Executive Summary: Key Legal and Evidentiary Issues

• Dr. Janet Haynes alleges race-based discriminatory treatment at the Super 8 Innisfail hotel in July 2022, with her human rights complaint dismissed twice for having "no reasonable prospect of success."

• Super 8 sought $20,000 in security for costs, a stay of judicial review proceedings, and dismissal if security was not posted.

• Availability of security for costs in the judicial-review context was contested, with Dr. Haynes arguing it would undermine access to justice and the public-interest role of the Court.

• The Court found Super 8 failed to provide material evidence demonstrating Dr. Haynes' inability to satisfy a potential costs award, noting that self-represented status does not imply limited means.

• Conflicting evidence regarding differential treatment — including room assignment, payment assistance, and suggestions to seek alternative accommodation — raised unresolved credibility issues the AHRC decision makers did not adequately address.

• Justice Lema dismissed Super 8's application for security for costs, finding Dr. Haynes holds at minimum arguable positions on the merits of her judicial review.

The underlying human rights complaint

In July 2022, Dr. Janet Haynes, a self-represented litigant, attempted to check into the Super 8 Innisfail by Wyndham hotel in Alberta, operated by 993107 Alberta Ltd. Dr. Haynes subsequently filed a human rights complaint with the Alberta Human Rights Commission alleging that she experienced race-based discriminatory treatment during her interaction with hotel staff. The complaint was grounded in section 4 of the Alberta Human Rights Act, which prohibits discrimination in the provision of goods, services, accommodation, or facilities customarily available to the public on the basis of race, place of origin, and other protected grounds.

Events at the hotel

According to Dr. Haynes, after making an online booking for a four-night stay, she called the hotel to advise of a mobility limitation and to request a first-floor room. She stated that she spoke with the hotel manager, who assured her the request could and would be arranged. However, on or shortly after arrival, she was advised that the room booked for her was on the second floor. When she asked the manager why, he replied that he remembered speaking with her but did not otherwise explain. Super 8's position was that no promises would or could have been given and that, at most, a "we will try our best" response was given, though nothing was apparently noted about it in a special requests log or otherwise. The Court observed that this conflicting evidence was not properly resolved by the AHRC decision makers, who emphasized that Dr. Haynes was eventually offered a first-floor room but gave no or too little weight to her evidence on this aspect, or alternatively did not explain adequately why they preferred Super 8's.

The payment and "tap-to-pay" incident

Dr. Haynes further alleged differential treatment during the payment process at check-in. She presented multiple credit cards and attempted to pay using the "tap-to-pay" function with each card, but the amount to pay was too high for that method, causing each attempt to fail. She moved away from the reception desk and tried to contact her bank for assistance. According to her evidence, the hotel manager did not suggest that she try inserting her card into the payment unit. However, when the next party of guests arrived — whom Dr. Haynes noted was from a different racial group than her — and their representative also tried, unsuccessfully, to "tap" payment, the hotel manager offered assistance, suggesting "card insertion" instead of tapping. Observing this interaction alerted or reminded Dr. Haynes of the "insert" solution, which, when she returned to the desk, worked for her. Super 8 provided negligible, or no, evidence on this aspect. The Court noted it was undisputed that Dr. Haynes was not immediately or ever cued by the manager to insert her card and that, once she inserted it, payment or pre-authorization proceeded without a hitch.

The suggestion to seek other accommodation

When Dr. Haynes was eventually shown a first-floor room, the hotel manager advised her three times that she should seek other accommodation at another hotel. Super 8's evidence did not dispute that this advice was given but sought to justify it on the basis that, with Dr. Haynes having advised of a need for a quiet room, and with the room in question being next to a busy doorway and with a family with young children booked in next door, the room was likely to be unsatisfactory for her. The Court questioned why the manager would suggest Dr. Haynes stay elsewhere rather than simply advise her of the room's potential problems and leave the decision to her, finding no plausible explanation offered by Super 8 beyond "I don't think you will like it," which, as the Court noted, was for her to decide.

The AHRC proceedings

An AHRC director screened out Dr. Haynes' complaint under subparagraph 21(1)(a)(iii) of the Alberta Human Rights Act, determining that it had "no reasonable prospect of success." Dr. Haynes requested a review under section 26 of the Act, and the Chief of the Commission and Tribunals, acting through a delegate, upheld the director's decision. The Chief's or delegate's decision was "final and binding on the parties, subject to a party's right to judicial review of the decision" under section 35 of the Act, which right Dr. Haynes invoked by applying for judicial review to the Court of King's Bench of Alberta.

The security for costs application

In response to the judicial review, Super 8 brought an application seeking $20,000 in security for costs under Rule 4.22 of the Alberta Rules of Court, along with an order under Rule 4.23 that, until security for costs was posted, Dr. Haynes not be permitted to take any further steps in the proceedings other than an appeal of any security-for-costs order. Super 8 contended that Dr. Haynes was engaging in vexatious and unreasonable litigation with no reasonable chance of success. In support, it cited a perceived inability to pay at check-in, asserting Dr. Haynes did not have sufficient open credit on her credit card to cover the hotel bill and did not present an alternative credit card, and it also cited her self-represented status. The Chair of the Alberta Human Rights Commission and Tribunal took no position on this application, consistent with the limited role of administrative decision makers in judicial review proceedings.

The Court's analysis of the Rule 4.22 factors

Justice Lema considered each factor under Rule 4.22. On the question of enforceability of a judgment against Alberta assets, Super 8 did not offer any submissions on this prong of the test. On the ability of Dr. Haynes to pay a costs award, the Court found that Super 8's evidence was insufficient; the initial tap-to-pay difficulties did not indicate limited credit for Dr. Haynes, since Super 8 did not dispute that she was able, after the initial tapping difficulties, to provide requisite credit. The Court also held that Dr. Haynes' status as a self-represented litigant was not determinative or, in fact, relevant at all, declining to infer from that status alone an inability to meet a potential costs award. On the merits, the Court found that Dr. Haynes clearly has an arguable, at minimum, position on the issues, particularly regarding unresolved credibility conflicts and the AHRC decision makers' failure to give due regard to Dr. Haynes' evidence or to explain why they preferred Super 8's evidence over hers. The Court cited Moon v HMQ (Alberta – Justice and Solicitor General), 2020 AHRC 38, which emphasized that the authority exercising the screening function should be "extremely cautious in finally disposing of a complaint," particularly in cases involving allegations of racial discrimination, given the subtle and nuanced ways in which racial discrimination manifests. The factors of undue prejudice and other appropriate matters were found to be either unengaged or unsupportive of Super 8's position.

The ruling and outcome

Justice Michael J. Lema of the Court of King's Bench of Alberta dismissed Super 8's application for security for costs. The Court held that Super 8 had not met its burden to show, on a balance of probabilities, that the Rule 4.22 factors, viewed collectively, weighed in its favour. Dr. Haynes maintained at minimum arguable positions on the merits in the upcoming judicial review, and Super 8 had not discharged its onus to show concerns, even prima facie, that Dr. Haynes may not be able to pay the reasonably anticipated costs of an unsuccessful judicial review. No monetary amount was awarded to either party on this application; the successful outcome for Dr. Haynes was the denial of the security for costs order, allowing her judicial review to proceed without the precondition of posting security.