Most complaints that are on track for hearing at the Court of Queen’s Bench are usually resolved through Directed Mediation. As a result, few human rights complaints are actually heard by the court.
What Is Directed Mediation?
Directed mediation is a facilitated discussion between the parties to a complaint. This discussion is conducted by the Commission and takes place at the discretion of the Chief Commissioner. The Chief Commissioner reviews the findings of the investigation and determines that the complaint has sufficient merit to proceed to a hearing.
The Commission does not provide legal representation to any party but, in some cases, the Chief Commissioner may ask the Commission Lawyer to participate in directed mediation. In such cases, the role of the Commission Lawyer is to represent the Commission rather than any party.
The parties may also have a lawyer assist them with directed mediation. At the same time, the mediator works on behalf of the Commission to help the parties to the complaint arrive at a mutually agreeable settlement.
The complaint process is not open to the public. Settlement discussions in the directed mediation are confidential. If the parties are unable to reach a settlement agreement and the complaint goes to the Court of Queen’s Bench for a hearing. At this point, the process is open to the public.
In a hearing, a Queen’s Bench Justice will assess the merits of the complaint based on the evidence presented and issue a decision. The outcome of a Court of Queen’s Bench hearing is difficult to predict. The court’s assessment of liability and/or the remedy provided may be unfavorable to one or more of the parties.
The remedies available under the Code are intended to address the harm caused by discrimination and to prevent future discrimination. The focus is on restorative rather than punitive outcomes.
Some of the available remedies include:
- Monetary compensation for financial losses or expenses caused by the discrimination, and monetary compensation for injury to feelings, dignity, or self-respect;
- A change in behaviour, policy, or practice to ensure that the discrimination does not continue;
- Action to correct harm caused by the discrimination;
- Additional compensation in cases where there is evidence of harsh or malicious conduct; and
- A broad, remedial program If there is evidence of a pattern or practice of violating The Saskatchewan Human Rights Code.
The Commission will only seek remedies that are supported by the evidence and legal authorities. Complainants may seek additional compensation, or other remedies, but will be responsible for presenting their own arguments to the court.
Settlements that include financial remuneration may consider factors such as:
- If the harm was only partially caused by the discrimination;
- Compensation for a lost opportunity may be less than the amount that might have been earned or awarded;
- Compensation may even be unavailable if it is found that the amount claimed was unlikely to be received by the complainant;
- A complainant’s efforts to limit losses and harm caused by discrimination;
- A complainant can only obtain compensation for the actual loss. If the complainant received other compensation for the loss, this may be taken into account in assessing the award; and
- Tax implications, or be subject to employment-related deductions.