Alberta Human Rights Chief Turfed

 More drama out of the political circles in Alberta. Collin May, the recently-appointed Chief of the Alberta Human Rights Commission and Tribunals (AHRC) was fired today.

This is unusual for a few reasons. Firstly, he was only in the role for about two months. Secondly, he was fired by the same guy who appointed him - Tyler Shandro, the Minister of Justice.

Shandro asked May for his resignation earlier this week; May refused; so today the Lieutenant Governor issued an Order in Council rescinding May's appointment.

There's a back story here. Let's start with the beginning.

A Questionable Appointment

My information, through the grape vine, is that there are personal connections between May and Shandro. I haven't been able to find corroboration of this that isn't at least double-hearsay, so it's worth taking with a grain of salt, but the reality is that May wasn't the best on-paper candidate in the first place.

May graduated law school in 2009, making him pretty junior for a top role in a major administrative tribunal. His bio identifies his key practice areas as municipal law, estate planning/administration, corporate governance/reorganization, and professional regulation. None of these have a significant human rights component.

There is really nothing in his background that answers a question of 'why him'. There are loads of people with more and better applicable experience to the job.

He was first appointed to the AHRC as a Member in 2019 when the UCP came to power. In May of this year, effective July, he was promoted to Chief.

The Progress Report Digs Up His Publication History

In July, the Progress Report broke a story about a 2009 article May published in C2C Journal, an online publication that touts an "unabashed bias...in favour of free markets, democratic governance and individual liberty". (And, evidently, against the Oxford comma.) The story, found here, is a book review of "Islamic Imperialism: A History" by Efraim Karsh.

The review contains...a lot. It's heavy on discussion about Islam being, supposedly, inherently imperial, political, and militaristic.

Some of May's more recent defences of the paper imply that he wasn't speaking in his own voice when he said certain things, but rather just summarizing Karsh's position. And for some of the troubling remarks in the paper, that's sort of fair: "According to Karsh, imperialism constitutes the essence, the nature of Islam."

Other statements are less clear, seeming to contain an element of endorsement: "As Karsh argues, it is an imperialistic religion seeking universal dominion over the whole earth"; "as Karsh points out, Islam is an imperial political religion that seeks to extend its worldly law over all humans in the present"; "radical Islam today is, as Karsh points out, attempting to resurrect the imperial history inherent to Islam". (I feel dirty even quoting this garbage.)

However, the overall tone of the review is one of endorsement, and there are express passages to that effect, too, where May - speaking in the first person - agrees with Karsh's analysis, or where he offers express and high praise for Karsh.

(As troubling as that article is, I dug a bit of my own and found another review where May reflects on how "government programs and movements that seek to render society increasingly inclusive" are farcical "liberal pretensions", and how the "illusion of ever-progressing equality and inclusiveness" is "at the cost of awareness of true political life, and...freedom and civilization". Seems difficult to reconcile with a top job in a human rights commission.)

There was a bit of a firestorm following the Progress Report's story, and the National Council of Canadian Muslims expressed serious concerns. May promised to engage with Muslim communities to address their concerns, and the story went silent for a while.

The NCCM Calls For May's Resignation

On Monday, the NCCM published an open letter, signed by various mosques and Muslim organizations, stating that May hadn't prioritized meeting with them, and instead had sent litigation threat letters to his critics. They called on Shandro to get May's resignation.

Shandro's office indicates that they asked May for an explanation, and then Shandro asked for May's resignation.

Today, things heated up. May refused to resign and intimated that the whole scandal was driven by the NDP, in connection with some (unparticularized) claims against them at the Commission. He hired Ontario counsel (Kathryn Marshall), and has also indicated that he has Alberta counsel (and "two legal actions", whatever that means).

So, this afternoon, the government rescinded May's appointment.

The Legal Framework

This isn't a typical employment relationship. Appointments of this nature to a public office, pursuant to statutory authority, have their own framework.

Some appointments are "during good behaviour", which means that the appointment can't be terminated within the term unless there's cause to do so.

However, other appointments are "at pleasure" - short for "at His Majesty's pleasure" - which basically means that the government can freely decide to replace the person. The appointment of the AHRC Chief is one of these.

It's not completely immune to review. Every exercise of statutory discretion must be used in accordance with the statutory scheme granting it. Termination of an at-pleasure appointment can't be capricious or for improper reasons, and the person is owed a pretty basic duty of fairness - basically, an opportunity to respond to the concerns of the decision-maker.

So while May's recourse on such a decision is likely to judicial review, the test would be whether or not Shandro's decision afforded him the appropriate process. Not whether the NCCM's criticisms were warranted/good faith/etc. The notion that there was some political animus behind the attack on him - even if it could be established (which I don't assume to be the case) - would be of no assistance to May, unless that animus were attributable to Shandro himself in a way that's clearly inconsistent with the discretion afforded to the government under the Act.

While there are elements of the process that we don't know about specifically, what we do know is that the things we would expect to see in a fair process...appear to have happened. That doesn't mean that there can't be a missing link that we don't know about.

But it will be interesting to see what happens next - if May pursues legal action, and how that plays out. The intimations of NDP involvement and animus seem like a stretch, even if they were relevant, but the thing is...without some pretty specific and compelling evidence, a claim that a large part of the Muslim community is going after him to support an NDP agenda that's against him because...they think he'll be unfavourable to them?...seems like a really poor way of trying to pitch that one should keep his job as an impartial decision-maker in a human rights commission.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.

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