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ENFORCEMENT AND PROCEDURE - Commissions - Powers

Monday, November 11, 2019 @ 9:10 AM  


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Appeal by Lapchuk from the dismissal of his application for judicial review of a decision of the Human Rights Commission dismissing his complaint. The appellant was a long-time government employee. He was injured in the course of his employment during an altercation with a member of the public. He claimed that the incident reactivated PTSD symptoms from the past and that the seriousness of the incident was exacerbated by the government’s failure to provide him with self-defence training. The incident became the subject of a government investigation which concluded that the appellant acted in an unprofessional manner in his interaction with the member of the public. The government thus decided to terminate the appellant’s employment due to violations of professional standards and employer policies. The union initiated a grievance on behalf of the appellant which was dismissed. The appellant also commenced an action for wrongful dismissal. The action was dismissed on the basis that the appellant’s various complaints raised issues that were properly addressed in the context either of the arbitration grievance process or proceedings before the Labour Relations Board. The appellant commenced a human rights complaint alleging that his termination was discriminatory. The commissioner granted the government’s application for summary dismissal of the human rights complaint on the ground that the substance of both the termination and accommodation aspects of the complaint had been appropriately dealt with pursuant to another Act or proceeding. The chambers judge held that the chief commissioner did not make a mistake and was correct in deciding that the arbitrator shared concurrent jurisdiction with the Human Rights Commission. The chambers judge concluded that the chief commissioner’s determinations that the legal issue decided in the labour arbitration was essentially the same as that raised in the human rights complaint and that the arbitration process provided the appellant with an opportunity to know the case to be met and the chance to meet it, were reasonable.

HELD: Appeal dismissed. The chambers judge correctly identified and applied the standard of review applicable to the chief commissioner’s determination that the Human Rights Commission and the arbitrator enjoyed concurrent jurisdiction to decide the appellant’s human rights complaint and that the complaint before the commission was essentially the same as that determined in the grievance arbitration. The chambers judge correctly held that the chief commissioner’s determination that the complaint before the grievance arbitrator and the complaint brought to the commission were essentially the same was appropriately reviewed against a standard of reasonableness. The commissioner asked himself exactly the right question, which was whether the substantive issues that the appellant asked to be determined by the commission had already been determined in the arbitration. The substance of the two matters raised in the human rights complaints were not only staked out as issues in the arbitration, but they formed the architecture for the evidence presented to the grievance arbitrator. The arbitration decision contained a succinct summary of the nature of the evidence before the arbitrator which addressed the centrality of the appellant’s disability-based human rights complaint to the issues in the arbitration. The commissioner reasonably satisfied himself that the substantive issues at play before the grievance arbitrator were essentially the same as those the appellant was seeking to bring forward to the commission. The chambers judge correctly determined that the standard applicable to the review of the chief commissioner’s determination that the grievance arbitration provided an opportunity for the appellant to know the case to be met and have a chance to meet it was reasonableness. The chambers judge correctly held that the commissioner’s decision was reasonable.

Lapchuk v. Saskatchewan, [2019] S.J. No. 384, Saskatchewan Court of Appeal, P.A. Whitmore, J.A. Ryan-Froslie and R. Leurer JJ.A., October 2, 2019. Digest No. TLD-November112019001