When a human rights complaint proceeds to a court hearing after the Human Rights Commission has completed its investigation, the respondent is entitled to receive relevant documents and conduct oral questioning. The Saskatchewan Court of Queen’s Bench recently affirmed this.
In University of Regina v Commissioner of the Saskatchewan Human Rights Commission, 2019 SKQB 4, the respondent to a human rights complaint requested and eventually applied for an order for the Commission to produce documents and for the complainant to attend oral questioning before a court reporter. This discovery procedure is contemplated under The Queen’s Bench Rules in civil actions.
The Commission resisted the respondent employers’ requests and application. It asserted that the procedure The Saskatchewan Human Rights Code, SS 1979, c S-24.1 (the “Code”) envisioned is an abbreviated one – to which the regular rules should not apply, given that an administrative process had already played out prior to the hearing.
In its decision, the Court held that the discovery procedure is a “suitable and necessary method of ensuring relevant information is collected” before the hearing.
In the Court’s reasoning, the further information obtained during disclosure and questioning may lead to a more streamlined and efficient hearing, thus preserving the intentions of the Code. The Court ordered that the documents the respondent requested be provided subject to a particular valid objection, and further directed that the complainant attend oral questioning.
In her reasons, Justice Krogan relied on the Court’s previous decision in Robinson v Hospitals of Regina Foundation Inc., 2016 SKQB 74. In that case, the Court held that the entirety of The Queen’s Bench Rules were available to parties – including discovery rights – subject to modification by the Code.
The Commission previously appealed that decision, but abandoned the appeal before it was heard by the Saskatchewan Court of Appeal.
Although only a small number of human rights complaints progress to a hearing before the Saskatchewan Court of Queen’s Bench in Saskatchewan, this recent decision further confirms the scope and limits of the procedural rights to which a party is entitled in the full process.
Developments with respect to human rights complaints procedures are especially important for employers.
Collectively, employers are the majority of respondents in human rights complaint proceedings. According to the Saskatchewan Human Rights Commission’s report for the April 1, 2017 to March 31, 2018 fiscal year, 103 of the 118 formalized complaints received were employment related.
In cases where employment-related complaints are not resolved or dismissed at an early stage, employers should know that they do have procedural rights before the Court and what those rights entail.
The Code was repealed and replaced in October 2018 by the Saskatchewan Human Rights Code, 2018, SS 2018, c S-24.2. The applicable provisions relied upon in the cases discussed above are preserved at section 35(3).