LEGAL + LITIGATION
Litigation is one of the processes by which the Commission addresses complaints of discrimination. The core of the legal department’s work is litigation and resolution after the conclusion of the investigation process.
SETTLEMENT
Race/Gender Identity complaint leads to settlement and mandatory training
The complainant – an Indigenous, queer, and femme-presenting individual who uses they/them pronouns – filed a complaint under section 16 of the Code against their former employer and its owner.
Between early 2018 and December 2019, an employee experienced a pattern of racially insensitive and discriminatory treatment from their employer’s owner. The discriminatory behavior included derogatory comparisons to a “rez dog,” questioning of the employee’s identity, and dismissing their concerns when they attempted to address racially charged comments. The owner made disparaging remarks about Indigenous protests, dismissive comments regarding Indigenous youth suicide, and denied the employee’s queer identity.
The situation escalated in the winter of 2019, when the employee formally raised discrimination concerns with the owner. Rather than addressing these concerns, the owner dismissed them and subsequently terminated the employee’s position.
Following an investigation, the Commission determined there was sufficient evidence to support claims of discrimination based on race, colour, sex, and gender identity.
Under human rights law, an intent to discriminate is not required; rather, the impact of discriminatory behavior is considered.
The employer was held liable for the actions of its owner due to their leadership position within the company, and no credible defense was offered to counter the evidence. The Commission found that the employee’s termination was directly linked to their efforts to address the discriminatory behavior, which violated the Code. It was determined that the comments made by the owner significantly impacted the individual’s dignity and sense of safety in the workplace.
The Chief Commissioner directed both parties to participate in mediation, but they were unable to reach a settlement agreement. Given the
While an agreement was not reached at the pre-hearing conference, just before the hearing was set to begin, the employer and its owner offered financial compensation for the employee’s losses under Section 39(1) of the Code and additional compensation for damage to dignity under section 40. The owner and employer also agreed to training for all employees and managers at the company to prevent and address harassment, leading to the resolution of the complaint.
Complaint settled after reasonable offer
The complainant started working for the respondent in July 2022. Her job required using x-ray equipment. She disclosed to her employer that she might be pregnant and therefore unable to perform certain duties. Shortly after, the employer informed the complainant that her performance was inadequate. The employer proceeded to terminate her employment without cause approximately two weeks later.
In January of 2023, the complainant filed a human rights complaint alleging she had been discriminated against on the basis of sex. The complaint alleged the employer terminated her because they did not want to invest resources in an employee that would leave shortly after such an investment due to pregnancy and parental responsibilities. The employer denied that pregnancy influenced their decision to terminate the complainant’s employment.
The complaint was investigated and proceeded to directed mediation, though no resolution was achieved. The respondent subsequently submitted a settlement offer and a corresponding application under section 33(3) of the Code, which empowers the Chief Commissioner to dismiss a complaint when a reasonable offer of settlement has been provided by a respondent and rejected by a complainant.
The Chief Commissioner received submissions from both parties as to whether the offer was reasonable. The test for determining reasonableness under section 33(3) requires that the settlement amount reasonably approximate what the complainant could obtain at a hearing, assuming the complaint to be true. Since the respondent’s offer met this standard, the Chief Commissioner concluded it was reasonable. The parties settled the complaint shortly thereafter when the complainant accepted the offer.
While the complainant wanted a greater damage to dignity award and compensation for legal fees, established jurisprudence placed the offered amount within the reasonable range of damage to dignity awards obtained in comparable situations.
Moreover, in the human rights context, legal fees can generally only be awarded by a court in cases of frivolous or vexatious conduct – elements entirely absent in this case. Accordingly, legal fees are typically inappropriate to consider in evaluating a reasonable offer under section 33(3).
JUDICIAL REVIEW
Court upholds Commission’s decision in family status complaint
The complainant alleged that her former employer discriminated against her based on her family status. She claimed they failed to accommodate her to the point of undue hardship and refused to keep her employed as a teacher – in violation of section 16 of The Saskatchewan Human Rights Code, 2018.
The complainant is a mother of a child with severe disabilities. After her partner got a job in another community, she asked for a leave of absence from her teaching position. She explained that she couldn’t work and care for her child on her own. Her employer denied the leave request and ended her employment when she couldn’t come to work.
The Commission recognized that family status is protected under the Code and that the complainant experienced adverse impact. However, the Commission determined that further investigation would not likely reveal a Code violation. The Chief Commissioner found no prima facie case of discrimination, reasoning that the decision stemmed from the complainant’s career choice rather than her family status.
Additionally, since the complainant had no intention of returning to the community where she was employed, the Chief Commissioner concluded the employer had no duty to accommodate her. As a result, the Chief Commissioner dismissed the complaint under section 30(2)(f) and determined that no hearing was warranted under section 30(2)(g).
The complainant sought judicial review of the Commission’s decision, requesting an order of certiorari to quash the decision and an order of mandamus to reinstate her complaint and forward the matter to mediation or a hearing under section 34 of the Code.
The Court upheld the Commission’s decision. It agreed the complainant’s family situation was not the reason for the job loss. Although her child’s needs played a role in her choice to move, the main reason for denying her leave was her decision to relocate for a similar job.
The Court ultimately concluded that the dismissal of the complaint under sections 30(2)(f) and 30(2)(g) was reasonable, as there was no evidence of a human rights violation and no further investigation would yield new evidence. The judicial review application was dismissed, with no costs awarded.
Disability complaint resolved before hearing
A senior employee, who had worked for the same organization since 1998, filed a human rights complaint alleging their employer violated section 16 of the Code by discriminating against them on the basis of disability.
In November 2015, the complainant began experiencing stress and anxiety-related health issues. On June 11, 2016, the complainant sought medical attention after testing revealed high blood pressure. The complainant promptly informed their employer of their health condition and expressed willingness to discuss accommodation options, despite also considering resignation due to their health concerns.
During a conference call on June 14, 2016, the complainant and employer explored alternatives including disability leave or a transition plan with three months’ severance. Two days later, the employer terminated the complainant without cause and offered only one month’s severance pay.
The complainant argued their employer failed to provide reasonable accommodation and interfered with their ability to access short-term disability benefits, causing substantial emotional and financial harm.
In addition to the human rights complaint, the complainant initiated civil action in the Court of King’s Bench to address similar claims of wrongful termination involving the same underlying issues of discrimination based on disability.
Both legal avenues were pursued concurrently, with the human rights complaint focusing on the violation of Code and the civil action addressing potential breaches of employment law.
The Chief Commissioner reviewed the contents of the Commission’s investigation and determined the complaint had sufficient merit to proceed to a hearing. The Chief Commissioner directed the parties to engage in mediation before proceeding to a hearing of the matter. The parties were unsuccessful in reaching an agreement in mediation.
The Chief Commissioner applied to the Court of King’s Bench for a hearing of the complaint. However, a settlement was reached just before the hearing was scheduled. The settlement resolved both the human rights complaint and the civil action.
COURT OF KING’S BENCH
Court clarifies the Commission’s role
In February of 2015, the complainant became the primary caregiver to her newly born grandson. She inquired with her employer about taking parental leave in May 2015 and formally requested it in June 2015, but her employer denied the request.
Shortly thereafter, the complainant began medical leave related to her mental health. At the employer’s request, the complainant underwent several independent medical assessments and a substance abuse assessment in order to validate the need for employment leave.
Based on the results of these assessments, the employer concluded the complainant was unfit to work and required her to attend an in-patient treatment program.
Since the complainant served as her grandson’s sole primary caregiver, she could not simultaneously attend an in-patient treatment program and care for her grandson. She suggested alternative treatment options, but her employer rejected these alternatives and insisted that in-patient treatment was the only viable option.
On March 1, 2016, the complainant’s employment was terminated for failing to complete or participate in an approved treatment program. The employer concluded they had reached the threshold of undue hardship and fulfilled their duty to accommodate.
The complainant filed a complaint against her employer alleging the termination was discriminatory on the basis of disability and family status.
The complaint failed to resolve through a variety of mediation and settlement attempts, and ultimately the matter proceeded to a hearing at the Court of King’s Bench. In the course of questioning the complainant, who represented herself at the time, counsel for the Commission objected to a question asked of the complainant by employer counsel.
Employer and Commission counsel disagreed as to whether the SHRC could object to questions asked of a complainant. The issue created an impasse, the questioning was aborted, and the Commission brought an application to the Court of King’s Bench to determine, among other things, whether the Commission has standing to object during the questioning of a complainant.
The application resulted in Saskatchewan Human Rights Commission v. Crowe, 2023 SKKB 71. Therein, Justice Crooks clarified the role of the SHRC after a complaint is referred to a hearing:
34 The key issue here is what it means for the Commission to have “carriage” of the complaint once it is referred to the Court for a hearing.
…
47 With respect to the role of the Commission and despite the importance of their work, the Commission is not an advocate for an individual complainant and their private interests. In this case, the complainant has a significant private financial interest in the outcome of the proceeding. The Commission’s focus and responsibility lie in advocating for the public interest, and counsel’s loyalty is to the Commission and the objectives under the Code. While there will inevitably be overlap between the plight of a complainant and the interests of the public, counsel for the Commission cannot slip into advocating for the private interests of the complainant.
[Emphasis added]
…
64 To be clear, a complainant may rely on the Commission to advance the complaint procedurally, but they cannot look to them for advice on their substantive rights. Counsel for the Commission does not have the mandate to contemporaneously act as counsel for both parties.
With the SHRC’s role clarified, the complainant obtained independent legal counsel and the matter proceeded in the normal course.
On April 15, 2024, the complaint was settled and the application for hearing discontinued.
Three complaints resolved during pre-hearing conference
A former long-service municipal employee filed a number of human rights complaints against his employer, alleging discrimination on the basis of disability.
He had experienced a significant traumatic event during the period of his employment, which resulted in a serious mental health decline.
Initially, the employer responded supportively – granting extended leave and accommodating the employee in a less demanding role without reducing his salary.
However, the employee was later permanently reassigned to a seasonal position involving reduced pay and status (complaint #1). This decision further exacerbated the employee’s mental health, ultimately leading to a period of disability leave.
During this leave, the municipality implemented a new policy limiting long-term disability benefits (complaint #2). The situation worsened when, approximately one week before the employee was scheduled to return to work, his employment was terminated. The complainant was provided only the minimum statutory notice, despite a significant period of service and clean employment record (complaint #3).
The matter was resolved at pre-hearing conference through a comprehensive settlement covering all three human rights complaints.
This case highlights the value of pre-hearing resolution processes in achieving tailored settlements and obtaining substantive justice for human rights complainants.