Amendments to The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the “Code”), were assented to May 18, 2011 and proclaimed into force July 1, 2011. The most significant change to the Code is the shifting of the role of the Saskatchewan Human Rights Tribunal, previously an independent decision-making body that adjudicated human rights complaints, to the purview of the Court of Queen’s Bench. The Saskatchewan Human Rights Commission (the “Commission”) had a very influential role in the changes and will continue to have input into the budget process as well as ongoing access to administrative supports. David Arnot, Chief Commissioner for the Commission, has cited delay in hearing complaints as the primary reason for this shift, as the average complaint has taken up to three years to be resolved.
One of the main components of the new model is a greater emphasis on case resolution and a shift away from the punitive retribution justice model through a practice called directed mediation. This practice will be modeled after Manitoba’s process which has a 98% rate of settlement without litigation, hearings or tribunals. On occasions when a hearing is required, which the Commission hopes will be rare, the Commission will continue to provide a lawyer at no cost to the complainant at every step in the litigation process up to and including hearings in the Supreme Court.
Additionally, the Code is now subject to a more rigorous objective test for complaint intake. Whereas the previous version of the Code allowed any person with reasonable grounds for believing that any person had contravened a provision of the Code to make a complaint, the Commission now has a higher threshold for accepting a complaint, based on the sufficiency of the evidence as well as reasonable grounds that a contravention has occurred. The Commission will request more information from the complainant if needed and if a complaint is dismissed, the complainant can make an application to the court for judicial review and the Commission will represent the complainant at, and bear the cost of, all future hearings if the complainant is successful in the judicial review application.
Another major change to the Code is the new limitation period for filing a complaint. The Commission has found that complaints filed more than one year after the incident occurs are more difficult to investigate and less likely to be proven and accordingly the limitation period has been lowered from 2 years to 1 year. However, in circumstances that warrant an extension, the Chief Commissioner will have the discretion to extend the limitation.
All provinces have a form of human rights tribunal and the abolishment of the Human Rights Tribunal in Saskatchewan is a first in Canada. For employers and others in Saskatchewan who are subject to the Code, the new regime will most likely take on a more formal and legalistic approach to the adjudication of human rights complaints as compared to the more informal approach previously adopted by the Human Rights Tribunal. For employers who have previously been subjected to time consuming and unsubstantiated human rights complaints and have been forced to defend the matters before the Human Rights Tribunal, the amendments to the Code are likely a good thing.