On March 17, 2016 the Honourable Mr. Justice Donald Lee ruled that Mr. Jan Buterman’s appeal regarding October 2014 and February 2015 decisions of the Alberta Human Rights Tribunal should be dismissed.
On October 14, 2008 Mr. Buterman was dismissed from his position as a substitute teacher with Greater St. Albert Catholic Schools (“St. Albert Catholic”) for being transgender. Mr. Buterman was advised that changing gender was contrary to Catholic teachings, and as such St. Albert Catholic had “no choice” but to remove him from the substitute teacher list.
As a result of his dismissal, Mr. Buterman filed a Human Rights complaint in October 2009 alleging discrimination on the basis of gender and mental and physical disability. The complaint was originally accepted and then rejected in May 2011.
Almost immediately after Mr. Buterman filed his complaint in 2009, the Board of Trustees of St. Albert Catholic offered to settle. They proposed a $78,000 payment in exchange for Mr. Buterman’s agreement to never advance any further Human Rights complaints or legal proceedings in relation to this matter. He was also to sign a confidentiality agreement barring any discussion regarding the settlement. Mr. Buterman rejected this offer due to the onerous terms that were attached to the settlement amount. Despite Mr. Buterman’s refusal to settle, St. Albert Catholic sent a letter to Mr. Buterman instructing Mr. Buterman to sign settlement documents. The letter also included a cheque for the $78,000 payment originally offered. Mr. Buterman rejected this offer and returned the cheque. Further correspondence continued but Mr. Buterman never thought a settlement agreement had been reached. In 2011, Mr. Buterman filed an appeal with the Chief of Commissions and Tribunals in order to have his Alberta Human Rights Commission case continued. Mr. Buterman’s appeal was successful and he was granted a hearing. However, there was a preliminary hearing by the Alberta Human Rights Tribunal to discuss whether a settlement had been reached. Two out of three tribunal members found that a settlement had been concluded.
Mr. Buterman filed for judicial review of the Alberta Human Rights Tribunal decision. He took issue with findings regarding when an offer was made, when the offer was accepted, whether a binding contract was formed and whether the agreement was unconscionable and therefore unenforceable. Justice Lee found that there was offer and acceptance of the settlement offer. He also concluded the offer’s terms were clear and that a payment of $78,000 for withdrawal of the Human Rights Complaint, agreement that no further Human Rights complaint or legal process would be started, and agreement prohibiting disclosure were properly set out.
Mr. Buterman argued that even if a binding contract of settlement was found, it should be disregarded on the basis of public policy. He argued that the clause asking him to give up potential future human rights complaints against St. Albert Catholic as well as other entities not part of this claim would infringe his constitutional rights.
Justice Lee disagreed and found that the offer was not unconscionable. The $78,000 offer representing five years of substitute teaching income was fair. He also concluded that it was reasonable to request Mr. Buterman never again launch a Human Rights complaint against St. Albert Catholic or any other Catholic school in Alberta. Specifically, Justice Lee stated the following: I am sympathetic to the Appellant’s argument that the wording of this settlement documentation was so broad as to be unconscionable. But a confidentiality clause regarding the settlement would be of no effect if Mr. Buterman was allowed to discuss the content of his complaint against St. Albert Catholic. Also broadly worded restrictions such as not speaking to other family members or even his own children, would likely never have been enforceable in any event, so it is difficult to see how they would have been unconscionable given their unenforceability.  Furthermore it was reasonable that Mr. Buterman would not be allowed to re-launch a complaint arising out of the same subject matter, namely his removal from the substitute teaching list, against other Alberta Catholic school boards since their policies would be similar, or the same. Otherwise, Mr. Buterman would be able to launch multiple Human Rights complaints on the same grounds against every Catholic school board in the Province who did not hire him as a substitute or full-time teacher during his transition.  Once again, I conclude that some of the more draconian terms could have and should have been negotiated out of the documentation, or they were unenforceable in reality so as to be of no great importance. Given the uniform/similar practices and precepts of Catholic school boards throughout the Province, the restrictions against Mr. Buterman aimed at preventing him from relaunching his complaint against them were reasonable in the circumstances.”
Using the standard of reasonableness for judicial review, Justice Lee found that the tribunal had “complied with the rules of fairness and natural justice” and as a result, the Alberta Human Rights Tribunal should be given deference.
It has been more than seven years since Mr. Buterman was victim to blatant discrimination on the basis of being transgender. In Mr. Buterman’s most recent appeal, the Court of Queen’s Bench appears unsympathetic to his claims and renders a decision that condones St. Albert Catholic’s behavior. The court not only finds a settlement occurred despite Mr. Buterman’s submissions that an agreement was never reached, but it also finds the payment equivalent to a substitute teacher’s salary for five years is fair compensation in exchange for the surrender of Mr. Buterman’s legal rights. That’s $75,000 in exchange for the surrender of any right to launch a Human Rights Complaint not only against St. Albert’s Catholic but all Catholic schools in Alberta, forever.
This decision is absurd because it appears to grant St. Albert’s Catholic a license to discriminate. For a relatively small payment (here masked as a settlement offer), St. Albert Catholic has the ability to deny Mr. Buterman a teaching position without fear of a Human Rights Complaint. Similarly, all other Catholic schools in Alberta can deny Mr. Buterman employment even though they were not privy to Mr. Buterman’s original complaint.
The allowance of such a clause goes far beyond protecting the freedom of religion. It drastically undermines the protection of LGBT people and allows discrimination based on sexual orientation, gender identity or gender expression. Unless Mr. Buterman proceeds with another appeal or legislation is created to better protect transgender rights, it is likely this case will act as damaging precedent for future claims alleging similar acts of discrimination.
Before proceeding, please note:
If you are not a current client of Cheadles LLP, please do not include any information in this email that you or someone else considers to be confidential or secret in nature. Prior to the establishment of a lawyer-client relationship, unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure.