LEGAL AND LITIGATION
Desai v. North Ridge Development Corporation
In 2022, the Commission advanced a complaint to hearing in King’s Bench Court; Desai v North Ridge Development Corporation, 2023 SKKB 3 [Desai]. The Court rendered its decision in the matter in 2023.
The complainant, Ms. Desai, claimed that her employer discriminated against her on the basis of family status when it required her to return to work when her elderly mother became unwell during an extended visit with family in another province.
Ms. Desai had travelled out of province to assist in her mother’s care and wished to remain there for two weeks, but was required to return after only one week. Ms. Desai’s mother regularly resided with Ms. Desai and had protracted health issues, about which the employer had been informed.
Ms. Desai returned to work as directed by her employer but resigned with two weeks’ notice. Ms. Desai asserted that she felt compelled to resign given that her employer had become inflexible with regards to her mother’s needs, which were protracted and not going to improve.
The Commission regularly receives complaints on the basis of family status, but they are much less common than complaints based on some other prohibited grounds.
Family status discrimination has been the subject of disagreement among Courts and Tribunals in Canada, despite well-settled principles applying to all human rights matters.
Tribunals and Courts elsewhere in Canada have found that, in workplace settings, family obligations will often come into conflict with work obligations, and that this does not always amount to discrimination.
The Federal Court of Appeal and the British Columbia Court of Appeal have each held that complainants alleging their employers have failed to adequately accommodate them on the basis of their family obligations will need to prove elements not present in other types of discrimination cases.
Specifically, the British Columbia Court of Appeal held that complainants must show:
- a change in a term or condition of employment imposed by an employer;
- which results in serious interference with a substantial parental or other family duty or obligation.
And the Federal Court of Appeal held that complainants must show:
- a child is under the complainant’s care and supervision;
- the childcare obligation at issue engages the complainant’s legal responsibility for that child, as opposed to a personal choice;
- the complainant has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- the impugned workplace rule interferes with the fulfillment of the childcare obligation in a manner that is more than trivial or insubstantial.
Either of these tests place burdens on complainants that are not present in claims of discrimination on the basis of any other prohibited ground.
Ultimately, Ms. Desai’s claim of discrimination was not accepted by the Court. Primarily, the Court was not satisfied that Ms. Desai’s elderly mother needed Ms. Desai to be with her for an additional week, and in fact, Ms. Desai did return to work during the time she had requested to be away.
Rather, the Court found that Ms. Desai’s request for time off was based on logistical concerns about when it was more convenient for Ms. Desai to return to Saskatchewan. Therefore, the Court held, Ms. Desai had failed to establish a prima facie case of discrimination.While the Court found that Ms. Desai did not establish a prima facie case, the Court did make important statements about the law in this area.
The Court of King’s Bench decided that the long-established principles of human rights law apply to family status cases, including child care and elder care cases. Specifically, a complainant will have established a prima facie case if she or he can show that:
- she or he has a protected characteristic of family status;
- she or he suffered an adverse impact; and
- her or his family status was a factor in that adverse impact.
The effect of this decision is that other factors (such as the extent of the complainant’s own efforts to find alternative ways to satisfy their family obligations) will only be considered at the second stage of legal analysis, where the employer is required to show its actions were justifiable.
This does not mean that accommodation of family obligations falls squarely on the employers (and by extension other employees), but it does mean that employers will need to make efforts to find reasonable accommodation for employees with child care or elder care obligations, up to the point of undue hardship, and this will need to be done in cooperation with the employee seeking accommodation.
The potential solutions that employees and employers may reach will be based on the specific circumstances of each case, in much the same way as a disability accommodation, or needs arising from other prohibited grounds of discrimination.
Arcand v. Banff Constructors Ltd.
The Complainant, Lance Arcand, filed a complaint with the Saskatchewan Human Rights Commission alleging discrimination in employment based on his race. Arcand, a First Nations person, was hired by Banff Constructors Ltd. in August, 2018 to work as a heavy equipment operator at the Regina Bypass project, in and around Regina, Saskatchewan.
Arcand initially worked with a crew of 12 or 13 other equipment operators, but within a couple weeks was moved to a location away from the other crew members, where he was assigned to load material into trucks with his excavator.
Arcand alleged that after he was moved to this location, his supervisor made derogatory jokes and comments to him that were based on his race. Arcand further alleged that his employment was terminated by Banff just days after he complained about his supervisor to its human resources department.
The termination of Arcand’s employment was not in issue at the hearing of the complaint. That portion of the complaint had been dismissed as it had been determined in another forum that Arcand had been laid off from his position with Banff for legitimate business reasons.
At the hearing, Banff denied that Arcand’s supervisor made any jokes or comments to Arcand based on his race. Banff further reiterated to the court that the termination of Arcand’s employment had nothing to do with his complaint about his supervisor. Arcand was laid off as it was the end of the construction season, and the Regina Bypass project was winding down.
The hearing judge noted that Arcand had submitted detailed written complaints to Banff’s human resources department regarding alleged safety issues and harassment by his supervisor, but there was no mention of any racial remarks.
Arcand’s supervisor expressly denied making any comments or jokes regarding Arcand’s race. The judge further noted the evidence of Banff’s labour advisor who testified that on two occasions he specifically asked Arcand during telephone conversations if any of the issues outlined in his written complaints were related to his race, and that Arcand indicated they were not.
Despite evidence from Arcand’s counsellor regarding a conversation with him while he was working for Banff, in which he indicated that his supervisor was making racial comments toward him, the court was satisfied that the comments were never made.
While the court ultimately determined there had been no breach of The Saskatchewan Human Rights Code, 2018, it was critical of Banff’s decision not to investigate Arcand’s written complaints regarding safety issues and harassment by his supervisor.
CUPE, Local 21 and Jane Doe v. City of Regina and Saskatchewan Workers’ Compensation Board
The Commission has applied to intervene in an application for judicial review by CUPE, Local 21 and Jane Doe which seeks to set aside a decision of the Worker’s Compensation Board.
Jane Doe has a grievance against the City of Regina as a result of sexual harassment. Jane Doe was seeking certain damages, including compensation under s. 40 of the The Saskatchewan Human Rights Code, 2018 for damage to dignity and self-respect. The City of Regina applied to the Workers’ Compensation Board (WCB) for a ruling under s. 169 of The Workers Compensation Act (the Act). The WCB found that Jane Doe had a compensable injury under the Act so s. 168 of the Act barred Jane Doe from obtaining any additional compensation through her grievance proceeding.
The Commission believes that the WCB ruling is incorrect. The WCB did not consider that the Code is quasi-constitutional legislation that supersedes regular legislation. The Court’s ability to order an employer to pay damages for breaches of s. 16 of the Code compensates victims of discrimination in the workplace. It also deters employers and individuals from committing acts of discrimination.
The effect of the Board’s decision is to eliminate additional compensation under the Code for women who are harassed in the workplace and suffer a workplace injury. This may include victims of sexual assault. Women who are harassed and not injured would still be entitled to compensation under the Code. The Commission believes this is an illogical result that is inconsistent with the intentions of the Legislature.
Workplace sexual harassment complaints represent approximately 10% of the total complaints received by the Commission annually. The vast majority of complaints are received from women.
The Commission believes that Code protections in employment are vital to promote equality for women under s. 15 of the Canadian Charter of Rights and Freedoms. The Commission also believes that Code protections for women in the workplace contribute to security of the person under s. 7 of the Charter.
Although this case involves a complaint of sexual harassment, the Commission believes that it could extend to any act of discrimination in the workplace. As such, this decision undermines the workplace rights of racial and ethnic minorities, people with disabilities, and the LGBTQ2S+ community.
The Commission expects that its intervener application will be heard in June 2023.
DG v RM of Baildon No. 131
The complainant, D.G., was employed by the Rural Municipality of Baildon (Baildon). D.G. sustained a head injury and concussion in an accident that was unrelated to work. D.G. provided Baildon with a doctor’s note that stated she would be absent from work. D.G. attempted to return to work a few months later. The Reeve and a Councillor bullied her, which exacerbated her symptoms. She recommenced medical leave. She provided Baildon with medical notes periodically during her absence.
Approximately 18 months after D.G.’s original injury, Baildon advertised for a replacement. D.G.’s physician completed a medical questionnaire recommending a gradual return to work with part-time hours. Baildon refused to accommodate the request for a gradual return to work.
Baildon insisted that D.G. could only return to work when she was able to work full-time. Baildon also asserted that continuing the accommodation process would be an undue hardship.
The Commission accepted D.G.’s complaint in the fall of 2016. Efforts were made to resolve the complaint by mediation early in the process. After mediation proved unsuccessful, the complaint was investigated fully.
Evidence was gathered and was considered by the Chief Commissioner. The Chief Commissioner found there were no grounds to dismiss the complaint and directed the parties to enter into mediation once again with a view to encouraging resolution of the matter.
In the fall of 2019, the Chief Commissioner applied to the Court of King’s ’s Bench for a hearing of the complaint. At this point in the process, the timeline for resolution of the complaint is largely within the direction of the Court.
In response to the Commission’s application, a pre-hearing conference was ordered and took place in the fall of 2020. As the matter did not resolve at that stage, a hearing was ordered and took place in March of 2021. The Court rendered its decision in April 2022.
The Court found that Baildon discriminated against D.G. because of her disability. Baildon failed to establish that accommodating a part-time return to work would have resulted in undue hardship. The Court awarded D.G. approximately $112,000.00 damages for loss of wages, benefits, and $10,000.00 special compensation for damage to dignity.
Shortly following the decision, Baildon filed its appeal of the matter with the Court of Appeal, asking the Court to set aside the hearing decision. In March of 2023, it filed the balance of the legal documents required to advance the appeal. The Commission filed a cross-appeal seeking to increase the special compensation award from $10,000.00 to $20,000.00.
The Commission expects that the appeal of the matter will be heard in the fall of 2023.
McDonald, Evans, and Young v. The Government of Saskatchewan
The Saskatchewan Human Rights Commission received three independent complaints from individuals who had been Justices of the Peace, but who were required to retire pursuant to s.8(2) of The Justices of the Peace Act, 1988, J-5.1 (“the Act”). In Saskatchewan, provincial legislation requires Justices of the Peace to retire at age 70. That retirement is mandatory, without regard to the individual’s capacity to continue in the role.
Justices of the Peace are appointed by the Government of Saskatchewan by Order in Council. There are similar mandatory retirement provisions in place for Judges of the Provincial Court.
The Complainants believe that the Government of Saskatchewan discriminated against them on the basis of their age by forcing them to retire at the age of 70. The Commission accepted the complaint for investigation, and thereafter the matter was referred to hearing.
At a hearing in December of 2022, the Commission advanced the argument that s. 8(2) of the Act is constitutionally invalid as it is not consistent with s. 15(1) of The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (the “Charter”), and therefore is of no force and effect. Section 15(1) of the Charter states:
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Further, The Saskatchewan Human Rights Code, 2018, specifically protects people from discrimination in their occupation. The Code binds the Crown (the Government of Saskatchewan) and every law is inoperative to the extent that it authorizes something prohibited by the Code, unless that law falls within an exemption contained in the Code, or, the legislature has expressly declared a law to be exempt from the human rights protections of the Code.
After hearing, the Court reserved judgment. A decision is expected in the matter in 2023.