Ontarians will recall Tim Hudak's proposal, during his
campaign for leadership of the Progressive Conservative Party of
Ontario in 2009, to "scrap" Ontario's Human Rights
Tribunal. In his recent campaign for Premier of Ontario, Mr. Hudak
abandoned that idea in favour of reforming the existing system.
Saskatchewan, on the other hand, has forged ahead with its own
plans to eliminate its Human Rights Tribunal (the Tribunal) .
The Saskatchewan Human Rights Code Amendment Act, 2010,
S.S. 2011, c. 17 (Bill 160) was introduced on November 29, 2010 by
the conservative Saskatchewan Party government. It was proclaimed
into force on July 1, 2011. Human rights complaints in Saskatchewan
will continue to be received and investigated by the Saskatchewan
Human Rights Commission (the "Commission"), but hearings
will now be conducted by the courts. There are several other
changes in Bill 160, including the following:
A person filing a complaint must provide "sufficient
evidence that reasonable grounds exist" for believing there
has been a violation of the Saskatchewan Human Rights
Code. Previously, a person only needed to believe that
reasonable grounds existed to bring a complaint.
Complaints must be filed within one (1) year of the alleged
violation. Previously, the limitation period was two (2)
The Commission may require the parties to enter into mediation,
if there are no grounds to dismiss the complaint. Additionally, the
Commission may dismiss the complaint if the complainant rejects a
"fair and reasonable" settlement offer from the
There is no administrative appeal from a Commission decision to
dismiss a complaint.
The Commission may apply to the court for a hearing of the
complaint at any time. Parties to the hearing include the
Commission, which will have carriage of the complaint, the
complainant, and the respondent.
The court has broad remedial powers, including ordering a
respondent to comply with the Human Rights Code, adopt
anti-discrimination/anti-harassment programs, reinstate a
complainant to employment, compensate a complainant for all losses
and expenses arising from the violation, and/or provide
accommodation to the point of undue hardship.
The court may award up to $10,000.00 if the respondent acted
"wilfully and recklessly", or the complainant has
suffered injury "with respect to feeling, dignity or
The court may not award costs to any party unless it determines
that there has been "vexatious, frivolous or abusive conduct
on the part of any party".
Ontario's human rights regime was substantially altered in
June 2008, but in different ways than Saskatchewan's. Prior to
June 2008, individuals filed complaints with the Ontario Human
Rights Commission, which investigated, mediated, and made decisions
as to which complaints should be referred to Ontario's Human
Rights Tribunal for hearing. Now, complaints are filed directly
with the Tribunal, which purports to take an active approach to
adjudication, with greater emphasis on operational efficiency and
expediency. However, the system still struggles to deal with a
large number of complaints each year.
The new Saskatchewan regime is still in its infancy. Proponents
describe it as a progressive, constructive model that is focused on
finding resolutions (through alternate dispute resolution
mechanisms) rather than confrontation. They also point out that the
public lacked confidence in the "old" regime, because the
Tribunal was not perceived as independent. Detractors, however,
assert that judges do not have the same level of expertise in human
rights matters as members of the Tribunal, and transforming the
system involves an unnecessary expenditure of resources.
It will certainly be interesting to see whether the volume of
complaints will change, and how court decisions will compare with
old Tribunal decisions.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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