Saskatchewan has so many administrative tribunals that they have formed an Association of their own. While some questions can only be answered by one particular tribunal, in many instances tribunals have "shared jurisdiction" over issues. For example, jurisdiction over The Saskatchewan Human Rights Code, 2018 ("Code") is shared by several tribunals, along with the Courts.
In cases of shared jurisdiction, the moving party may choose which tribunal will decide their case. They can "forum shop". But as the Saskatchewan Court of Appeal recently affirmed in Lapchuk v Saskatchewan, when forum shopping regarding a human rights question, complainants must choose a forum and stick with it.
Background
Mr. Lapchuk was a long-time Highway Traffic Officer in a unionized position.
While on shift in 2012, Mr. Lapchuk was involved in a fight with a civilian and became injured. His employer, the provincial government, investigated the event, found Mr. Lapchuk was at fault and terminated him.
In response, Mr. Lapchuk's union filed a grievance on his behalf. Among other things, it claimed the termination decision discriminated against Mr. Lapchuk based on his claimed disability, PTSD.
In addition to the grievance, Mr. Lapchuk filed a complaint with the Saskatchewan Human Rights Commission ("the Commission"), claiming discrimination in this forum as well.
Because both the grievance and the Code complaint concerned his termination, the Commission chose to wait for the grievance arbitration decision before continuing with its own investigation.
When the arbitration decision was released, the union was unsuccessful and the grievance was dismissed. The arbitrator found that there was insufficient evidence to prove that Mr. Lapchuk was disabled, or that the decision to terminate was based in part on any disability. The union did not seek judicial review (appeal) of this decision.
Section 30(2) of the Code allows the Commission to dismiss any complaint if "the substance of the complaint has been appropriately dealt with pursuant to another Act or proceeding". After receiving the arbitration decision, the Commission dismissed Mr. Lapchuk's complaint because it had already been "appropriately dealt with".
Mr. Lapchuk unsuccessfully applied for judicial review of this decision at the Court of Queen's Bench1 He then appealed that decision to the Court of Appeal.
The Court of Appeal's Decision
The Court confirmed that the Commission had asked itself the correct questions when deciding whether to dismiss Mr. Lapchuk's complaint.2 The proper questions were:
- Did both the arbitrator and the Commission have jurisdiction over the issue?
- Was the issue decided at arbitration "essentially the same" as the complaint to the Commission?
- Did the arbitration process provide an opportunity for Mr. Lapchuk to know the case to be met and have a chance to meet it?
The Court found that the Commission answered each question in a defensible, reasonable way.
First, as a result of the Supreme Court's 2003 Parry Sound decision, it was clear that the arbitrator had concurrent jurisdiction over the human rights question.
Second, both the arbitrator and the Commission were asked to determine whether Mr. Lapchuk had a disability, and whether any disability factored into the Government's decision to terminate him. While the arbitrator was asked a few additional questions, this does not change the answer to question 2. The issues were "essentially the same". As the Court noted, a good "litmus test is this: if Mr. Lapchuk had received a decision from the grievance arbitrator more to his liking, his complaint to the SHRC... would never have been pursued. It would have been moot."
Finally, the Court agreed that the arbitration process allowed Mr. Lapchuk an opportunity to meet his case. Although Mr. Lapchuk was unhappy with how the arbitrator interpreted certain evidence, it would have been improper for the Commission to review that interpretation. If the arbitrator mishandled evidence, Mr. Lapchuk and his union could have applied for judicial review of the decision. They did not. Mr. Lapchuk could not now ask the Commission to essentially sit in appeal over the arbitrator's decision.
In the end, the Court dismissed Mr. Lapchuk's appeal. It noted that provisions such as s. 30 of the Code are intended to avoid endless litigation, and to establish certainty for parties. Litigants should be able to know that a particular decision is final, unless appealed. The Commission's decision was reasonable and furthered these policy goals.
Conclusion
Lapchuk has lessons for parties on both sides of litigation. Those initiating litigation should wisely choose a lane and stay in it. Those responding to litigation may cry foul if the opposing party switches lanes midway through litigation, or after losing in the first.
Footnotes
[1] This decision was not reported.
[2] This framework is derived from the Supreme Court's 2011 Figliola decision, 2011 SCC 52.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
