LEGAL + LITIGATION
Litigation is one of the processes by which the Commission addresses complaints of discrimination. The core of the legal departmentâs work is litigation and resolution after the conclusion of the investigation process.
Some of the notable litigation files are below:
Pre-Hearing Conference leads to settlement and human rights training
The Complainant is a person with mental health disabilities. When he began working for a new organization, he disclosed these disabilities to his employer. The Complainantâs employer also knew he had been prescribed medical marijuana to help treat his disabilities.
The Complainant claimed his supervisor was harassing him at work for things relating to his mental health.
He met with the director of the organization to discuss his supervisorâs behavior and agreed to take a paid administrative leave while the allegations of discrimination and harassment were being investigated.
While on administrative leave, the Complainant received a letter from his employer alleging that he posed a safety risk to himself and others due to his mental health disability and was asked to provide medical information from his physician confirming that he was not a safety risk. He was placed on administrative leave without pay.
The Complainant provided the requested medical information, but the employer deemed it insufficient and requested an additional independent examination by a medical professional of their choice.
A couple of weeks later, the Complainantâs employment was terminated for failure to cooperate with his employer. He filed a complaint with the Saskatchewan Human Rights Commission alleging discrimination in employment based on his disability.
At the Pre-Hearing Conference, the parties reached a mutually agreeable settlement. The employer offered monetary compensation ($20,000 for damage to dignity and full recovery of lost wages) as well as an apology letter. The employer also agreed to provide its current and future employees with training regarding workplace accommodation of disabilities and prevention of discrimination and harassment.
The Complainant accepted the offer and the file was closed.
DG v RM of Baildon No. 131
The Commission has previously reported the outcome of this matter, which proceeded to hearing in March 2021.
The Complainant, D.G., was employed by the Rural Municipality of Baildon (Baildon). D.G. sustained a head injury and concussion in an accident that was unrelated to work.
D.G. provided Baildon with a doctorâs note that stated she would be absent from work. A few months later, D.G. attempted to return to work. The conduct of the Reeve and a Councillor during her return-to-work process exacerbated her symptoms. She recommenced medical leave and provided Baildon with medical notes periodically during her absence.
Approximately 18 months after D.G.âs original injury, Baildon advertised for a replacement. D.G.âs physician completed a medical questionnaire recommending a gradual return to work with part-time hours. Baildon refused to accommodate the request for a gradual return to work.
Baildon insisted that D.G. could only return to work when she was able to work full-time. Baildon also asserted that continuing the accommodation process would be an undue hardship.
The Commission accepted D.G.âs complaint in the fall of 2016. Efforts were made to resolve the complaint through mediation. After mediation proved unsuccessful, the complaint was investigated fully.
In the fall of 2019, the Chief Commissioner applied to the Court of Kingâs Bench for a hearing of the complaint. The Court rendered its decision in 2022. The Court found that Baildon discriminated against D.G. because of her disability. Baildon failed to establish that accommodating a part-time return to work would have resulted in undue hardship.
The Court awarded D.G. approximately $112,000 damages for loss of wages, benefits, and $10,000 special compensation for damage to dignity. Shortly following the decision, Baildon filed its appeal of the matter with the Court of Appeal, asking the Court to set aside the hearing decision. In March 2023, it filed the balance of the legal documents required to advance the appeal.
The Commission filed a cross-appeal seeking to increase the special compensation award from $10,000 to $20,000.
The appeal of the matter was heard in the fall of 2023 and we expect the judgment to be forthcoming in 2024.
CUPE, Local 21 and Jane Doe v. City of Regina and Saskatchewan WCB
In 2022, the Commission applied to intervene in an application for judicial review by CUPE, Local 21, and Jane Doe which seeks to set aside a decision of the Workersâ Compensation Board (WCB). This application was granted and the Commission is one of several intervenors in this judicial review.
The matter is now awaiting further procedural applications in an effort to streamline the hearing of this and other judicial review applications
Jane Doe has a grievance against the City of Regina as a result of sexual harassment. Jane Doe was seeking certain damages, including compensation under s. 40 of The Saskatchewan Human Rights Code, 2018 for damage to dignity and self-respect.
The City of Regina applied to the Workersâ Compensation Board for a ruling under s. 169 of The Workers Compensation Act (the Act). The WCB found that Jane Doe had a compensable injury under the Act so s. 168 of the Act barred Jane Doe from obtaining any additional compensation through her grievance proceeding.
The effect of the Boardâs decision is to eliminate compensation available under the Code for women who are harassed in the workplace and suffer a workplace injury. This may include victims of sexual assault. Workplace sexual harassment complaints represent approximately 10% of the total complaints received by the Commissioner annually. The vast majority of complaints are received from women.
Although this case involves a complaint of sexual harassment, the Commission believes it could extend to any act of discrimination in the workplace. As such, this decision undermines the workplace rights of racial and ethnic minorities, people with disabilities, and the LGBTQ2S+ community.
The Commission believes that the WCB ruling is incorrect for several reasons, including that the Code is quasi-constitutional legislation that supersedes regular legislation. The Commission will argue that the protection of human rights must be preferred over the protection of a no-fault insurance scheme.
The Commission expects that the procedural matters advanced by the parties will be determined in 2024.
Costs awarded for frivolous, vexatious or abusive conduct
In 2021, the Commission received a complaint from a Complainant alleging she was terminated from her employment due to an accommodation request for her disability.
That matter was investigated and the Chief Commissioner determined there was sufficient evidence of discrimination to refer the matter to Directed Mediation. Following a failure to reach an agreement at Directed Mediation, the Commission applied to the Court of Kingâs Bench for a hearing of the complaint.
At Pre-Hearing Conference, the parties agreed to schedule a Questioning, following which, the parties were to reconvene for a second Pre-Hearing Conference with a Justice of the Kingâs Bench. However, shortly before the Pre-Hearing Conference the Commission was informed that the Respondent would be out of the country on the day the parties were scheduled to resume.
It was determined the Respondent would be unable to attend in person or by any other means. The Pre-Hearing Conference was adjourned and the Commission was awarded costs of $1,500 as the Court determined that the Respondentâs decision to go on vacation was frivolous, vexatious, and an abuse of process. The matter is scheduled to resume in 2024.
Court of Appeal affirms that Employer Pattern and Practice Evidence is Admissible: Saskatchewan Human Rights Commission v Saskatchewan Power Corporation, 2024 SKCA 13
B.S. filed a human rights complaint against his former employer, Saskatchewan Power Corporation (SaskPower), alleging discrimination on the basis of disability and failure to accommodate.
In its application to the Saskatchewan Court of Kingâs Bench, the Commission alleged that SaskPower had engaged in systemic discrimination against employees with disabilities, i.e., that there was a systemic problem with the way SaskPower treats its employees who seek accommodation of their disabilities.
SaskPower successfully applied at Chambers to have this âpattern or practiceâ evidence struck as being immaterial, prejudicial, and an abuse of process. The Commission successfully appealed that decision, and the Court of Appeal has affirmed that the Commission is entitled to lead evidence relating to a pattern of discrimination under s.35(4) of The Saskatchewan Human Rights Code,
2018. Section 35(4) of the Code states:
35(4) The court is entitled:
(a) to receive and accept evidence led for the purpose of establishing a pattern or practice of resistance to or disregard or denial of any of the rights secured by this Act; and
(b) in arriving at its decision, to place any reliance that it considers appropriate on the evidence and on any pattern or practice disclosed by the evidence.
In the appeal, the Commission argued the Court of Kingâs Bench judge erred in striking out the allegations of systemic discrimination from the application, claiming the evidence of such discrimination was admissible under s.35(4) of the Code.
SaskPower disagreed, claiming that allegations of systemic discrimination should not be admitted, particularly when there had been no prior findings or admissions of liability, and that prior settlements should not be treated as precedents for following cases.
The Court of Appeal concluded that the Chambers judge erred in their interpretation of s.34(5) of the Code by narrowing the scope the admissibly of evidence to instances where there had been prior findings or admissions of liability, as this was not supported by the broad and permissive language in the Code.
The Code allows for evidence of a pattern or practice of discrimination to be admitted, and such evidence is presumptively admissible. A pattern or practice may also constitute a breach in and of itself.
The Chambersâ decision to strike the allegations was considered premature, as the admissibility of the evidence should be determined at the hearing stage.
The Court of Appeal also noted that settlements should not prevent the admissibility of relevant facts in human rights matters. The Court of Appeal set aside the Chambers order striking the allegations of pattern and practice from the Commissionâs application. Since this decision was rendered, SaskPower has sought leave to appeal the matter to the Supreme Court of Canada.
Bill 137: A legal perspective
On August 22, 2023, the Government of Saskatchewan announced a policy that would require parental consent for students under the age of 16 who wished to have their chosen names and pronouns used in school.
On August 31, 2023, the University of Regina Pride Centre for Sexuality and Gender Diversity and Egale Canada filed an originating application against the Government of Saskatchewan over this policy.
They argued that the policy violates section 7 (right to life, liberty, and security of the person) and section 15 (equality) of the Charter of Rights and Freedoms.
Justice Megaw of the Court of Kingâs Bench heard oral arguments on September 19, 2023.
On September 28, 2023, an injunction was granted against the policy. Megaw opined that the policies risked causing irreparable harm to students.
He further found that the âprotection of these youth surpasses the interest expressed by the Government, pending a full and complete hearing into the constitutionality of this policyâ. In response to the decision, Premier Moe stated his intent to codify the policy into law. He recalled the legislative assembly 15 days early, something that had not occurred in a quarter of a century.
On October 20, 2023, Bill 137 passed and was signed into law. The Education Act 1995 was amended to create section 197.4.
The Government invoked notwithstanding clauses â section 33(1) of the Charter and section 52(b) of The Saskatchewan Human Rights Code, 2018 â to insulate Bill 137 from review by the Court.
Following the codification of the policy into Bill 137, legal counsel for Egale and UR Pride amended their originating application to refer to section 197.4 of The Education Act. They also amended their application by stating the Bill violates section 12 of the Charter in addition to sections 7 and 15.
They argued that the âoutingâ and âmisgenderingâ requirements of the bill violates the guarantee to protection from cruel and unusual punishment â section 12 of the Charter. The amended action asks the Court to find the bill to be of no force or effect if it is found to violate section 12.
The Government opposed the request to amend the originating application. They also brought two applications. The first applied for a determination that the invocation of the notwithstanding clause completely removes the Court from any and all jurisdiction to determine the allegations of violations of s. 7 or s. 15 of the Charter. The second applied to have the litigation issues determined to be moot in light of the use of the notwithstanding clause and to have the proceedings dismissed as a result.
The parties presented oral arguments to the Court on January 10, 2024. In a February 16, 2024 decision, Justice Megaw granted permission to amend the originating application as requested by the applicant, UR Pride and Egale Canada.
The application of the Government on the threshold issue was dismissed insofar as the Court determined it has jurisdiction to hear the matters regarding the alleged breaches of s.7 and s.15 of the Charter, though the Court declined to determine whether it would exercise that jurisdiction. It reserved that issue to be determined following the receipt of evidence and submissions.
The Court further declined to determine the issue of mootness, without prejudice to the applicant to reintroduce the issue following hearing.
The Government of Saskatchewan sought leave to appeal the decision of Justice Megaw on March 1, 2024.
The parties attended an appeal management conference on April 8, 2024, wherein Egale and UR Pride consented to a stay of proceedings pending the appeal. On May 14, 2024, the Court set the hearing date for the appeal to be September 23 and 24, 2024.