2014 CACE Human Rights Update for Manitoba and Saskatchewan
Human Rights Update For Manitoba And Saskatchewan
by Shereese R. Qually and Elizabeth Mitchell, Taylor McCaffrey LLP
This paper reviews recent developments in human rights legislation and jurisprudence in Manitoba and Saskatchewan. Of note, it appears that both provinces are struggling with their application of the Supreme Court of Canada decision of B.C. (Workers’ Compensation Board) v Figliola, 2011 SCC 52 and the principles of estoppel and multiplicity of proceedings related thereto.
The duty to accommodate in the employment and labour context continues to be set out in arbitral jurisprudence including the standard of evidence required in order to establish that the duty to accommodate is engaged. Three Manitoba decisions address this very issue in the context of family status, addictions and disability.
Manitoba Human Rights Adjudications
Entirely uncharacteristic of The Manitoba Human Rights Commission, it has been busy issuing adjudication decisions in the last year. Due to the extensive mediation and settlement provisions in the Code, as has been reviewed in past papers, it is notable that Manitoba has any adjudications in a year let alone multiple decisions.
This year’s decisions have reviewed a number of procedural issues under the Code, including the unique provisions permitting the Commission to terminate a complaint process where the defendant has provided an offer of settlement which is reasonable in the eyes of the Commission and/or adjudicator. Further, at least one adjudicator appointed under the Code seems to be limiting the potential “make whole” wage remedy available under the Code, awarding notice or pay in lieu damages only to those available under The Employment Standards Code.
Production of Documents
The decision of Kilbride v A+ Financial Services Ltd., 2013 MHRBAD 3 (Sim) addressed an order for the respondent to produce certain documents. This decision referenced objections raised by the respondent regarding this production order.
Adjudicator Sim stated that this was the first Manitoba decision to consider sec. 38 of the Code, which permits adjudicators to order production of documents. He held that the test for ordering production of a document under sec. 38 is whether the document is relevant to the complaint. As this is the same test applied in the Queen’s Bench to civil actions, Adjudicator Sim determined that civil cases could be relied upon for guidance. He referred to J-Sons Inc. v NM Paterson & Sons Ltd., 2003 MBQB 199, in which Scurfield J. held:
The test as to what documents are required to be produced is that of relevance. Relevance is normally measured by an examination of the issues raised in the pleadings. At the very least, for a document to be relevant, the party seeking production ought to be able to articulate a theory as to how that document might help its case or damage the case of the opposite party.
While it has been said that the threshold for determining the question of relevance is a low one, the Court should nevertheless not countenance fishing expeditions…(paras. 2-3).
Relevancy in civil proceedings is determined by reference to pleadings. In human rights adjudications, the complaint and written response serve a similar function. Here, the respondent had not provided any written response, so relevancy was determined by reference to the complaint alone.
The Adjudicator rejected the respondent’s contention that much of the material sought was already available to the complainant, holding that this was not a valid objection to production of documents in a civil matter and it should not be one in a human rights adjudication.
Reasonable Settlement Offers
Metaser v. Jewish Community Campus of Winnipeg Inc., 2013 MHRBAD 6 (Dawson) addresses the reasonableness of a settlement offer.
The Employer, JCC, brought a motion that a settlement offer it made was reasonable and the complaint should be dismissed. The motion was ultimately granted.
Metaser alleged that her supervisor at JCC made unwelcome sexual jokes and sexual comments. Her supervisor also called her at home, asking her on dates. Metaser alleged that she had made the conduct known to her supervisor’s supervisor, but the behaviour nevertheless continued. Metaser’s employment was later terminated, however there was no allegation that the termination was a reprisal under the Code.
In the course of the complaint and investigation process under the Code, JCC made a settlement offer to Metaser on May 28, 2013, as follows:
- $5,250.00, as damages for injury to dignity, feelings, or self-respect;
- No compensation for financial losses or, in the alternative, up to $2000.00, if the complainant could show losses arising from the harassment;
- JCC had already taken reasonable steps to conform with the Code in the future;
- JCC would not pay penalty or exemplary damages;
- JCC would not adopt any affirmative action or special program as it was not warranted; and
- Metaser would grant a release to JCC, limited only to the pending human rights complaint.
JCC sought adjudication/review of this offer, pursuant to sec. 37.1 of the Code. Adjudicator Dawson noted that only one other Manitoba decision had previously considered sec. 37.1, Mancusi, v. 5811725 Manitoba Inc., 2012 CanLii 7343, in which Adjudicator Lynne Harrison proceeded on the basis that the allegations were proven. Adjudicator Dawson adopted the approach:
I adopt this approach, because it gives effect to the public policy that underlies s. 37.1; namely, the parties and the adjudicative process should not expend resources to adjudicate a complaint, where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered if the complainant’s allegations had been proven during a hearing of the complaint. For the same reason, it would be appropriate for an adjudicator to consider any admissions or agreed statements of fact. This is not to say that an adjudicator must blindly accept every allegation that appears in a complaint. Where an allegation is speculative at best or highly improbable on its face, an adjudicator may reject such statements. (para. 11) [emphasis added]
He went on to note that the adjudicator in his role makes no findings of fact; it is not to be inferred that the respondent has breached the Code.
Further, and significantly, he held that as sec. 43(2) of the Code sets out the variety of remedies available to an adjudicator:
…[a] reasonable settlement offer within the meaning of 37.1 must take into account each of these headings. The settlement offer that addresses only some applicable remedies is not reasonable (para. 14).
Under the head of “ensuring future compliance”, Adjudicator Dawson noted that the parties agreed at the hearing that JCC had already taken steps toward ensuring future compliance with the Code, including sending key staff to workshops and having other employees watch Commission-produced videos. He determined that what was done was “the same or nearly the same as, or at least approximates, what an adjudicator would have ordered” (para. 16).
Under the head of “compensation for financial losses”, the Commission and Metaser took the position that there was greater entitlement than what was reflected in the offer. Her loss of employment income, they said, was a direct result of the JCC’s violation of the Code. Adjudicator Dawson rejected the argument. He said that, pursuant to The Employment Standards Code, an employer can terminate an employee’s employment for any lawful reason as long as, if there was no cause for termination, notice or pay in lieu of notice is provided:
Where an employer fails either to give such notice or pay in lieu of notice, the employee suffers a calculable loss. The loss is the same for the complainant in the context of a human rights violation, because, putting aside the violation of the Code, the Employer could have terminated the employee for any lawful reason and limited its financial liability, only to an amount equal to wages and benefits accruing during the statutorily defined notice period (para. 20).
To the extent that the complainant has suffered losses other than lost wages, the remedial heading permits an adjudicator to order compensation for those losses. There was no evidence of such losses in this hearing.
*Note that this is a significant finding as the Code has the ability to provide a make-whole remedy. If this line of authority is followed, it greatly limits the remedies (and risk for employers) under the Code.
Insofar as damages for injury to dignity etc. were concerned, JCC explained that it arrived at $5,250.00 by taking the range set out by Simonsen J, in Korsch v MHRC, 2011 MBQB 222, aff’d 2012 MBCA 108, being $1,000.00 – $4,000.00, and then accounted for inflation. The Commission did not suggest an alternate amount, but did point to various factors that ought to have increased the amount under this heading (i.e. the complainant was a newcomer to Canada, sexual harassment was ongoing over a period of time, etc.). Adjudicator Dawson rejected the Commission’s assertion, finding that there was no evidence suggesting to him that a figure outside the Korsch range would be reasonable.
There was no dispute with regard to exemplary damages, affirmation program or release heads of remedy.
Ultimately, he concluded that the offer was reasonable as it was the same as, or nearly the same as, or at least approximately what an adjudicator would have ordered pursuant to sec. 42(2) of the Code, had the allegations been proven at a hearing.
He noted parenthetically that sec. 37.1 of the Code does not compel a respondent to make good on its settlement offer, once determined to be reasonable. He suggested an amendment in that regard.
Multiplicity of Proceedings
In Dick v. Pepsi Bottling Group (Canada), Co.,  M.H.R.B.A.D. No. 102 (Harrison), the Employer sought an order that the complaint ought to be dismissed on the basis that the issues had been argued and decided in other proceedings.
The complainant was a long-time employee of Pepsi who experienced a number of non-work related injuries over time. Pepsi made attempts to accommodate him, but eventually determined that it had reached the point of undue hardship. His employment was terminated. Dick’s union had previously filed a grievance on his behalf, stating that he was unjustly terminated and that Pepsi had failed in its duty to accommodate under the Code. The grievance was ultimately dismissed.
The Human Rights Commission consented to Pepsi’s motion to dismiss the complaint. Dick, on his own behalf, opposed the motion. He said that the union had not represented his interests throughout the grievance process. He said that the issues were not properly addressed by the Arbitrator.
Counsel for Pepsi and for the Commission argued that, based on the Supreme Court decision of B.C. (Workers’ Compensation Board) v Figliola, 2011 SCC 52, re-litigating the issues would not serve the administration of justice and would violate important legal principles such as res judicata, issue estoppel and collateral attack.
Adjudicator Lynne Harrison held that she was not persuaded that Figliola was of direct application to the case or that it was determinative of the motion. Figliola dealt with a provision of The Human Rights Code (British Columbia) granting the power to dismiss a complaint that had been “appropriately dealt with” already. She noted that there was no comparable language in the Manitoba Code. Pepsi asserted that there was no need for the statutory language; it was relying on the “common law principles” identified in Figliola. Adjudicator Harrison held:
In my view, this submission confuses or equates the application of the principles underlying the doctrines of issue estoppel, collateral attack and abuse of process with the application of the doctrines“. [emphasis in original]
In Figliola, the Supreme Court of Canada found that The BC Human Rights Tribunal did not need to apply the complicated common law doctrines because there was a simplified test based on the wording of the Code. That, said Adjudicator Harrison, would not be the case in Manitoba. The doctrines themselves would have to be applied.
The Adjudicator found that the motion should be resolved through the application of the common law doctrines and, in particular, of issue estoppel and/or abuse of process. Applying those doctrines, she determined that the motion should be allowed and the complaint dismissed.
The Adjudicator applied the doctrine of issue estoppel and found that the criteria were met. She reviewed the recent Supreme Court of Canada decision in Penner v Niagara (Regional Police Services Board), 2013 SCC 19, in which the SCC focused on the discretionary aspect of the issue estoppel doctrine test, where a decision‑maker can exercise his or her discretion to refuse to apply the doctrine of issue estoppel, even if the elements are made out. She found that the matter had been sufficiently dealt with at the grievance arbitration and refused to exercise that discretion. She went on to say that, in the event she was wrong about issue estoppel, the complaint ought to be dismissed on the basis of the abuse of process.
Failure to Address Harassment in the Workplace
The decision of Garland v Tackaberry (c.o.b. Grape and Grain), 2013 MHRBAD 5 (Dawson) addresses the types of remedies we can expect where an employer permits ongoing harassment in the workplace without taking steps to address the conduct.
The complainant, Garland, was an employee at Tackaberry’s retail shop. She alleged that she was repeatedly sexually harassed by a regular customer, Raymond Berg (who testified). Her employment ended on May 8, 2010. She filed a complaint against Tackaberry on October 25, 2010, alleging that Tackaberry knew about the harassment but failed to do anything about it.
Adjudicator Dawson was satisfied that the complainant suffered repeated harassment through much of her employment. He then moved on to the issue of whether the employer had taken reasonable steps to terminate the harassment. He noted that the Code “implies that this obligation arises where the Employer has become aware of the harassment” (para. 18). He accepted the evidence that the complainant had brought the harassment to Tackaberry’s attention routinely and that little was done. Tackaberry had an “initial chat” with Berg, but this was the only step taken to prevent further harassment. A breach of the Code was found to have occurred.
The following remedies were sought:
- Compensation for lost wages: The Commission sought four weeks’ wages. However, Adjudicator Dawson found that the complainant neither sustained financial losses nor lost benefits in this case. Her employment terminated after she got into an argument with Tackaberry. Tackaberry paid Garland two weeks’ wages upon termination, consistent with The Employment Standards Code. The Commission’s argument that Garland should receive a further four weeks’ notice to compensate for financial losses “ignores the operation of s. 61(2)” of The Employment Standards Code and would effectively give a windfall to the person affected by the human rights contravention;
- Damages for injury to dignity etc.: The Commission sought an award of $9,000.00. The Adjudicator awarded $7,750.00, taking an award from a 2002 case of $4,000.00, under this heading for sexual harassment in the workplace, increasing it for inflation to $5,250.00, and then awarding further damages due to the young age and vulnerability of the complainant, and the lewd and shocking nature of the ongoing conduct;
- Exemplary Damages: There was no alleged malice or recklessness in the contravention and so no exemplary damages were awarded; and
- Training and Workshops: The Adjudicator granted the Commission’s requests that Tackaberry be ordered to attend a workshop on harassment in the workplace; provide new and future employees with a policy on harassment in the workplace; training for employees; and make all of his employees aware of who was designated as the person under the policy to whom instances of harassment could be reported.
Manitoba Arbitration Decisions
The majority of Manitoba human rights jurisprudence in the employment/labour context arises from arbitration awards. A number of notable arbitration awards from the past year are highlighted below.
The decision of Vale Inco Limited v United Steelworkers, Local 6166 (Macumber Grievance),  M.G.A.D. No. 8 (Werrier), addresses an allegation by an employee that he was subject to harassment by his supervisor, and the applicable test used to identify whether harassment had in fact occurred.
The Arbitrator adopted the test to determine if the allegation harassment was established as set out in St. Boniface General Hospital and Manitoba Association of Health Care Professionals,  M.G.A.D. No. 31 (Peltz). The elements to establish harassment are:
- the absence of any legitimate work purpose for the impugned conduct;
- on an objective basis, an intimidating, humiliating or offensive work environment; and
- it is well-established in arbitral law that the Employer’s supervisory role must be considered in assessing whether conduct by a manager amounts to harassment.
The Arbitrator held that not all “workplace tensions and clashes” between supervisors and bargaining unit employees amount to harassment, and specifically stated that, “it is widely accepted that harassment does not include the exercise of management rights in good faith” (para. 84).
Applying the tests to this case, Arbitrator Werrier found that there was no harassment proven. The supervisor acted for a legitimate work purpose and exercised a legitimate management function. He found no evidence of intimidating, humiliating or offensive work environment. There was no breach of the Agreement and no breach of The Human Rights Code.
Duty to Accommodate – Evidentiary Requirements Regarding Addiction
A second arbitration from this employer, Vale v United Steel, Paper and Forestry Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 6166 (Fudge Grievance),  M.G.A.D. No. 11 (Peltz), addresses the evidentiary standard required to prove a disability and the duty to accommodate with respect to drug use.
The Grievor’s employment was terminated after an investigation into his use of marijuana at work. After an initial indignant denial, he admitted that he had a drug problem and that he had worked under the influence. Following the termination, he sought help from Addictions Foundation of Manitoba (“AFM”).
Workplace safety was a predominant issue in the case. The Operation of Mines Regulation, Man. Reg. 212/2011 and the Workplace Safety and Health Act, C.C.S.M. c. w210, prohibited workers from bringing drugs to a mine, consuming drugs at a mine, or working under the influence of drugs. The Company had made an extensive effort to implement drug and alcohol policies to foster a safe workplace.
The Union admitted that there was cause for discipline, and asserted that it shared the Employer’s desire for a safe workplace. It argued, though, that a penalty less than termination should be substituted.
The Arbitrator found there was no duty to accommodate. The Grievor’s own evidence about his drug use was not sufficient to establish a disability. Arbitrator Peltz adopted his own analysis in a previous decision, finding that:
- There was no evidence that the Grievor has been diagnosed as having an addiction by a medical practitioner or any other health care provider;
- The Grievor self-diagnosed and described a long-term pattern of destructive substance abuse, yet no corroborating factual evidence was presented;
- Arbitral authority suggests that expert evidence is the preferred means by which a chemical dependency should be established, holding, “I endorse this view. But I would not be prepared to say that only expert evidence will suffice”…There may be “cases where the facts, coupled with mature human experience, obviate the necessity of expert opinion” (para. 106, citing Re Royal Canadian Mint and PSAC (Izzard Grievance),  C.L.A.D. No. 427 (Peltz) at paras. 159‑164).
The grievance was dismissed.
Duty to Accommodate – Family Status
The decision of Manitoba Hydro v. International Brotherhood of Electrical Workers, Local 2034 (Sprung Grievance),  M.G.A.D. No. 14 (Riley) addressed the ever-popular issue of duty to accommodate on the basis of family status as it relates to parental obligations.
The Grievor requested that his schedule be changed from 8:00 a.m. – 4:30 p.m. to 9:00 a.m. – 5:30 p.m. on certain days because he was divorced and sometimes had custody of his young kids, who caught the school bus at 8:30 a.m. The Employer refused.
The key issue in this case was a claim of discrimination on the basis of family status.
Arbitrator Riley determined that no prima facie case of discrimination was made out. He noted that in “…the case of family status, discrimination does not occur in every instance where family duties and a job requirement are in conflict…Inevitably there is a conflict between work and family responsibilities and the right balance must be found” (para. 186).
He held that, in order for an accommodation to be warranted, the Grievor would have to establish a prima facie case of discrimination. He referred to the recent Federal Court decision in Johnstone, which reviewed competing views in Canadian jurisprudence with respect to establishing a case of discrimination based on family status. He found that two points were undisputed across jurisdictions:
- The onus is upon the employee to establish a prima facie case of discrimination; and
- In order for the decision-maker to make a finding that a prima facie case of discrimination has been made out by an employee, the employee’s own efforts at self-accommodation must first be examined.
The Arbitrator held that:
An employee is first expected to demonstrate that he took steps to balance his family and work life responsibly. In fact, there is a legal obligation upon an employee to first attempt to meet their own needs and fulfill their own responsibilities before looking to their employer (para. 195).
Looking at both the case law provided, and the case law referenced in those decisions, it cannot be said that a term or condition of the Grievor’s employment at Manitoba Hydro has created a conflict as there have been no attempts at self-accommodation whatsoever by him. There is no prima facie discrimination made out under The Human Rights Code and no corresponding obligation on the part of Manitoba Hydro to accommodate the Grievor any further (paras. 210-211).
However, the Arbitrator held that the Flex Time provisions of the CBA were there to help employees balance work and home life. The Employer did not act reasonably in denying his request. The grievance was allowed on that basis.
Attendance Management Programs
In Behlen Industries LP v United Steelworkers, Local 7913 (Veysey Grievance),  M.G.A.D. No. 17 (Peltz) the administration of an attendance management program in the face of a disability was reviewed.
The Grievor was a highly-skilled employee with an absenteeism problem. He was hired in 2007 and by 2009 was on the Employer’s Attendance Management Program. The Grievor progressed rapidly through the program and his employment was terminated in November 2011.
The Union did not dispute the Employer’s documented absences. Rather, it took the position that the work attendance program was administered in a haphazard and discriminatory manner. It said that the Grievor was suffering from psychological distress and that the Employer had ignored several red flags which it ought to have acted upon, but instead it did not accommodate. It said that the Collective Agreement and The Human Rights Code were breached when the Grievor’s employment was terminated.
The Employer denied discriminatory application of the Program. It said that it made every reasonable effort to ascertain whether there was an underlying disability or illness issue, but the union and the Grievor declined to provide any personal health information.
Arbitrator Peltz held that “[f]aced with past excessive absenteeism, on the facts here, the Employer was entitled to infer that the Grievor’s future attendance would also be unsatisfactory” (para. 112).
Further the Adjudicator held that:
An invitation to supply medical or health information bearing on the Grievor’s absenteeism was declined. Thus it was reasonable to draw the inference. Thereafter, the evidentiary onus shifted to the Union and nothing was presented before me to serve as rebuttal (para. 112).
The Union’s assertion that the Employer ought to have noticed “red flags” and provided an accommodation was undermined in the absence of any evidence to establish the precise nature of the Grievor’s purported health condition at arbitration. Vague reference was made to depression and to the lingering effects of a 2008 family tragedy, but no expert evidence or any other evidence was led to substantiate the facts. The Grievor himself did not testify.
Arbitrator Peltz noted that “failure to disclose” during attendance management was not necessarily fatal, and that there were cases to that effect. However, in those cases, there was expert evidence to help establish not only the disability but also why the employee had not disclosed to the Employer the existence of the disability. Furthermore, in those cases, it was held that the Employers either ought to have or did discern that the Grievors were experiencing health problems. Such was not the case here. Accordingly, the grievance was dismissed.
Amendments to Saskatchewan’s Employment Standards Legislation
On April 29, 2014, the much-anticipated Employment Standards Act, SS 2014, c S-15.1 was enacted, repealing the former Labour Standards Act, RSS 1978, c L-1 and the Occupational Health and Safety Act, 1993, SS 1993, c O‑1.1. This is mainly employment standards legislation however, of note, the following sections address human rights related areas:
- Discrimination in Pay Prohibited – Sec. 2-21(1) of the new Act has amended the previous sec. 17(1) of the Labour Standards Act regarding pay equality replacing the language with gender neutral terms and rights:
No discrimination in pay
2-21(1) No employer shall pay an employee of one sex at a rate of pay less than the rate paid to an employee of another sex if:
(a) they are employed by the Employer for similar work that is performed in the same workplace under similar working conditions; and
(b) the performance of the work requires similar skill, effort and responsibility.
(2) Subsection (1) does not apply if a payment differential is made pursuant to a seniority system or merit system.
(3) No employer shall reduce the rate of pay of any employee in order to comply with this section.
(4) If an employer has contravened subsection (1), the Employer is not, after that contravention, entitled to reduce the rate of pay to which an employee is entitled on the grounds that the work is subsequently performed only by employees of the same sex.
(5) No employer shall pay an employee a different rate of pay on the basis of any prohibited ground, as defined in The Saskatchewan Human Rights Code, unless The Saskatchewan Human Rights Code permits the different rate of pay.
- Duty to Accommodate – Sec. 2-41 of the new Act has amended the previous sec. 27(1) of the Labour Standards Act regarding the duty to reassign an employee if disabled. The previous provision indicated that the onus would be on the Employer to prove that it was not reasonably practicable to modify the duties or to reassign the work. This language is now gone and has been replaced as follows:
Employer must reassign employee or modify employee’s duties
2-41 An employer shall modify an employee’s duties or reassign the employee to other duties if:
(a) the employee becomes disabled and the disability would unreasonably interfere with the performance of the employee’s duties; and
(b) it is reasonably practicable to do so.
Saskatchewan Arbitration Decisions
As in Manitoba, Saskatchewan’s arbitral jurisprudence continues to define the duty to accommodate and the role human rights plays in the workplace. This year, one notable decision is set out below.
Duty to Accommodate a Cognitive Disability
In Seiu-West v Cypress Health Region, 2014 CanLII 21601 (SK LA) (Stevenson), the duty to accommodate a cognitive disability was addressed. The Grievor was a casual environmental services worker with the employer. Her employment was terminated in June 2011 for being absent without leave. The Grievor had extensive previous disciplinary infractions related mainly to absenteeism and lateness. The Employer had gone to great lengths to warn and work with her. The final straw was when the Grievor missed three consecutive shifts without explanation—her explanation changed over time, but it essentially involved having been abandoned at a highway gas station by friends.
During the termination meeting, the Employer noted some odd behaviour/demeanour on the part of the Grievor and wondered aloud whether the Grievor was seeking help from anyone, and if she might have a disability. The Grievor did not respond, although it was later clear that she knew that she had certain challenges but had never disclosed this to employer.
Two months after termination, the union advanced the position that the Grievor was a person with a disability requiring accommodation, providing medical evidence to the Employer. The Grievor was identified as being a person with a cognitive disability which affected her ability to make informed decisions, to act in her own best interests and to fulfill her employment-related duties.
In the arbitration, the union also noted the considerable personal strain on the Grievor: her ex-husband was allegedly stalking her and was involved with the Hell’s Angels. The Grievor’s evidence was that her life had become much more stable: she had no contact with her ex-husband, and her children lived with her parents but she saw them daily.
The Panel applied the “hybrid model” for dealing with conduct that is both culpable and non-culpable. The Panel found that the Grievor had engaged in conduct that merited some discipline. It also found that the evidence supported a finding that she had a disability, namely borderline intelligence and personality disorder. The Employer did not dispute that the Grievor had a disability; rather, it said that it was not the disability that impacted the work performance or attendance.
The Union bore the onus of establishing, on the balance of probabilities, that the workplace conduct was causally linked to mental disability. In the hybrid model, the disability did not need to be the only cause for the misconduct; it just had to be a cause. Vice-Chair Stevenson held that he was satisfied based on the evidence that:
…many of the Grievor’s work performance issues were causally linked to her mental disability. The diagnosis of borderline intelligence with lower cognitive ability could reasonably result in problems with everyday functioning; the ability to cope with stressors, judgment, planning/organization and social/occupational function are areas commonly affected. The evidence is that the Grievor’s workplace issues show a causal link between these commonly affected areas and the Griever’s workplace issues. The Grievor’s attendance, performance and relationship issues appear to have been the type of conduct that could reasonably be expected as a result of an inability to cope with the stressors in her life, exercise judgment, planning/organization. The Griever’s work record illustrates an inability to understand and follow through on workplace issues, especially to organize her life to attend work on a regular basis (para. 93).
The Grievor’s failure to attend work for the three shifts was found to be causally related to her disability. It is important to note, however, that the Panel stated that the evidence did not establish a link between the Grievor’s mental disability and her dishonesty in relation to her absences:
The Grievor was capable of choosing to be honest with her Employer; she chose to be dishonest (para. 97).
A prima facie case of discrimination was established.
The onus then shifted to the Employer to justify its requirement of regular attendance at work and to report absences as a bona fide occupational requirement and to demonstrate on a balance of probabilities that:
- the impugned standard was adopted for the purpose rationally connected to the performance of the job;
- the standard was adopted in a good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
- the standard is reasonably necessary to the accomplishment of the purpose.
The Panel held that it was satisfied that criteria one and two were met. The third criterion proved to be contentious. The Panel found that the Employer’s obligation to investigate and implement accommodation arises only when the Employer has knowledge of the disability and there has been a request for accommodation. The Grievor had never disclosed her disability. The Panel concluded that the evidence did not support the argument that the Employer ought to have known about the Grievor’s disability or inquired as to whether she had one until the final meeting about her unexplained absences. The Panel noted that during the meeting, the Grievor was asked, but did not acknowledge, having a disability:
There was nothing in the Grievor’s workplace behavior, including her work performance difficulties with other employees or her attendance issues that ought reasonably to have alerted her supervisors to the possibility that she had a mental disability and that her attendance issues and work performance may be attributed to such disability. While the Grievor had a number of issues, she repeatedly offered the explanation that the difficulties were associated with a difficult marital relationship/issues and often with child care issues. Such explanations were reasonably accepted by the Employer who repeatedly assisted and “accommodated” the Grievor [by making repeated offer of access to the EAP, etc.] (para. 103)
However, the Panel nevertheless concluded that although the disability was not “perfectly evidenced at the time of discharge”, “so long as it is confirmed her mental disability may be considered at arbitration and give rise to a duty to accommodate” (para. 107). Notwithstanding that the Employer did not know of the disability at the time, the disability was now established and there was a link to the misconduct, “In such circumstances, we conclude that the Employer had a duty to accommodate the Grievor” (para. 107).
Discharge was held to be excessive, and lesser discipline was substituted. The discipline was assessed in light of the Grievor’s culpable misconduct, and her previous disciplinary record (which the Panel acknowledged could be looked at in a different light now that a disability was established). A two-month suspension was imposed in lieu of termination. The Panel declined full compensation, finding it was reasonable that both the Grievor and the Employer bear some responsibility for the financial losses sustained due to the delay in “substantiation” of the disability. June, 2011 was the earliest that all parties had an indication of a disability and none of the parties inquired further until September, 2013 (prior to the hearing). On that basis, the Panel awarded compensation from December 1, 2012.
Amendments to Saskatchewan’s Human Rights Code
As previously reviewed in the Prairie Human Rights Update, The Saskatchewan Human Rights Code underwent a significant transformation in 2011. The most significant change to the legislation was the abolishment of the Saskatchewan Human Rights Tribunal, leaving all adjudications of human rights complaints in Saskatchewan to be performed by the Saskatchewan Court of Queen’s Bench. The decisions below are the remnants of the Commission/Tribunal decisions and relevant arbitral jurisprudence.
Saskatchewan Human Rights Commission
Procedural Orders and Multiplicity of Proceedings
This year two notable decisions were considered from The Saskatchewan Human Rights Commission on judicial review/appeal, both addressing various procedural issues under the legislation and the relevant standard of review.
In University of Saskatchewan v Peng, 2013 SKQB 188, the Court considered a judicial review in respect of various issues, including the application of sec. 27.1(2)(d), which permits the Commission to discontinue a complaint where it is more appropriately dealt with in another forum.
The complainant employee, Peng, filed a complaint under the University’s Discrimination and Harassment Prevention Policy, saying that she experienced discrimination and harassment on the basis of race, creed, religion and colour. This resulted in an investigation under the policy with a conclusion that the complaint was not sustained.
Peng then complained to her union, asking it to grieve the result of the investigation on her behalf. The Union declined to do so, and Peng brought an unfair labour practice against the union.
At the same time, Peng also filed a human rights complaint with The Human Rights Commission, alleging the same grounds she alleged under the policy. The University argued to the Commission that on the basis of sec. 27.1(2)(d) (if the Commissioner is of the opinion that the substance of the complaint is appropriately dealt with by another proceeding, the Commissioner may dismiss it), the Commission should dismiss the complaint because it was dealt with by the investigation under the policy and the proceeding before the Labour Board. The University also argued on the basis of sec. 27.1(2)(f), that the Commission may dismiss a complaint if it is of the opinion that a further investigation would not reveal evidence of a contravention of the Code.
The Chief Commissioner found that the substance of the complaint was not adequately dealt with by the investigation under the policy or by the Labour Board proceedings. He also found that a finding under sec. 27.1(2)(d) did not preclude proceedings under the Code. Furthermore, he did not agree that further investigation would not reveal evidence of a contravention of the Code. The University’s application was dismissed.
The University then sought judicial review of this decision.
The parties agreed that the standard of review for the decision not to dismiss the complaint was reasonableness.
The Court then considered whether the Commissioner’s decision that the substance of the complaint had not been dealt with by the investigation and the Labour Board proceedings. The Court noted that the Commissioner considered B.C. (Workers’ Compensation Board) v Figliola, 2011 SCC 52, addressing a provision very similar to sec. 27.1(2)(d), considering the three questions set out by Abella to determine if the question had been appropriately dealt with in another forum:
- Was there concurrent jurisdiction to decide the issues?
- Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal?
- Was there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself?
The Commissioner acknowledged that the purpose of sec. 27.1(2)(d) was to avoid a multiplicity of proceedings, but also that he had before him a different set of laws than did the Court in Figliola. The Occupational Health and Safety Regulations, 1996, R.R.S. c. O-1.1, Reg 1, he noted, featured a requirement that an employer have a policy to prevent harassment making reference to The Human Rights Code, as well as a statement that the policy was not intended to discourage or prevent a complainant under it from exercising any other legal rights. Ultimately, he determined that the present case was sufficiently different that he was not bound by Figliola to dismiss the complaint.
The Court held that in reaching his decision, the Chief Commissioner exhibited the transparency, justification and intelligibility required to meet the test of reasonableness. It went on to say that, in addition, in order for an administrative decision to be reasonable, it had to be defensible in respect of both facts and law, remembering also the tribunal’s entitlement to judicial deference. Because this was a decision which required the Commissioner to interpret a statute (albeit on a reasonableness standard), the “range of acceptability and defensibility” was narrower. The Court held that, because his decision was intelligible and was supportable on the law, it was reasonable to conclude that the substance of the complaint had not been dealt with.
With respect to sec. 27.1(2)(f) (whether the complaint should be dismissed because an investigation would not produce any evidence of a breach of the Code), the Commissioner said that he was not prepared to adopt the investigation under the harassment policy in lieu of an investigation by the Commission, because the statements taken by the investigator were not under oath and Peng never had the opportunity to cross examine witnesses. The investigator’s report could be useful for the Commission investigator, but it did not take the place of the Commission investigator.
The Court held that the Commissioner made this decision in a transparent and intelligible manner and that it was supportable by the law. It was not fundamentally inconsistent with the facts or the law.
Although McEwan v Ecole St. Margaret School, 2013 SKCA 87, was not an employment case, it too dealt with procedural considerations that are applicable to matters before the Commission.
The case dealt with a human rights complaint brought by a child’s parents on his behalf, when his elementary school rescinded their right to have a key to a side door to get him into the building after instituting a “locked door policy” for safety reasons.
The Chief Commissioner of The Human Rights Commission dismissed the complaint as being without merit, finding that the school’s safety would be compromised if the McEwans continued to have a key. The Human Rights Tribunal reviewed that decision, and found that the Commissioner had no evidence on which to base his decision, and so found that it was unreasonable and set it aside.
The school appealed and sought judicial review. The Court of Appeal noted that, although nothing turned on it, an appeal alone would have been the preferable practice. The Court of Queen’s Bench granted the appeal and set the Tribunal’s decision aside, restoring the decision of the Commissioner.
The McEwans appealed to the Saskatchewan Court of Appeal. The Court made certain findings that could be significant in terms of procedure for proceedings under the Code. Two related issues before the Court were:
- What standard should the tribunal have reviewed the Commissioner’s decision?
- That standard determined, should the decision of the Commissioner have been set aside?
The Court held, with respect to number 1, that it was not necessary to determine the standard of review:
In this case, however, I find it is not necessary to decide whether the applicable standard of review is correctness or reasonableness. This is so because this appeal can be resolved by answering this question: did the Tribunal err when it found that the Commissioner’s decision did not meet the test for reasonableness on the basis of “no evidence?” Whether the standard of review is correctness or reasonableness, an essential finding made without evidence must result in the tribunal’s decision being set aside (See: Donald J.M. Brown, Civil Appeals, loose leaf, vol. 2, (Toronto: Canvasback Publishing, 2013) at topic 13:2210.) (para. 37).
The decision of the Tribunal was restored.
 Note that the Act replaced a number of other statutes not directly relevant to this review.
 SS 1979, c. S-24.1
 By amendments in An Act to Amend The Saskatchewan Human Rights Code and to make consequential amendments to The Labour Standards Act, 4th Sess, 26th Leg, Saskatchewan, 2010 [Bill 160] passed on May 18, 2011 and coming into force on July 1, 2011.
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