The Saskatchewan Human Rights Code Amendment Act, 2010, S.S. 2011, c. 17 (former Bill 160), was proclaimed in force on July 1, 2011. The overall purpose of the Act is to make the human rights complaints process more timely and flexible by streamlining the process for dealing with complaints and allowing more cases to be resolved without litigation.
A major and, according to some, welcome change is the elimination of the Saskatchewan Human Rights Tribunal and the transfer of the tribunal’s powers to the Saskatchewan Court of Queen’s Bench, which will hear complaints that cannot be resolved by alternative dispute resolution methods.
According to the government, human rights cases that can’t be resolved by mediation are too important and should be heard by full-time judges whose neutrality and fairness are guaranteed by their judicial independence.
In addition, a person must provide “sufficient evidence” that reasonable grounds exist for believing that someone has contravened the Code when a complaint is brought. Previously, a person only needed to believe that reasonable grounds existed to bring a complaint.
Section 48 of the Code has been significantly modified. Employers may now implement a “reasonable and justifiable measure” designed to prevent, eliminate or reduce disadvantages for groups who suffer disadvantages based on one or more of the prohibited grounds of discrimination under the Code. These measures may now be undertaken on a permissive basis, removing the old requirement to get a formal exemption from the Commission. Any measures an employer undertakes may be subject to a human rights complaint.
Additional changes include:
- Allowing more complaints to be dealt with by alternative dispute resolution processes, such as mediation
- Allowing the Human Rights Commission to seek more information about a complainant before commencing the complaint resolution process
- Allowing the chief commissioner to require the parties to attempt mediation before holding a hearing
- Allowing the chief commissioner to dismiss a complaint, where the complainant refuses to accept a reasonable offer of settlement made by the respondent
- Reducing the limitation period for filing a complaint, from two years to one year
Furthermore, appeals of the Commissioner’s treatment of a complaint must be made to the Court of Queen’s Bench at the complainant’s own cost.
The Saskatchewan government is proceeding to implement the above changes and looking at the Manitoba model of complaint resolution.
Manitoba has two mediation processes:
- Pre-Complaint Mediation/Conciliation: This option is voluntary and available before a formal written complaint is filed. Conciliation takes place by telephone. Both parties must participate. The terms of the settlement are confirmed in writing to avoid any misunderstandings. If the parties don’t comply with the terms, the commission may look further into the matter and formalize a complaint.
- Directed Mediation: This option occurs after a formal complaint is filed and mediation has not settled the matter. An investigation is started, and, once completed, a report is submitted to the board of commissioners. If the board deems there is sufficient evidence to warrant the complaint, it may send it to mediation for resolution or may call for a hearing.
If mediation fails, and the complainant did not unreasonably reject an offer of settlement, the board will direct a hearing. The commission lawyer will represent the complainant.
The choice of Manitoba as the standard is based on that province’s success rate with human rights complaints: 98 percent are settled by resolution and agreement without litigation, prosecution or tribunals. According to statistics provided by the Saskatchewan Human Rights Commission, in the last two years, Manitoba has conducted only three human rights prosecutions.
The point is, the aim of the commission is to have a mediation process that is able to resolve any complaints and disputes allowing them to resort to prosecution only when necessary. We can only hope that the new process will work as well for Saskatchewan as it does for Manitoba, in numbers and in practice. Maybe that would please both the human rights crusaders who support the tribunal model and the others who feel the tribunal model is flawed.
One important question remains unanswered: If the process is working so well in Manitoba, why aren’t more provinces emulating it?