrative process set out in the -- as in -- in the legislation. Sorry.
THE COURT: That’s fine.
MS. ASHCROFT: I’m having a croak there. Thank you, My Lady.
THE COURT: Thank you. Mr. Silverman, do you want to take a moment to respond to anything Mr.
McDonough or -F:\paperzz\70096963.doc Page 13 of 42
THE COURT: -- Ms. Ashcroft has said?
MR. SILVERMAN: I -- I would like to do that. In terms of the fresh evidence and the -- the Chief’s
response, one of the major difficulties that I had pertaining to the Chief’s response was his term
"demonstratable need". And it was only until his decision of dismissal that this term that the Chief used
was raised by him. I was not party to discussion pertaining to demonstratable need. As far as I
understand demonstratable need -- and I’ve researched this all over, that demonstratable need is not a
valid human rights test.
So what I found myself doing is in a matter of acting in defence of the situation that I felt albeit was not
necessary to demonstrate, I included a demonstratable need in two aspects. One: one of the things that I
found actually very, very disheartening in the Chief’s response in his letter of dismissal was to state that
women suffer more from domestic violence, including death. I found that extremely offensive when you
consider that if there were three corpses brought into this courtroom, victims of domestic violence, one
of those corpses; one out of three would be male. He had total disregard to the fact that men die from
domestic violence, and I think that -- not only did I find it offensive but I also found it that he stepped
out of his judicial neutrality by stating women are victims of spousal homicide, but totally, totally
ignoring male victims of spousal homicide.
So it’s my understanding that part of what his issue is focussed on is providing support services for
women, which I have absolutely no issue with. And if you notice in any of the -- all the documentation
that I have provided this Honourable Court, there has not -- there has always been a positive reflection to
the -- the experiences that women have experienced, the support services that women have. There has
not been any challenge to any of this. I agree with it 100 percent. What I’m saying is, as a male, I am
equally deserve as -- as those type of services.
And to reflect on that particular issue is item I of the refresh evidence. Because I felt the Chief stepped
out of his position of judicial neutrality that it was important for me to point out that it has been
demonstrated that women’s shelters and domestic violence services save men’s lives, so I have
attempted to mirror that statement to say men’s shelters and domestic violence services will save
women’s lives. And I think it’s very appropriate to be submitted as fresh evidence as a balance to the
one-sided expression of the Chief.
And additionally in item index K, which is Alberta Health Services -- and, again, this was something
that was not available to me at that particular time. I’ve had community referrals to -- to MASH 4077.
MASH 4077 is a program by Family of Men Support Society which stands for Men’s Alternative Safe
House. So I’ve had people staying over. The paperwork I did was for the internal protection of the
organization, myself, and the individual, but May 19th, 2010, Alberta Health Services stated that they
were looking for shelter for a male who was a victim, he was fleeing domestic violence situation, and I
had permission to use his name. March 17th, 2011, I did not -- I wasn’t able to locate the individual, so I
have taken his name out of the paperwork
But, again, it is a letter written by Alberta Health Services that demonstrates that there is a demonstrated
need for domestic violence shelters for men, as well as the situation -- albeit that I had the letter from
Alberta Justice Minister Redford, who is obviously now Premiere of the Province, where she reflects
that: (as read)
If the individual is looking for support services to contact the
Family of Men Support Society, which is -- the resources included
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organizations dedicated to helping male victims of family violence,
such as the Family of Men Support Society in Calgary and the
Men’s Help Line in Alberta.
So I think that demonstrates the need, so -- so this fresh evidence is to balance out the Chief’s statement
that there is no demonstrated need. And if this Court would allow me, I would be able to provide
demonstrated need -- demonstrated need of a male victim of domestic violence who has taken shelter in
the MASH house, that his wife, who was throwing beer bottles at him, and when the police arrived she
evidently attacked the -- the RCMP officers, and she was charged with assaulting police officers -THE COURT: You can be seated -MR. SILVERMAN: -- but the reason -THE COURT: -- sir, thank you.
MR. SILVERMAN: -- why I -- I am bringing this up is he is a victim of domestic violence. It is on
record. The RCMP, albeit he is the victim, told him he had to leave the house. And that is the reason for
the necessity of demonstrating that the Chief errored in stating there is no demonstrated need. There is
everything to demonstrate that there is a need, and by introducing fresh evidence as well as this
individual, there is a demonstratable need. So it balances it.
One of the things that I’ve also noticed, and -- and I’m not a lawyer. We’ve agreed to that. I’ve had
about four to six months of legal research, and I would have to say God bless CanLII, who’s been my -as soon as I sit down at my computer, it automatically goes there. But one of the things that I’ve also
experienced is, in reading the information provided by the -- the respondents, I feel that they are
providing so many red herrings in the whole issue that I could probably open up a fish store for about
two years. So that’s my final on the fresh evidence. Thank you -- Your -THE COURT: Thank you very -MR. SILVERMAN: -- My Lady.
THE COURT: -- much, Mr. Silverman. I’m going to call on you now, Mr. Silverman, to speak to your
application for disclosure that you made, and that was filed on December the 5th, I believe. Yes, the
application by the applicant for disclosure, filed December 5th of 2011, and a supporting affidavit filed
on the same date.
Submissions by Mr. Silverman (Application for Disclosure)
MR. SILVERMAN: My Lady, one of the things that as a non-legal entity I had difficulty with is
bringing legal information into my presentation. I have been a domestic violence researcher for over 0
years. I’ve been able to view a lot of the legal information from a researcher’s perspective and translated
it into a researcher’s perspective. I do have to admit my -- my limitation was being able to take that
information and bringing it back into a legal format. So while I may have references to legal
precedence’s -THE COURT: Mmm hmm.
MR. SILVERMAN: -- I haven’t done it properly. Just --
F:\paperzz\70096963.doc Page 15 of 42
THE COURT: Well, you’ve -- you’ve -- as I read your application, it’s a -- a relatively narrow issue,
Mr. Silverman. You’ve indicated and you’ve made reference to a specific -- two documents, actually.
You’ve referred to the investigator’s report of January 20th, 2010, and made reference to a -- a comment
of -- that the response of the Deputy Minister’s statement, which states that: (as read)
Police, Justice, Health and Children’s Services, do not indicate a
substantiated need for expanding the shelter program to include
men’s emergency shelters.
THE COURT: You say this disclosure is currently missing from the return, and then you’re making
reference to your own letter of April 15th, 2008, to Mr. John Gabriel (phonetic), and Mr. Gabriel’s
reply. So that’s what you’ve requested to be -MR. SILVERMAN: Correct.
THE COURT: -- supplied. So it’s -- it’s a -- a fairly narrow issue, so I just want you to simply tell the
Court what you think -- why you think that that should be disclosed and who ought to disclose it to you
and what the purpose of that is.
MR. SILVERMAN: Okay. I mean, and it -- it just sounds like I’m carrying on from my previous
statement pertaining to this term "demonstratable need".
THE COURT: But you’ve made reference to that specific item, and you’re suggesting that that is
something that you think is missing and that you need.
THE COURT: So I just want you to -- to talk -MR. SILVERMAN: Correct.
THE COURT: -- about that.
MR. SILVERMAN: So I--I’m trying to point out that -- that -- that at the end of our -- this whole
picture is the Chief mentioning "demonstratable need".
MR. SILVERMAN: That’s what we -- we did before. And in this situation we could accept that
substantiated need, demonstrated need, or demonstratable need, are relatively the same term, that -- what
I’ve been able to locate in terms of references to case law is -- well, first of all, this here statement is -has not been proven. It is solely an unsubstantiated personal opinion if there is no data basing -supporting this statement. So there is no fact, there is no reference in law; it is solely an unsubstantiated
personal opinion.
One of the things that I would like to point out is in the statement of the deputy minister she said police
have indicated no substantiated need. I would also like to draw attention to the fact that the Calgary City
Police, after finding officers sleeping in their squad cars due to domestic violence, opened up a shelter
called Diakonos House. So the Calgary City Police have recognized that men require shelter due to
domestic violence situations that the Diakonos House project by the Calgary City Police has been so
F:\paperzz\70096963.doc Page 16 of 42
successful that it’s as extended to Edmonton as well as Red Deer. And in the greater search of the world
I have not been able to find anything else in the whole world, which means the Calgary City Police
operate a shelter, a domestic violence shelter, for police officers that cannot be found anywhere in the
whole world. So I highly doubt whether the police would be able to say that there’s no demonstrated
need or substantiated need when then -- them themselves have a shelter.
In terms of the matter itself, what I’ve been able to locate in terms of law, the -- there is the reference to
procedural fairness, that the heart of fairness in proceedings before the commission -- the procedural
fairness, the Supreme Court of Canada has stated that the concept of procedural fairness is eminently
viable and its content is to be cited by a specific context in each case. That in Jung in 2007, pertaining to
Fernbank, the commission said:
Disclosure is an issue that goes to the heart of fairness in
proceedings before the Commission.
It would violate the principle of fundamental justice to deprive an individual’s liberty under
circumstances which amounts to the abuse of the process, disclosure, which goes to the very heart of the
So disclosure is the essence of fairness, and I certainly do not feel the onus is -- the onus is on the party
resisting disclosure to establish that conditions should be placed on disclosure or disclosure should be
limited. The primary concern of court is to have the best before it, is the best technical information and
And if all these government departments are saying it’s not needed, I would like to quote a former
Burger King commercial and say, "Where’s the beef?" If there is no evidence and the -- there is no
evidence stating, proving that these departments have demonstrated that there is no substantiated need,
without this proof it remains as an unsubstantiated personal opinion and does not have any validity in a
Human Rights process, nor in a court of law. So I’ll stay -- I’ll -- I’ll leave it at that.
MR. SILVERMAN: Thank you.
THE COURT: Thank you.
Mr. McDonough, would you care to respond with respect to the disclosure application.
Submissions by Mr. McDonough (Application for Disclosure)
MR. MCDONOUGH: Just -- just briefly. I don’t have a whole lot to add to what I’ve already put in -in the brief, and I heard that Your Lady when you said you read the brief. I—I do want to just take my -take Mr. Silverman up on his characterization of the Diakonos House. And I -- I understood him to the
tell the Court that it was a safe house for police officers who are victims of domestic violence, and I’ve
only just got the benefit of -- of his affidavit, the fresh evidence, at -- and that’s at tab G. And -- and
what that says about Diakonos House is, it says: (as read)
Diakonos House operates like a safe house for peace officers
facing crises such as marital breakdowns, substance abuse,
medical emergencies.
THE COURT: Sorry, what tab is it at?
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MR. MCDONOUGH: This is -- this is tab -THE COURT: Is this on the -- his -MR. MCDONOUGH: It -THE COURT: -- December 16th brief?
MR. MCDONOUGH: No, pardon me; it’s in the October 17-THE COURT: Oh, okay. Sorry.
MR. MCDONOUGH: -- 2011, affidavit. It’s at -- at –
THE COURT: And what -- which tab? G?
THE COURT: Okay, thank you. Let me just make sure I have a note of that.
MR. MCDONOUGH: I -- I’m not sure -THE COURT: Oh, yes.
MR. MCDONOUGH: -- that really adds much to the point about whether further disclosure is required.
And I’m also not sure that I -- I really understand who Mr. Silverman’s seeking the disclosure from. If
he is inviting my client to submit further evidence, I -- I would think I’m probably caught in the same
position that I say he is in. We’re at judicial review now. It’s not time for further evidence. What’s in the
record is what is properly before the Court, and we live or die by what’s in the record.
THE COURT: Thank you. Ms. Ashcroft.
Submissions by Ms. Ashcroft (Application for Disclosure)
MS. ASHCROFT: Thank you, My Lady. I will make a -- a bit more of fulsome submission with
respect to this, because the return is provided by the commission. Firstly, with regard to the law in this
area, the law is as stated in IMS Health Canada at tab in my green authorities. Oh, sorry -- sorry, tab 10.
Justice Ritter reviews the law and emphasized that the common-law application in terms of the
completeness of the return is very narrow. And he emphasizes that under the current -- under the Rules
of Court which were then current at the time, the wording was much broader, "all things touching the
matter". And then he reviews the case law and at the end of the day decides that it’s broader than the
narrow common-law position. But then he concluded in paragraph that there may be concerns about
fishing for documents that are not relevant. And he emphasized at paragraph 53: (as read)
Concerns about far ranging returns are alleviated by the fact that
the return is only directed at what is in issue. Moreover, in
circumstances where the administrative decision-maker is
insulated from the investigative and other preliminary processes,
the 0 decision-maker will not possess documents relating to those
functions. Demands for more expansive returns cannot become
fishing expeditions because the party attacking administrative
decisions will not be granted access to the documents . . .
F:\paperzz\70096963.doc Page 18 of 42
So this is even in the context of a much broader reading of the Rules of Court. Our current Rules of
Court are under section -- sorry, tab 11 of my brief, which are specified to be much narrower. I’ve put in
form 8 and form 9, the decision or written record of the Act, which is at tab B of the return; the reasons
given, again at tab B; the documents starting the proceeding, which is the complaint, which is tab R,
volume ; the evidence and exhibits filed with you, if any, and these would be the submissions that would
be provided by the parties under section 8(1) and (2) of our bylaws, as well as under our process the
investigation report. All of those were in front of the Chief Commissioner. All of those documents are
now in front of this Court and properly filed.
I want to specifically address the letter that Mr. Silverman believes was not included in the return and
should have been included in the return. This letter was on the regional office file. The structure of the
commission is such that the Director’s offices and investigative functions are separate from the Chief of
the Commission and Tribunals, and this is to separate the adjudicative function in the review process
from the actual investigation, so that there’s a separation there when the Chief Commissioner reviews
the file. He does not pull the actual investigation file from the region and review all the memos,
correspondence, research, et cetera. He reviews the investigation report. His role is not to reinvestigate
the complaint. His role is to review the Director’s decision and decide whether or not it’s without merit.
So just to be clear, the Director’s side of the commission is separate from the -- from the Chief of
Commission’s side: separate offices, separate legal counsel, separate staff. The Chief does not involve -purposefully does not involve himself in the investigation. The letter in question was obtained from our
regional office by Mr. Silverman, which again emphasizes the separation in the function, because he just
went and got it. It references correspondence asking the respondent to explain their position that shelters
-- stand-alone shelters for men are not needed. The investigator references it in his report and he says, "I
wasn’t provided with anything else, except we did interview all of these witnesses, we did have a
fulsome response, I take that to be their response." So it doesn’t add anything, in any event, to this
judicial review.
Those are my submissions, My Lady.
THE COURT: Thank you very much, Ms. Ashcroft.
MS. ASHCROFT: Thank you.
THE COURT: Did you care to reply to either Mr. McDonough or Ms. Ashcroft with respect to this
MR. SILVERMAN: Yes, I would, thank you -THE COURT: All right.
MR. SILVERMAN: -- My Lady. To go -- to look at it again, this is a letter that would be more
described not just touching the matter, but is the heart of the matter. The complete -- it could be
described as the position that Alberta has taken, and it is unfair for me to try to defend a statement that
I’m not provided the information for. And if you notice that Exhibit -- Exhibit A for the application of
disclosure pertains to Mr. Gabriel’s letter of June 2, 2008, and if you notice that it was directed at the
honourable counsel for Alberta, that he himself decided that it was, I guess, above him to provide that
type of information and the investigator requested specifically. Additionally the response also notes that
Police, Justice, Health and Children’s Services do not indicate substantiated need for expanding the
shelter program to include men’s emergency shelters. The specific information on which the conclusion
that there is no need to expand the program is included -- to include men’s shelters is based would also
F:\paperzz\70096963.doc Page 19 of 42
be very helpful in my investigation. So the investigating officer notes that it is an important issue to be
part of the investigation. It was not included.
I am having difficulty to provide a fair response on something that I do not have. It’s difficult to fight
smoke and mirrors, and as I said, this letter or this data that the deputy minister makes reference to
which the investigating officer requested is relevant in terms of it is the issue. It is very relative -relevant because it is the main focus, it is the heart. And it is a statement that’s -- stands by itself, but has
no reference, no validity, it is open. And I would have to say that in order that I would request that
without -- without this study being provided to myself and to this Honourable Court that the heart of a
matter is -- of Alberta’s defence is invalid, is void, and hence, the -- this application should go, and my
Human Rights complaint should go before a tribunal, rather than the doing the whole process all over
Thank you, My Lady.
THE COURT: Thank you, Mr. Silverman. Anything further, Mr. McDonough?
MR. MCDONOUGH: No, thank you.
THE COURT: Thank you. Having heard the first two applications of Mr. Silverman, perhaps it’s an
opportune time to take a short break, and then I will come back and, Mr. Silverman, I’ll then have you
deal with the third matter before the Court this morning.
THE COURT: All right? We’ll just adjourn. I’ll come back down at 11: 30. Thank you.
THE COURT: All right, Mr. Silverman, I’ve heard your application and the response from counsel
with respect to the first two matters. Now, let’s turn to the matter of the judicial review, and I’ll invite
your submissions with respect to that.
Submissions by Mr. Silverman (Application for Judicial Review)
MR. SILVERMAN: Okay. As I tried to express previously, I would honestly like to say that I do not
feel that it’s appropriate for a Human Rights action to go to this stage. I certainly -- and I -- I mentioned
before, I’m more of a person who believes in the mediation process than I do in the adversarial process,
and that might be some of my own resistance as to why I might not have been able to follow all the
processes, as just it’s not my experience. I’ve tried my best, I honestly did.
But in terms of what I’m looking at and what I’m trying to express is that I filed a Human Rights action
and the Human Rights action was based on section ( )(a) and (b) and section (a) and (b). (a) and (b)
pertains to statements, publications, notices, and signs, and I have not brought that up because it would
just be another mess. I certainly do have a feeling of guilty at the amount of trees that had to come down
just for this. It amazes me.
But I--but I am focussing on section (a) and (b) pertaining to on the grounds of gender male and sexual
orientation, as well in the areas of goods, services, accommodations, and facilities. And that is what my - my Human Rights action was focussed on. And in terms of everyone’s understanding as to what it was,
I think that everyone has had in their responses -- have addressed 4(a), 4(b), as what my focus of the
Human Rights action is.
F:\paperzz\70096963.doc Page 20 of 42
And one of the issues that -- that I bring forward is errors that the Chief of -- has made. And in terms of
errors that the Chief has made, the Chief is -- responsibility of the -- of the Chief -- like, Slattery v.
. .. investigation must satisfy two conditions: neutrality and
And this is what the Chief was required to take a look at. So the responsibility of the Chief is to ensure
that the work, the effort of the investigator, the investigation office, was thorough. And as I brought up
pertaining to that letter that -THE COURT: Yes.
MR. SILVERMAN: -- the investigating officer -- because there was no response, the power -- the duty
of the investigator is to establish the facts. He cannot establish -- he was not able to establish all the facts
because he did not have the data that pertained to the heart of the matter. The investigator’s powers
allows him to demand the production for examination of records, and this is found in Alberta Human
Rights, section 23(1)(b) and (1)(c). Section 24 of the Alberta Human Rights allows the investigating
officer to go to a Provincial Judge in Provincial Court to satisfy the investigator’s evidence under oath
that there are reasonable grounds for an investigator to exercise a power under section (23)1, which
means that the investigating officer did have power and authority to push the matter of getting that
The other part that I found interesting about the investigating report which the Chief erred on as well,
was the fact that the investigating officer had meetings with six people, all six who were employees of
Alberta, which means I highly doubt whether any of them would -- even in an interview off-record
would disagree with Alberta’s point of view if their pay cheque is provided by Alberta. The unfairness
of the investigating report in that aspect was that I provided the investigating officer with professional
research individuals, one of them Eugen Lupri, who is Professor Emeritus Sociology, University of
Calgary, as well as Donald Dutton, who teaches at UBC. I understand the investigating officer did read
Donald Dutton’s book called "Rethinking Domestic Violence". I provided him with his phone number,
and evidently all the personal interviews were one-sided. There is no fairness or balance if only one side
of the point of view is heard. I really didn’t have an opportunity; have other people validating my
experience, my personal experience, as well as the issues pertaining to domestic violence.
And what I mostly would like to point out is the original Human Rights, which, in my brief you would
see is index 2, the original Human Rights form which I filed March 21st, 2006, reflects the areas of
goods, services, accommodations, and facilities, grounds gender male sexual orientation. The
investigator’s report did not investigate the filed complaint in the area of goods, services,
accommodations, and facilities. There is no reasonable -- there is no reasonable basis to proceed on the
allegation that shelter-funding practices discriminate. That was his reply to the issue of gender, goods,
and services. And what you will see in -- that’s found in index 3 of my brief.
And what you will notice is that Alberta Human Rights Act is very explicit in determining protected
areas and protected grounds on which a human rights complaint can be filed. Section 4(a), 4(b). The
human rights complaint form has a guide section called (d) which is to identify the area in which
discrimination took place, and section (e), to identify the grounds of discrimination. There are five areas
and grounds on which a human rights action can be filed. There is not a listing for "other", there is not a
listing for "funding", there is not a listing for "practices", there is not a listing in Alberta Human Rights
Act pertaining to shelter funding practices.
F:\paperzz\70096963.doc Page 21 of 42
Your -- My Lady, it -- it’s like, here I am making -- doing a judicial -- hah, judicial review pertaining to
human rights, and I very doubt whether you could reach a decision and find me guilty of fraud. They are
two different things. They are apples and dump trucks. Never mind the oranges. This is dump trucks.
Alberta Human Rights Act is very explicit as to what can be filed on in terms of areas and grounds.
And -- and if you take a notice on -- if I can find it. The -- the cross-reference pertaining to Alberta
Human Rights conditions in -- I must have hidden it on myself. Oh, here we go. Index 5 shows the
Human Rights complaint form, which in the -- indicates section (d), identify the areas, and section (e),
identify the grounds of discrimination. There is nothing about funding, process, or whatever. And on
page of that section you will notice a cross-reference of the five areas and grounds, which, in reality, My
Lady, if I was to try to file a human rights action on discrimination pertaining to the funding process
being biased, it would not pass first base. It would be thrown out because they are not areas within the
Alberta Human Rights Act.
(As read)
The Chief Commissioner is called upon to consider the evidence
gathered by the investigation [this is Callan v. Suncor ] in deciding
whether there is a reasonable basis in the evidence for proceeding to
the next stage.
It is impossible to proceed to the next stage if the -- the original complaint was never investigated.
And in the Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses
Association: (as read)
. ..a tribunal cannot, with impunity, ignore the requisites of its constituted
statute and decide questions any way it sees fit. It fails to discharge its
public duty and departs from legally permissible conduct. Judicial
intervention is not then only permissible but request in the public interest.
So I would have to say in -- in terms of I asked a question "Is the sky blue?" and Human Rights
answered, "The ocean is wet." Well, yes, I would have to agree the ocean is wet, but it is not the
question that I asked. So Alberta Human Rights, the Chief Commissioner, overstepped his bounds by
not acknowledging that the investigating report did not cover the original complaint.
In my appeal, the number one item of my appeal specified that the investigating officer did not
investigate. The investigating officer’s report was 33 pages. Thirty pages was dedicated to section 3, and
about a paragraph was dedicated to section 4. Or the other way around. Let me get that correct.
THE COURT: So you’re indicating, Mr. Silverman, if I understand your argument correctly, that
you’re -- you were not -- you were not satisfied with the quality of the investigation, and you felt that it
wasn’t appropriate for the Chief then on review to review the investigator’s report.
MR. SILVERMAN: It was the Chief’s responsibility to ensure the accuracy -THE COURT: The -- okay.
MR. SILVERMAN: -- of the report.
THE COURT: All right.
F:\paperzz\70096963.doc Page 22 of 42
MR. SILVERMAN: And I pointed out that the accuracy of the report was not valid in terms of I filed
on Alberta Human Rights section 4(a), 4(b), and what was investigated had absolutely nothing to do
with the complaint.
MR. SILVERMAN: Something that I also noticed pertaining to Alberta Human Rights -- and -- and -and there was a substantial focus, in my estimation, that there was a -- a process of conciliation in which
the Alberta Human Rights Commission could have initiated between the respondent and myself. And as
I said, I am open to mediation process, but I never heard anything pertaining to having conciliation with
the respondent.
MR. SILVERMAN: And that, in my belief, My Lady, could have solved a lot of the issues right there
and then, and we could have resolved the issues rather than be here. Not that I’m not enjoying myself.
So we have a role of -- of the gatekeeper. And in Mis v. Alberta, 2002, the conclusion of the Court of
Appeal has demonstrated that -- the Court emphasized that the test was somewhere in between an
arguable case and a reasonable prospect of success. Well, I think in terms of fact and law I could
demonstrate a reasonable process of success on the basis of gender discrimination, being male sexual
orientation, and goods and services. I had no party to the discussion of funding process. I was not able to
provide any input pertaining to the funding process. And by bringing up funding process, the
respondents have -- have brought up the issue pertaining -- as well as this could be found in the Chief’s
statement -- the Chief’s -- in the Chief’s dismissal he makes mention that the funding process is not
biased, all you have to do is get your funding from the Alberta Council of Women’s Shelters. And the
way the process, the funding process works, Alberta provides the money to Alberta Council for
Women’s Shelters, and Alberta Council for Women’s Shelters distributes the funding to the various
THE COURT: I think for the purposes of this discussion, Mr. Silverman, the workings of the funding
aren’t necessarily for me to hear. I think, if I understand your position, it was that you were unable to
have any part or comment with respect to how that works. Am I correct?
MR. SILVERMAN: In terms of -THE COURT: The hearing.
MR. SILVERMAN: -- the term "funding process"?
MR. SILVERMAN: It -- it’s just the funding process was brought up.
MR. SILVERMAN: And I just want to prove the invalid statements pertaining –
F:\paperzz\70096963.doc Page 23 of 42
MR. SILVERMAN: -- to the funding, but if you choose not to have me go there -THE COURT: Well, I think the point for today in terms of the judicial review is your identifying areas
of concern with respect to the matter before the Court, as opposed to the details of how it unfolded. So
I’m looking for -- from you for the areas of concerns or the areas where you feel that the Chief did not
properly consider the matter, because that’s what we’re here for today is a judicial review, not to rehear
the case on the merits -MR. SILVERMAN: No, I -THE COURT: -- but your concerns as to where, in your position, the Chief failed to adequately -MR. SILVERMAN: Hmm.
THE COURT: -- consider, or whatever. I don’t want to put words in your mouth.
MR. SILVERMAN: And I’m -- I’m -- I’m understanding.
THE COURT: Okay, thank you.
MR. SILVERMAN: I’ve probably sat in about 20 court sessions just to become familiar. The Chief
errored in his perception that the funding process was open. The Alberta Council of Women’s Shelters,
which is the funding process entity, will not allow any men’s groups to participate in their programs, so
that route -- so the Chief errored in determining that funding is accessible via that method.
The other method that was -- was brought up in the Chief’s dismissal was the issue of accessing
community funds. In order to be credible in terms of obtaining community funds the community
organization must demonstrate partnerships with the family violence community organizations. So he
was under the impression that it was possible to access this funding through community organizations.
These community family violence organizations have a no-men-allowed policy. One of these
organizations has a chair for the Calgary Humane Society, which means dogs and cats have a voice in
the family violence community, but men don’t. So he erred in that presumption that it was open. It is a
very restricted community.
And in terms of the -- the policy -- and -- and this was something that I found very interesting, as well as
my associates who has -- who have been supporting me. In the Brewer case law there was paragraph 37
which stated:
The policy of Canadian law (and doubtless English law) is plain.
The statutory tribunal should be patently neutral. It cannot do that
if it dons the uniform of one army, still less if it enters that army’s
front line and joins its bayonet charge.
I think that is quite appropriate, quite descriptive, and I will get to the -- that issue of the bayonet charge.
Pertaining to the admission of fresh evidence, I was able to -- which is -- which is accessible via Internet
access Alberta Human Rights, and the Code of Conduct for Alberta Human Rights, Citizen -- Rights and
Citizen Commission, on page :
This code is a living document, which will be amended from time to time as new concerns arise. So
what I am trying to bring forward is a new concern.
F:\paperzz\70096963.doc Page 24 of 42
THE COURT: Well, I think you made that argument -MR. SILVERMAN: Okay.
THE COURT: -- quite clear, Mr. Silverman -MR. SILVERMAN: Okay.
THE COURT: -- when we spoke about fresh evidence. I understood your -MR. SILVERMAN: Okay.
THE COURT: -- your position and argument there, so I don’t think it’s necessary for -MR. SILVERMAN: We don’t have to go into the living -THE COURT: No, we don’t have to review that.
MR. SILVERMAN: -- document again? Okay.
THE COURT: Thank you, though.
MR. SILVERMAN: Okay. One -- something that I would also -- and I--and I mentioned the research -the research provided by the respondent for the most part is fairly outdated and stale.
THE COURT: And we talked about that as well. I think I have your -MR. SILVERMAN: Okay.
THE COURT: -- your position on that.
THE COURT: And I understand it.
MR. SILVERMAN: And we spoke single-gender studies.
What I would like to bring up is case law pertaining to Human Rights decision based on protected
grounds, which seems that the respondent did not venture into. And the two court cases that I would like
to bring up is the matter in Ontario Human Rights of Barbara Turnbull, and in Calgary, Alberta Human
Rights panel, in the matter of Martyn v. Laidlaw. And both these instances in the -- the -- the area of
protected ground was physical disability, or -- or the ground was physical disability, which is the same
category as gender. And in the Martyn v. Laidlaw, if you notice in my brief on page of 13 of 23, you
have the -- the conclusion is: (as read)
It is the finding of this Panel that the Complainant was
discriminated against on the basis of her physical disability in
provision of on demand 24 hour accessible taxi services.
What I did in the areas of physical disability, I had substituted "gender male", and grounds 24 accessible
taxi, I substituted "domestic violence", and if you then read that the panel -- that the complainant was
discriminated against on the basis of gender male in the provision of on-demand domestic violence
services, it’s the same paragraph that I would love to see, My Lady.
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MR. SILVERMAN: Because in reality I think that that is what the whole case is about, being
discriminated against.
THE COURT: All right. So that’s -MR. SILVERMAN: He -THE COURT: -- the analogy that you’re making with the -MR. SILVERMAN: That I’m making, yes.
THE COURT: Okay, I -- I understand.
MR. SILVERMAN: The Human Rights pertains to the individual, the dignity of the individual, the
ability of the individual to access areas and services that are basically available to the general public.
And in terms of the previous court mention from the Ontario Human Rights, they were unable to see
movies at the Famous Player Theatres. So it wasn’t an issue of them providing a demonstrated need to
see the movie, which the Chief and the Deputy Minister seem to think, was important. It wasn’t the need
from them to demonstrate the need to see the movie. All they did was demonstrate that they did not have
access to the process of viewing the movie.
And in terms of the Supreme Court of Canada ruling on the same-sex marriage, nowhere in that case,
nowhere in the -- the -- the discussion is a demonstrated need for a marriage. So there is no
demonstrated need to see a movie, there is no demonstrated need for a taxi service. It’s the obvious
requirement of equal opportunity under and before the law. In both cases the Court’s position that the
individuals were neither party to provide evidence of demonstrated need to see the movie or the taxi
service, but focussed on the denial of the services.
And we went through the new evidence and the documentation and -- and what I would like to bring up
in terms of new evidence. I--I will not go there, but what I would bring up in terms of the recent
information that I’ve -- I got pertaining to an -- a -- a reasonable apprehension of bias being promoted by
Alberta Human Rights Commission. This pertains to a broad support of women’s issues, which I have
no issue with, which also includes a position described -- which Alberta Human Rights has an
individual, I believe her name is Wendy (phonetic), who is a woman’s issue person working at Alberta
Human Rights. By promoting the commission’s website, Human Rights Information Services, which
provided information pertaining to the recent conference that was held in Calgary, and that’s where the
issue, index 7, will -- this is the web page Alberta Human Rights -THE COURT: Yes.
MR. SILVERMAN: -- Information Service. And if you notice in the -- the back part there is a section
called "Significant Dates", and there is a significant date pertaining to virtually every group except for
men. And just to demonstrate that there are active international men’s focus is on index 8, which has the
12th anniversary of the International Men’s Day Global website, and the 13th international conference
pertaining to male survivors, A World of Healing. So there are significant dates representing for men
that can be listed on the Human Rights. If they’re doing one area, I would respectfully submit that you
do every area. You don’t leave a group out.
F:\paperzz\70096963.doc Page 26 of 42
MR. SILVERMAN: Exclusion is a form of discrimination, and the Supreme Court of Canada has ruled
on that. So I’m basically looking at that area, and it’s very, very hard to provide a demonstrated need if
the voice is not there. And obviously from what I’m experience, Alberta Human Rights has excluded the
male voice, so you cannot hear what’s on my mind if I’m not provided with the opportunity to speak.
And Alberta has had two major family violence conferences in Alberta. Two major ones. Well, one in
Calgary -- one across Alberta and the other one was in Banff. Both conferences, the male was excluded,
the male voice was excluded, so how can I demonstrate a need if I’m excluded? And again, exclusion is
a form of discrimination.
THE COURT: I understand your argument, Mr. -MR. SILVERMAN: Okay.
THE COURT: -- Silverman.
MR. SILVERMAN: So in terms of -- and -- and I guess I’m looking at gender symmetry and how it
acts pertaining to the lack of services that (INDISCERNIBLE) basically, it seems that the acts of
domestic violence are virtually the same, and in item -- index 9 you could actually see it graphically
represented. There is a difference, no doubt about it, but is it that significant of a difference to provide
100 percent of funding for one group -- or 100 -- 100 percent of the goods, services, accommodations,
and facilities, and zero for another group?
THE COURT: I think, Mr. Silverman, I -- I understand the position that you’re taking, but I have to -MR. SILVERMAN: On the -THE COURT: -- refocus you a little bit -MR. SILVERMAN: Okay.
THE COURT: -- in terms of the -MR. SILVERMAN: Okay.
THE COURT: -- purpose for us being -MR. SILVERMAN: Okay.
THE COURT: -- here.
MR. SILVERMAN: I’m -- I’m -- yes, I’m going to -THE COURT: We’re not rehearing the case, Mr. Silverman.
THE COURT: And that -MR. SILVERMAN: You don’t want to rehear it. Yes.
THE COURT: I need to direct you to your concerns, and you’ve -- you’ve indicated in terms of the
judicial review your position with respect to a number of issues. So I’m just wondering is there anything
F:\paperzz\70096963.doc Page 27 of 42
else that you want to add in terms of the concerns or positions that you have regarding the Chief’s
decision, and why -- and the basis for the judicial review?
MR. SILVERMAN: Okay. I--I guess the -- I’ve already discussed the Chief erred in his presumption
the funding processes not biased. What I would like to bring up is in terms of his position that there are
services available in the community for men. I have not disagreed with that from the beginning. I have
said that there is a lack of services. And in terms of lack of services, while Calgary Counselling -- as -as learned counsel has brought up, while Calgary Counselling Centre may provide counselling service,
they do not provide shelter, accommodations, advocacy for the individual, crisis phone line. And the
most serious phone calls that I seem to get are pertaining to access, visitation, and Maintenance
Enforcement. Just like the Calgary -- the Strathmore Wheatland Shelter is not part of Calgary, and they
may be in position to provide apart-time bed to a man if a woman is not using the bed, but they do not
provide counselling services, advocacy for the individual, crisis phone line, assistance with MEP, or
other available services.
So, yes, there are some services, but there’s not a complete inclusion of services. And to give you an
example, item 10 is from shelters for abused women, and it shows what are typical services that shelters
do provide.
THE COURT: So your basic position, if I understand you, Mr. Silverman, is that you don’t disagree
with the Chief when he says that there are services for men. Your position is that they’re not equal to
what’s available for women in the community?
MR. SILVERMAN: And -- and while one service may -- one service organization, like Calgary
Counselling has one program. That’s not services, that’s -THE COURT: Okay.
MR. SILVERMAN: -- one program.
MR. SILVERMAN: And Wheatland Shelter has one part-time bed. That’s not shelter beds -THE COURT: Okay.
MR. SILVERMAN: -- which was brought up. And there’s only one other part that I’m -- I’m going to
speak of, and then I’ll just go to -- to my conclusion very quickly. In determinating -- my original
complaint was on the basis of -- one of the items was gender orientation, which was strange to perceive,
but because I have this information in front of me, I thought it was important to bring up to this
Honourable Court.
THE COURT: But is this new information, Mr. Silverman, and -MR. SILVERMAN: No.
THE COURT: Or is this something that formed part of the decision that you have a concern with?
F:\paperzz\70096963.doc Page 28 of 42
MR. SILVERMAN: This -- this was -THE COURT: Okay.
MR. SILVERMAN: -- part of the original information. A copy of this document was submitted to -THE COURT: All right.
MR. SILVERMAN: -- the Chief, so it is not new. And this is item 12, which is employment
opportunity administrator research for GLBTT, which for those who do -- are not familiar with the term,
it’s gay, lesbian, bi-sexual, trans-gender, transsexual. It pertains to a funding program that was funded
by the Office for Prevention of Family Violence and Bullying, which is Alberta Children’s and Youth
Services. So they provided funding to the GLB community. And if demonstrated need is the basis for
them to say there is no demonstrated need for men’s services, the only thing I would like to bring up to
this Honourable Court, considering that the -- that the gay and lesbian population is estimated to be
approximately 2 to 3 percent of the total population, male victims of female-perpetrated domestic
violence represents percent of the population.
So if demonstratable need is a valid descriptor, then there is more of a need as demonstrated for the male
population than there is for the gay/lesbian population. The male population who are victims of domestic
violence is twice that of the total population of the gay/lesbian community. So if demonstratable need is
required for men who are less than women, the gay and lesbian population are significantly less than the
male population, but Alberta has provided services for the gay/lesbian population, and have ignored the
male population. So that is my reference to sexual orientation in the Human Rights, and in the
investigator’s report no mention was made to sexual orientation.
So, again, I -- I would say that the return is not complete because the information provided is an issue
that not only touches the matter but is the heart of the matter and doesn’t give me an opportunity to
THE COURT: All right.
MR. SILVERMAN: So in conclusion, certainly I have seen, you know, same-sex relations going from
a criminal activity into the legal definition of marriage. I have seen myself go from a man into a male
victim of female-perpetrated domestic violence, unable to access adequate support services to help with
the emotional scars that I’ve experienced.
I would have to say there is reasonableness in the expectation of filing a Human Rights complaint on the
basis of gender male sexual orientation, on the grounds of lack of services, facilities, and that -- that
complaint in its entirety is investigated in accordance to the Act -- the Alberta Human Right Act and the
laws of Alberta.
The Chief was not reasonable nor justifiable to determine that a mere 0.4 percent difference between the
instance of domestic violence between men and women provides one group with goods and services and
not the other. There is a total lack of reasonableness in the fact that when a Human Rights complaint is
filed on the basis of gender and lack of services that the conclusion is on the basis of a non-human rights
determination of funding practices.
And also in terms of demonstrated need, I would have to say demonstrated need is not a valid Human
Rights test. It is not a valid test for anything that I was be -- was able to find. That in reality, the onus is
on the respondent to demonstrate an undue hardship or to demonstrate a reasonable or justifiable reason
for discrimination in the circumstances. That is the law, and it had not been followed, either by the
F:\paperzz\70096963.doc Page 29 of 42
investigator and certainly was not followed by the Chief. He focussed on that demonstratable need, and I
believe that demonstratable need or a demonstrated need will set a dangerous legal precedence by
accepting the term "demonstrated need" as a valid test, which means that if a woman’s being paid
percent less wage than a man doing the same job with the same experience, in order to -- for her to file a
successful Human Rights complaint on the basis of employment and equity, she would have to
demonstrate the need for the additional 25 percent.
Or even looking at it in a broader sense, I -- I would imagine that if demonstrated need becomes a legal
precedence then we might as well get away -- do away with the Federal Child Support Guidelines,
because they would be replaced with demonstrated need.
And I would have to say that the Chief not only dons the uniform, but certainly has joined the bayonet
charge, and is actually leading the charge by supporting the idea that domestic violence against women
should become a hate crime.
So I ask this Honourable Court that the -- that the fresh or refreshed evidence is allowed according to the
Alberta Human Rights section ( ), that the return be considered incomplete without the documents that
pertains to the heart of the matter, that the Chief’s decision be considered not attain -- not attaining the
standard of reasonableness, that demonstrated need or demonstratable need be declared an invalid
Human Rights test, that this Court does the right thing as well as the legal precedent of granting the
request that the originally -- the original filed complaint pertaining to gender male sex -- sexual
orientation on the grounds that denial of access to goods and services be forwarded to the
Alberta Human Rights Tribunal, that this applicant be awarded costs.
And with that, thank you -THE COURT: Thank you very much -MR. SILVERMAN: -- My Lady.
THE COURT: -- Mr. Silverman, for your arguments. Counsel, I look at the -- the time, and I think it
would be appropriate to take a break. I’d like to just continue, but that’s not fair to madam clerk or
others in the courtroom, so we will adjourn. And, Mr. McDonough, I’ll call on your first when we return
and then Ms. Ashcroft. It will also give counsel a further opportunity to look at Mr. Silverman’s brief,
which I think you’re sharing a copy of. And is that suitable for the interim, or shall I lend -- I haven’t
marked my brief. I’m certainly happy over the noon hour, Ms. Ashcroft, if you’d like to borrow mine to
MS. ASHCROFT: Sure. Thank you.
THE COURT: Okay. All right. Madam clerk, if you’ll just lend that to Ms. Ashcroft. So we’ll
reconvene then at PM and I’ll hear from counsel. Thank you very much, everyone. We’re -- we’re
adjourned till 2.
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Certificate of Record
I, Leslie Stroobant, certify that this recording is a record made of the evidence in the proceedings in
Court of Queen’s Bench, held in Courtroom 1603 , at Calgary, Alberta, on the 21st day of December,
2011, and that I was the court official in charge of the sound-recording machine during the proceedings.
Certificate of Transcript
I, Jeannie Rumary, certify that
(a) I transcribed the record, which was recorded by a sound-recording machine, to the best of my skill
and ability and the foregoing pages are a complete and accurate transcript of the contents of the record,
(b) the Certificate of Record for these proceedings was included orally on the record and is transcribed
in the transcript.
Digitally Certified: 2012-01-06: 11:18:44
Jeannie Rumary, Transcriber
Order No. 12522-11—1
Pages: 43
Lines: 1796
Characters: 70535
File Locator: 3004b48a388f11e1b7270017a4770810
Digital Fingerprint: 72c7ff3656e5e30fc68388ec695142869204cc1b7a4de26fd21ba501579340c6
Proceedings taken in the Court of Queen’s Bench of Alberta, Courthouse, Calgary, Alberta
December 21, 2011
Afternoon Session
The Honourable
Court of Queen’s Bench
Madam Justice Veldhuis of Alberta
(No Counsel) For the Plaintiff
S.P. McDonough For the Defendant Alberta Children & Youth Services
J.R. Ashcroft For the Defendant D.B. Mason, Q.C., Chief of Commission and Tribunals, Alberta Human
Rights Commission
L. Stroobant Court Clerk
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THE COURT: Mr. McDonough.
Submissions by Mr. McDonough (Application for Judicial Review)
MR. MCDONOUGH: I’d like to begin by giving the Court an overview of the submissions that I
propose to make this afternoon.
THE COURT: Could you just speak up slightly? Thank you.
MR. MCDONOUGH: Yes, pardon me. I--I’d like to begin by essentially providing a roadmap to the
Court for the submissions that I’m going to go on to make. First off, I want to make a couple of
comments about the nature of judicial review. Second, I want to speak to the concerns that Mr.
Silverman raised this morning about the investigation. Third, I want to address the services versus
funding distinction that Mr. Silverman proposes to draw. Fourth, I’ll speak to the standard of review -pardon me -- the standard of review. Fifth, I want to address three findings that the Chief made that I
submit are clearly reasonable and that they justify his decision. Those findings are that women are
disproportionately the victims of severe domestic violence, that there are services available to male
victims, including Mr. Silverman, and that shelter funding is provided in accordance with demonstrated
need. Next I want to turn to the suggestion that the Chief made an error with respect to the sexual
orientation aspect of Mr. Silverman’s complaint, and, finally, I want to speak to the issue of the
appropriate relief.
Beginning then with the nature of judicial review. Judicial review, of course, is a not a new hearing. In
fact, it’s not even an appeal. It serves a very important function, but a limited function, and that function
is ensuring that tribunals stay within their statutory authority. Sara Blake makes this point in her
"Administrative Law in Canada" text, and that’s at tab 1 of the authorities that I’ve filed with the Court.
And I wonder if I might refer the Court to that -THE COURT: Yes.
MR. MCDONOUGH: -- tab. So this is tab 1, and the highlighted portion there says: (as read)
A Court’s powers of review are narrow. It does not retry the matter that
was decided by the tribunal. A reviewing Court is not concerned with
the merits of the case before the tribunal, nor with the wisdom of the
tribunal’s decision. Its sole concern is whether the tribunal properly
exercised powers conferred upon it by statute.
And a second and related point that I’ll get into in more detail when we get to the standard of review
discussion, is that the guiding principle when we’re speaking about judicial review and the
reasonableness standard is deference.
I’ll move on now to address Mr. Silverman’s concerns about the investigation, and Mr. Silverman raised
two specific concerns. First, Mr. Silverman indicated that the investigator had spoken to six employees
of the respondent and not a commensurate number of people that he would have liked investigated or
spoken to. Well, if we go to tab R of the return, that’s the investigation report. And I’ll direct the Court’s
attention to page 2 of the investigation report. So this is at tab -THE COURT: I don’t -MR. MCDONOUGH: -- R.
F:\paperzz\70096963.doc Page 32 of 42
THE COURT: I don’t have the -- unless -- did you reproduce the investigation report in -MR. MCDONOUGH: No. No.
THE COURT: No, that’s fine. And I left that upstairs just because of the -MR. MCDONOUGH: Yeah.
THE COURT: -- sheer volume. So -MR. MCDONOUGH: That -- that’s fine. I--I-THE COURT: That’s fine. Thank you.
MR. MCDONOUGH: -- think I can -- I think I can summarize it quite -THE COURT: Yes.
MR. MCDONOUGH: -- concisely. Page lists the specific people that the investigator interviewed. First
person: Earl Silverman, complainant; second person, Sheryl Fricke, Executive Director, Office of
Prevention of Family Violence and Bullying, yes, she’s an Alberta employee; Wayne Hill (phonetic),
yes, he is a former police officer, now, he -- at the time an Alberta employee; and Ernie Pudwell
(phonetic), also a former police officer and then an Alberta employee. So there’s three. The remaining
people, though: Christine Berry, the Director of Family Violence, Calgary Counselling Centre, she’s not
an -- a Alberta employee. She’s someone who provides -- or at least the Calgary Counselling Centre is
an institution that provides counselling to male victims and researches the needs of male victims, among
other things that it does.
The investigator also interviewed various unsuccessful CIF. That’s the Community Incentive Funding
applicants. So these are people that Alberta did not provide funding to. These are -- are not Alberta
employees, and one would think that they may, in fact, be adverse to Alberta’s position.
And , finally, the investigator interviewed a counsellor at the Strathmore Crisis Society. Again, this is
not an Alberta employee.
A second concern that Mr. Silverman raised, if I understood it correctly, was that he did not have a
chance to make all of the submissions he wanted to the investigator. I’m not aware of any limits on his
ability to make submissions, but assuming that he’s accurate in saying that, I would note that the appeal
before the Chief proceeded as almost a fresh hearing in the sense that both sides were permitted and
encouraged to submit whatever -- whatever further information they so chose. In fact, Mr. Silverman
submitted four thick volumes of -- of further information. So if, in fact, there was any deficiency at the
investigation stage, it was certainly corrected at the appeal stage.
And maybe I should take a moment to highlight the fact that here -- we are here on judicial review of the
Chief’s decision, and that’s the decision at issue.
I’ll turn now to the services versus funding split. On that point, the first comment I -- I would make is
that the Chief did specifically find in his decision both that there are services available to male victims
as well as address the funding issue. So he didn’t limit himself to the funding issue. He did find there are
services available to male victims.
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Second, and -- and I think that this is an important point that’s been lost, subject to some limited
exceptions, such as funding for the Crisis Line that serves both male and female victims, Alberta is not a
service provider. They don’t directly provide services to men or women. Things like shelters, it’s not
Alberta providing the shelter services; rather, Alberta provides funding, and -- and that’s how Alberta
gets involved in this complaint of Mr. Silverman’s. And our position, which the Chief has accepted, is
that the funding is not provided in a discriminatory manner.
I’ll -- I’ll then move on to discuss standard of review. The leading case on standard of review is, of
course, the Dunsmuir decision from 2008. And one of the key findings in that decision is that there is no
longer a need to conduct a standard of review in each and every case if the standard of review for a
particular issue has already been authoritatively determined by a Court. The standard of review in the
circumstances of a judicial review of the decision of the Chief, such as at -- before the Court today, has
been authoritatively settled as reasonableness.
I won’t take you through the -- all of the cases that I’ve found this, but there is a citation at paragraph of
my brief. I believe there’s three or four citations at paragraph 40 of Ms. Ashcroft’s brief. I would submit
it is beyond dispute that the standard of review we’re dealing with today is reasonableness, and I won’t
go into the full standard of review analysis and the four factors. That -- that is included in Ms.
Ashcroft’s brief too, in case the Court is interested. I do, though -THE COURT: That’s -MR. MCDONOUGH: -- want to speak about what reasonableness means, and there are some cases
before the Court on that. It starts with -- with the Ryan (phonetic) decision in 00 , which was the leading
case at the time on reasonableness, 0 and that’s quoted in Ms. Ashcroft’s brief, and I --and I won’t read
that to the Court. Then there’s Dunsmuir itself. And recently this year there was a decision called Mowat
(phonetic), and that -- I have quoted from that decision in my brief. And I actually thought that I had
included the case in my book of authorities, and I refer to it as tab in my book of authorities, but in
preparing for court today I -- I notice that I actually omitted to include that case, so I brought a copy
with me of the relevant passage.
But the -- the latest authority is actually the -- a case called Newfoundland and Labrador Nurses’ Union.
That case just came out last week, so it’s not included in the briefs. I did provide copies to Mr.
Silverman and Ms. Ashcroft very shortly after the case was released, and I’d like to provide a copy to
the Court as well.
So what I -- I propose to hand up then is the Newfoundland and Labrador Nurses’ Union case, the
Mowat case, which I’ve now given to my friends and I’ve already quoted from in my brief. I also note
that I sent my brief in initially by fax and I’ve -- pardon me, I’ve brought with me a bound -THE COURT: All right.
MR. MCDONOUGH: -- copy in case of -- it may be of assistance to the Court, so -- 0
THE COURT: Thank you very much.
MR. MCDONOUGH: And may I pass those materials up? Yeah.
THE COURT: Thank you.
MR. MCDONOUGH: So, again, this Newfoundland and Labrador case is a very recent decision. It’s
from it looks like December 15th of this year, and it provides a--a helpful discussion, I think, of the
F:\paperzz\70096963.doc Page 34 of 42
reasonableness standards, so I’d like to take the Court to that. This begins at paragraph of the decision,
and there the Court starts by quoting from Dunsmuir, the case that was previously already referred to in
our briefs. And -- and I believe those passages were either quoted or -- or at least referred to, so I won’t
read them again. But then in -- in paragraph 12 the Court says: (as read)
It is important to emphasize the Court’s endorsement of Professor
Dyzenhaus’s observation that notice -- that the notion of deference to
administrative tribunal decision-making requires "a respectful attention to
the reasons offered or which could be offered in support of a decision".
And then the Court goes on to quote from Professor Dyzenhaus’s article. And in the -- atthe second
sentence of that quote the Court makes what I think is a -- it’s a very strong indication of the Court’s
view of the reasonableness standard. It says: (as read)
For if it is right that among the reasons for deference are the appointment
of the tribunal and not the court as the front line adjudicator, the
tribunal’s proximity to the dispute, its expertise, etc, then it is also the
case that its decision should be presumed to be correct even if the reasons
are in some respects defective.
The Court goes on -- really, I -- I think all of the paragraphs up to the end of paragraph at least are
relevant, but I’m going to skip ahead to paragraph , where the Court rules as follows. They -- they quote
from a decision of Justice Evans from the Federal Court of Appeal, who says: (as read)
. ..that Dunsmuir seeks to "avoid an unduly formalistic approach to
judicial review". He notes that "perfection is not the standard" and
suggests reviewing courts should ask whether "when read in light of the
evidence before it and the nature of its statutory task, the Tribunal’s
reasons adequately explain the bases of its decision".
And then the Supreme Court of Canada goes on to say: I found the description by the Respondents in
their Factum particularly helpful in explaining the nature of the exercise:
When reviewing a decision of an administrative body on the
reasonableness standard, the guiding principle is deference. Reasons
are not to be reviewed in a vacuum -- the result is to be looked at in the
context of the evidence, the parties’ submissions and the process.
Reasons do not have to be perfect. They do not have to be
And, Madam Justice, it -- it’s my respectful submission that the Chief’s decision in this case would pass
muster on -- on any standard of review, including correctness. However, the standard of review that does
apply is the reasonableness standard, and I would submit it clearly meets that standard. So from there
then I’ll -- I’ll go on to look at the Chief’s findings. And the Chief concluded that women are
disproportionately the victims of the most severe forms of domestic violence, and at least implicitly it is
therefore appropriate that more services aimed at victims of severe domestic violence are directed
towards women. The Court must approach this conclusion with deference, having regard to the
reasonableness standard that I’ve previously outlined, and look to see is there any evidence to support
this conclusion. And my suggestion is, not only is there some evidence, the evidence is overwhelming.
First off, there’s recognition by the Supreme Court of Canada, the Alberta Court of Appeal, the United
Nations, and the World Health Organization on this point. That’s referred to at paragraphs 36 to 38 of
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the brief that I’ve filed with the Court. I’ll just read the quote from the Alberta Court of Appeal, and
that’s at paragraph 37, where the Alberta Court of Appeal, in commenting on the status of women as the
primary victims of domestic violence -- pardon me, of -- of domestic assault, said: (as read)
We shall call it "wife assault", because it is almost always abusive behaviour
by a man towards a woman, not by a woman towards a man.
And, My Lady, the -- the statistics bear this out, at least with respect to the more severe forms of
domestic violence. And some of these statistics are included at paragraph 39 of the brief that I’ve filed,
and these are -- are taken from materials that were put before the commission. Specifically, women
represented percent of victims of reported partner assaults from the 1998 to 2004 time period, women
were more than five times as likely to be the victim of spousal homicide during that period, six times
more likely to receive medical attention, five times more likely to be hospitalized due to injuries, and
much more likely to fear for their lives.
There certainly are some statistics that suggest that gender symmetry is closer than that, and these
statistics, I think, are best explained in Professor Kimmel’s (phonetic) report, which is one of the
documents that I included in my book of authorities. It’s actually something that we put before the Chief
as well, so it’s in the return also. And essentially Professor Kimmel shows how when you factor in
context, severity, and reporting issues, you see that gender symmetry is at the lower end of the severity
scale. So there is some gender symmetry at the low end of severity, but as the domestic violence severity
increases, gender symmetry disappears.
There was also, though, firsthand evidence from witnesses in this particular case. And I’m mindful that
the Court doesn’t have the return immediately present, but perhaps I can give you a -- a reference. So,
again, in the investigator’s report at page 6, the investigator spoke to Mssrs Hill and Padwell. These are
two individuals who were former police officers but now working to help protect high-risk victims of
domestic violence. Mr. Hill indicated that in his work approximately three of 20 victims referred to him
were -- were males, and none of them were ever at great enough risk to warrant involvement in the
program. Mr. Padwell stated that in his experience 90 to 95 percent of acts of family violence were
committed by men, and in his experience with high-risk victims he had only had one man that he dealt
with. So my -- my submission on this point is that the Chief’s conclusion was reasonable.
And the Chief also concluded that there are services available to male victims of domestic violence and
that Mr. Silverman has himself availed himself of some supports. This conclusion too is reasonable.
Again, referring to the return, at tab H of the return is the submissions that Alberta made in response to
Mr. Silverman’s appeal. At paragraphs 15 to 24 of those submissions there’s seven specific services they
include: individual counselling, group counselling, crisis lines, some -- some supports for men fleeing
domestic violence. Alberta also contributes funding to the Calgary Counselling Centre, which is a key
organization because they do a number of things. One, they -- they do provide individual counselling,
they also provide group counselling, but third and importantly, they conduct research into the needs of
male victims of domestic violence. So my submission on this point is that, again, the Chief’s conclusion
was reasonable.
Next, I want to speak to the conclusion that shelter services are provided on the basis of demonstrable
need, and I suggest this conclusion too is reasonable. The file was from -- from the information that was
provided to the commission. The investigator spoke with Ms. Fricke, the Executive Director of the
Prevention of Bullying and Family Violence office, and his notes from that are -- are -- or his report of
that conversation, or that interview, in any event, is at page 28 of his report. And there Ms. Fricke
describes the manner in which organizations apply for a contract. And, again, to -- to be clear, the way
this works then is if you’re seeking to run a shelter, you -- you may get funding from -- from Alberta,
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but it’s not Alberta itself that’s -- that’s running shelters. So what happens is organizations come to
Alberta looking for funding, and here’s what Ms. Fricke says: (as read)
Any organization seeking funding for a shelter must submit a sound business
plan that includes reliable information which demonstrates a need for the
shelter services in the region where it is proposed. Further criteria include
whether or not the proposed shelter is secure, whether there is cooperation
from other emergency services, including police, and whether there is
community-based support. There may be broad contextual factors to consider
as well.
So that -- that’s at page 28 of the report. There’s no requirement that you be a member of the Alberta
Counsel of Women’s Shelters to get funding.
Now, it may be that at the time of this report, and it may be even the case at the time of today, that all of
those organizations who did happen to get funding were members of this organization, but that’s not a
requirement for funding. That would just be an indication of who was able to establish demonstrable
need. In fact, at the time of the investigator’s report I don’t think that there had even been a -- a male -an applicant for a men’s shelter who had attempted to demonstrate the need for the shelter.
And there’s further information that goes to this point as well that’s included in the investigator’s report.
The investigator spoke to Christine Berry, the -- the person I referred to when we discussed who he
interviewed at the Calgary Counselling Centre. I-- I believe she’s the director there. And in the course of
providing their services and research Ms. Berry indicated that they’ve had 41 men calling -- calling,
reporting abuse. Three of these men have asked about shelter, and one, one man has actually followed
up on a shelter.
Now, there are options for men who are fleeing violence, and this information was before the Chief as
well. There’s the Wheatland Shelter, which has one bed which is available to men. As Mr. Silverman
has pointed out, it’s not a men’s only shelter, there are also women who receive services there. There’s
the Kirby House which provides shelter services to both men and women, and that particular shelter
service is directed to people 55 years and over. And there are also Alberta work benefits for people who
need emergency assistance in fleeing violence. There’s the possibility to get a fleeing abuse benefit of
up to $ 1,000, and even hotel vouchers, if -- if need be.
In summary on this point, having regard to the evidence that was before the Chief, including the
statistics, the information from the witnesses, the fact that no one had established -- or, pardon me, had
submitted a plan establishing a demonstrated need for a men’s shelter, the Chief’s conclusion that there
had been no need demonstrated was reasonable.
I’ll then move on to discuss the sexual orientation aspect of Mr. Silverman’s complaint. And Mr.
Silverman’s argument on this point, if I understand it, is that there are -- he referred to one service.
There -- there is a service, I suppose, available to members of the gay, bisexual, lesbian, and transsexual
community, and there are no services available to male victims of domestic violence; therefore, males
are being treated differently.
The Chief acknowledges this ground in the introductory portion of his decision. He acknowledged the
sexual orientation complaint. He didn’t expressly deal with it separately in his reasons, but his findings
do address it completely. In particular, his finding that there are supports available to male victims of
domestic violence undermines the key premise to Mr. Silverman’s argument on this point, which is that
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there are no services available to male victims of domestic violence, but are some for gays, bisexuals,
lesbians, and transsexuals.
Further, and more specifically, Alberta does provide funding to the Calgary Counselling Centre, which
does conduct research into the needs of male victims. This funding for gays, bisexuals, lesbians, and
transsexuals that Mr. Silverman referred to was in regard to conducting research.
And, Madam Justice, in -- in summary, the Chief’s conclusions on all of the main points are reasonable.
They’re supported by the material that was before him, and they were certainly open to the Chief. The
ultimate conclusion that there is not sufficient merit to this complaint to warrant a hearing is likewise
reasonable. It follows naturally from the Chief’s other conclusions.
In terms of the relief requested, Alberta’s position is that this application should be dismissed for the
reasons that I’ve already discussed. In the event that I am in error on this point, though, and the Court
deems it appropriate to quash the Chief’s decision, then the remedy -- the ordinary remedy and the
remedy that would apply in this case would be the matter would be remitted to the Chief to reconsider in
accordance with any directions that the Court might have. And I have included a case called Oakwood
Developments from the Supreme Court of Canada. It’s on that point alone, not specific to this context,
but it goes to the point of the fact that the statute places this decision-making authority in the hands of
the Chief, and it’s for the Chief to decide whether a hearing is appropriate or not.
Those are the comments I have, subject to any questions the Court might have.
THE COURT: Thank you very much, Mr. McDonough. Ms. Ashcroft.
Submissions by Ms. Ashcroft (Application for Judicial Review)
MS. ASHCROFT: I just have two short points, ’cause, as you know from my brief, the Chief
Commissioner is not addressing the merits of -- of the case.
The first point comes about because of Mr. Silverman’s comments with regard to the neutral role of the
Chief Commissioner. He references the Brewer case. I just want to be clear that the Brewer case deals
with the Chief Commissioner’s role on review in a very particular set of circumstances, which, in actual
fact, has been narrowed in the Leon’s Furniture case, which I also included. That was not speaking to
his neutrality or bias in any respect at the -- the appeal level under section 26 of the Act.
In just reviewing Mr. Silverman’s materials that were not provided to my friend and I, I just fully
understand this a little bit more. I--I’m taking his position to be that because the Chief Commissioner
was part of the commission which hosted a Human Rights conference and that one of the speakers spoke
to domestic violence as a hate crime against women, that that somehow compromises his neutrality. We
would submit that the -- the test for bias is much, much higher than anything like that, and clearly that
has not been met and his neutrality not -- not compromised in any sense.
Secondly, I want to address the standard of review very briefly, in particular with regard to the Brewer
case. There were a couple of decisions on Brewer. Under tab 13, Brewer number 2, as we call it, dealt
with the substantive issue of judicial review. In the Brewer case the Court of Queen’s Bench had
overturned a decision by the Chief Commissioner, holding that it was not reasonable. On appeal the
Court of Appeal in paragraph 18 spoke to that question in terms of the reasonableness standard.
So we’re at tab 13
THE COURT: Mmm hmm.
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MS. ASHCROFT: -- paragraph 18. And the Court of Appeal held: (as read)
While the chambers judge correctly stated that the standard of review is
reasonableness, it is not clear that that standard was actually applied.
The chambers judge stated that the Chief Commissioner "gave
inappropriate emphasis" to the lack of a firm diagnosis; that he was "not
justified" in his criticism of the respondent’s failure; that the request for
current medical information did "not have the significance"; that the
evidence "did not justify the conclusion" that the respondent was not
disabled. This is the wording of a correctness review. Rather than
subjecting the decision to review for reasonableness, the chambers judge
substituted his own decision for that of the Chief Commissioner on a
number of points.
And I simply point that out because we have the two tests which use the term “reasonableness" in
different ways. The reasonable basis in the evidence test is the standard that must be applied by the
Chief Commissioner, but this Court cannot then apply that same standard in determining whether or not
it goes forward. The Chief Commissioner’s decision is subject to a review of reasonableness generally.
And sometimes that’s a little bit confusing, I know, in terms of looking at the reasonable basis in the
evidence test and then subjecting the Chief’s standard to the reasonableness test.
Those are all my submissions, thank you.
THE COURT: Thank you very much. Mr. Silverman, did you wish to respond at all now that you’ve
heard the submissions of Mr. McDonough and Ms. Ashcroft?
MR. SILVERMAN: Yes. Thank you. I’m glad to see that we weren’t retrying the issue, but I certainly
heard a lot of information going over again.
A couple of things that I would like to point out. Kimmel’s report: firstly, it was not a study, but a
personal opinion, and it was dated 2002 , as I said, using outdated information. While I -- as I stated
previous, and it’s found in -- in index 7 or 8 pertaining to services that are available in women’s shelters,
that there isn’t a single facility in the Province of Alberta that would have more than two services
available for a man.
And I think it’s very, very important to also point out that I never said there was no services. Right from
the original complaint, the complaint stated there was a lack of services. Albeit, I’ve endeavoured to
seek out some services, they were -- as a consumer the only positive way to describe them is pathetic.
There is not option. I do not have the options that are available, I do not have choices that are available.
It is very restricted. And just as the learned lawyer has pointed out, the Kirby Centre has shelter services,
but it’s for seniors 65 and over, and the majority of the domestic violence cases are between the ages of
18 and 32, so it certainly does not benefit the area that the most severe cases are. They are eliminated
and not provided any services.
In terms of funding contract from the government, in order -- as the Chief mentioned in his letter of
dismissal, the funding is directed to the Alberta Council of Women’s Shelters, and from there the
Alberta Council of Women’s Shelters distributes the funding. Alberta Council of Women’s Shelters,
their prime mandate and only mandate is to benefit women. And certainly in speaking to the Executive
Director Jen Reimer (phonetic) in Red Deer, she said, "Well, if you want anything, establish your own
men’s services."
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So there are a very limited amount of services. And as I previously stated, what the Calgary Counselling
Service may have as a service, Strathmore does not have a service. So t’s not like the services are in one
place, so it’s the service is lacking.
In terms of severe domestic violence, I pointed out index , that you take a look at severe, and a push, a
shove, or a slap is deemed more severe in the upper part, but on the lower part of definitions, kicking is
more severe. And -- and I think, by all means, a kick to the groin in my estimation is more severe than a
But also in -- in the other page following in -- in section , intimate partner homicides in Canada, and as I
stated previously, the -- the living data demonstrates that we’re now looking at -- of three people who
are dead due to domestic violence, one is a man.
Do they -- excuse me, Your Honour, do they rebut and I have my final statement, or is this my final
THE COURT: I think -- I think probably, given the reports and what I’ve heard from counsel, unless
they wish to speak any further, this would be your opportunity to make your final conclusion.
MR. SILVERMAN: Final? Okay.
MR. SILVERMAN: Okay, I just wanted to be sure on that. And -- so to be clear in terms of -THE COURT: Now, keep in mind, Mr. Silverman, when you summed up before lunch, I gave you the
opportunity -MR. SILVERMAN: Yes.
THE COURT: -- and you, I think, gave me the bulk -MR. SILVERMAN: Yes.
THE COURT: -- of it. It’s only in response to what Mr. McDonough and Ms. Ashcroft have submitted
after lunch.
THE COURT: If you have anything further, you don’t need to repeat your initial position. I’ve got that.
MR. SILVERMAN: Okay. In terms of the services that Alberta provide, as one -- as the last statement,
found on the Alberta Human Rights website, government services, what you need to know,
discriminatory access to government programs based on race, ancestry, gender, or any other protected
grounds except age -- and it is defined: (as read)
Government service providers are responsible for ensuring that their
services do not discriminate against members of the public based on
any of the protected grounds.
And that is what my original Human Rights complaint was: gender and lack of services and facilities. If
a government service has required -- has a requirement that would discriminate against people based on
protected grounds like mental disability or gender, the service provider has a duty to accommodate those
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affected to the point of undue hardship. And that has not been demonstrated by Alberta as undue
hardship or justification, or in some circumstances, discrimination may be reasonable and justifiable.
That has not been done either, and I think why I may -- while I -- I may be certainly more versed on the
fact than I am on the law, I think in terms of deference, deference should be paid to the law -- to the act
of -- the Human Rights Act in ensuring the quality and dignity of all people.
Thank you, My Lady.
THE COURT: Thank you very much, Mr. Silverman. Counsel, anything further?
MR. MCDONOUGH: No, thank you.
THE COURT: All right.
THE COURT: Thank you. Thank you, everyone, for your able submissions today. And, obviously, as
all of the parties have been involved in this far longer than I have, I’m going to require a bit of additional
time to complete my review of the materials that I have before me and -- and the submissions that I’ve
heard today. So this matter -- my decision will be reserved with respect to your three applications, Mr.
Silverman. And I would just ask -- I will render my decision as quickly as possible, and I want you to be
sure, Mr. Silverman, that your contact information is with the clerk.
Is what you’ve got in terms of this 56th Avenue address and phone number current?
THE COURT: All right. Okay. So we’ve got a place to contact you when the decision is ready, and, of
course, I’ve got the counsel addresses as well. So I will adjourn this matter pending my decision. And,
again, I thank everyone for their submissions today.
MR. SILVERMAN: Thank you, My Lady.
THE COURT: Thank you.
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