THE SASKATCHEWAN HUMAN RIGHTS COMMISSION Applicant - v. -, 2023 SKKB 71

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 71 Date: 2023 04 04 Docket: QBG-RG-00009-2021 Judicial Centre: Regina ___________________________________________________________________________ IN THE MATTER OF A COMPLAINT FILED UNDER THE SASKATCHEWAN HUMAN RIGHTS CODE, 2018 BETWEEN: THE SASKATCHEWAN HUMAN RIGHTS COMMISSION Applicant - and - DEVERELL CROWE Complainant - and - SASKATCHEWAN POWER CORPORATION, KATHY POTTS and DR. PETER VAN ROOYEN Respondents Appearances: Scott A. Newell for the applicant Deverell Crowe on her own behalf Daniel P.

Kwochka for the respondents ___________________________________________________________________________ FIAT CROOKS J. April 4, 2023 ___________________________________________________________________________ Background [ 1 ] The complainant, Deverell Crowe, was employed by Saskatchewan Power Corporation [SaskPower] as a consultant from April 2, 2013, to March 3, 2016. [ 2 ] In February 2015, the complainant’s child had a son. The complainant asserts that she was the primary care provider for this grandson. In May 2015, the complainant inquired with SaskPower about taking parental leave to care for her grandson.

She formally requested a parental leave of absence in June 2015. That leave request was denied. [ 3 ] On June 27, 2015, the complainant provided a medical note to SaskPower stating she required medical leave from that date until August 31, 2015.

On July 31, 2015, the complainant submitted a short term disability benefits application form to SaskPower, listing a number of medical concerns requiring her to be absent from work. [ 4 ] On August 14, 2015, Dr. van Rooyen, the physician who provided advice to SaskPower’s Return to Work Department, confirmed the complainant’s short term disability benefits would be approved to August 31, 2015. However, any extension would be subject to an independent evaluation. [ 5 ] On August 25, 2015, the complainant provided a medical note to SaskPower supporting an extension of her medical leave to September 27, 2015.

Dr. van Rooyen directed the complainant to undergo a fitness-to-work assessment before further benefits would be approved. On August 26, 2015, the complainant’s supervisor advised the request for parental leave was denied. [ 6 ] Based on the results of the multiple assessments conducted, the complainant’s short term disability benefits were extended to November 18, 2015. The following day, the complainant was placed on unpaid personal leave.

On December 22, 2015, the complainant was denied long term disability benefits. [ 7 ] SaskPower communicated a number of expectations to the complainant regarding her return to work, including

inpatient treatment. The complainant took the position that she was unable to participate in inpatient treatment as she was providing care for her grandson. Alternatives were proposed by the treatment facility to allow the complainant to participate on an outpatient basis; however, this approach was rejected by SaskPower. [ 8 ] On March 1, 2016, the complainant was provided a termination letter, which advised that her employment contract would be terminated as of March 3, 2016.

This letter noted that termination was based on the complainant’s failure to complete or participate in an approved treatment program and in the absence of an acceptable plan to return to her employment. SaskPower assessed that undue hardship had been reached in their attempts to accommodate the complainant, pursuant to s. 16 of The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ Code ]. [ 9 ] The Saskatchewan Human Rights Commission [Commission] asserts that SaskPower failed to continue the complainant’s employment as a result of her disability, contrary to s. 16 of the Code .

SaskPower terminated the complainant while she was on a medical leave as a result of her disability based on her purported failure to follow a treatment plan that was imposed upon her. [ 10 ] The complainant also alleges that her confidential health and medical information was disclosed and shared, breaching the complainant’s privacy rights. [ 11 ] SaskPower suggests the primary reason the complainant required an absence from her employment was to care for her grandson.

They attempted to facilitate the complainant’s return to work and, when it was determined the complainant was not engaging in that process, they terminated her employment. [ 12 ] The application for hearing of this complaint was filed with the Court of King’s Bench on January 5, 2021.

The remedies sought include: a. lost income of approximately $240,000 (and accruing); b. lost benefits, including lost pension, of approximately $40,000; c. moving expenses of $6,750; and d. $60,000.00 compensation under s. 40 of the Code . [ 13 ] The pre-hearing conference was held on March 31, 2021; however, the respondents requested document production and questioning be complete prior to the pre-hearing conference being concluded.

The presiding justice directed the parties to exchange affidavits of documents within 30 days and adjourned the pre-hearing conference. [ 14 ] While the underlying facts provide background, the issue central to the applications before the Court arises from the positions taken by counsel during questioning of the complainant. The Questioning [ 15 ] On February 10, 2022, counsel for the respondents conducted questioning of the complainant. During the questioning, counsel for the Commission interjected on the complainant’s behalf, objecting to a question asked of the complainant by counsel for the respondents.

The Commission’s legal counsel also advised the complainant to refuse an undertaking, which she subsequently did. [ 16 ] The refused undertaking reads as follows: To provide all the particulars of and communications between [the Complainant] and the Saskatchewan Human Rights Commission regarding how the affidavit of documents was put together. [ 17 ] Counsel for the respondents objected to Commission counsel’s interference with questions asked of the complainant during questioning on the basis that they were not the complainant’s counsel.

There was a lengthy discussion during questioning, transcripts of which have been tendered. Samples of these discussions include: Q [Mr. Kwochka]. Okay. Do you recall putting together a list of the documents that are relevant to this complaint? A [Ms. Crowe]. I was asked to put together a list of documents, correct. Q. Okay, and do you recall swearing an affidavit stating that to the best of your knowledge these were the – MR. NEWELL: Dan, I think she should look at the document. MR. KWOCHKA: Okay. Yeah. I’ll wait for her to bring it up. I assumed she’d have it available on her screen.

She indicated she did, so – MR. NEWELL: Oh. Yeah, I don’t know the answer to that. A. Well, that kind of was for me to do a search if I don’t know what you’re asking. MR. KWOCHKA: Okay, but while we do that, Scott, I need you to remember that you are not counsel for Ms. Crowe, so I expect no interruptions from you. Clear? MR. NEWELL: I have carriage of the matter pursuant to The Code , and I will object as I see fit.

[Transcript, February 10, 2022, page 11, line 16 to page 12, line 15] ... Q. … I put you on notice. You conduct yourself how you see fit, but I put on the record that you’re not counsel for Ms. Crowe. I understand that you’re acting for the Saskatchewan Human Rights Commission, but that does not permit you to make objections on behalf of Ms. Crowe. So that’s my position. I put it on the record. If you disagree, you’re free to sort of take that position. [Transcript, February 10, 2022, page 13, lines 11 to 20] ... A. I also object. I did not know that that was the case.

I was not advised that I would need a counsel. I was – I was advised that the Commission was acting on my behalf as well through this complaint process, and – [Transcript, February 10, 2022, page 14, lines 1 to 5] ... MR. NEWELL: I’ll just – just to be clear, I don’t – I don’t agree with his characterization of my role, Deverell. That’s never been the case. Certainly there’s been many hearings where the Commission has run the hearing and has objected to questions, and it would be in – in my view it would be completely contradictory that – to take a different

interpretation of the way these proceedings have carried on for 40 years simply because we’re in questioning. MR. KWOCHKA: Well, Scott, I’ll state that the Court has been very very clear that the Queen’s Bench Rules apply. You’ve confirmed throughout that you’re not counsel for Ms. Crowe, so how do you think you have any role to sort of object to my questions to her, understanding that you have a role in respect of the Commission? You have no standing to object to questions that I ask her, and if – MR. NEWELL: Well, there’s – MR. KWOCHKA: – she has a different understanding – let me finish.

And if she has a different understanding – it’s clear that she does – then I think we better clarify that now because I think what I hear is her asking for counsel. MR. NEWELL: Well, I’m – I can tell you that I certainly intend to object to questions that I feel are inappropriate, and I suppose when that happens and if you intend to bring an application saying I’m not permitted to do that, that might be the best way to handle it. MR. KWOCHKA: Well, if you are telling me that – if you are telling me that you consider that you are counsel for Ms.

Crowe with standing to object – and that certainly appears to be her understanding – then – then I do intend to make that application and have that issue clarified because I – I think your position is completely wrong. MR. NEWELL: I’m not counsel for Ms. Crowe pursuant to The Saskatchewan ... Human Rights Code. The Commission has carriage of the matter.

For the last 40 years, 40-plus years the Commission has run hearings, they’ve questioned parties, they’ve objected to questions from counsel for Respondents, and the process was set up so that individuals did not – do not need to retain their own counsel, and that’s why the Commission’s given conduct of the matter, and – MR. KWOCHKA: Scott, when you refer back to 40 years, obviously The Rules have changed substantially since these matters are now decided by the Court of Queen’s Bench, and there is no decision that would say that that’s acceptable. We are bound by the Queen’s Bench Rules.

The Rules are that parties have counsel. Either they do or they don’t. You can’t have it both ways. You can’t say I’m counsel for the Commission, I’m not counsel for her but maintain some right to object or interfere with my questioning. ... [Transcript, February 10, 2022, page 15, line 18, to page 18, line 11] ... Q. Now the document itself, the affidavit of documents, did you prepare that document called affidavit of documents? A. I didn’t type affidavit of documents, no. Q. Who did that? [Transcript, February 10, 2022, page 22, lines 11 to 15] ... A.

It was sent to me to Edmonton, and I brought it to Saskatchewan. Q. Sent by whom? A. By Scott. Q. Okay. How did Scott know which documents to put inside that document? A. I put – I put the documents together. [Transcript, February 10, 2022, page 22, line 23, to page 23, line 4]

... A. I did not – Q. Did you – A. – write the cover page. Q. What about the other – did you list the documents in that – A. Yes – Q. – format? A. – I did. Q. Okay. Go back to that. I’m going to – I’m asking Victoria to put that document back on the screen, and so you’ll see under

Schedule 1 – do you see that Ms. Crowe? A. I can’t remember if I did that table or if that table was completed by the Commission. Q. Well, can you think about it a little more? Does that look like something that you would have put together? A. Well, I could go to my computer and look at my computer. Q. Okay. I’ll tell you what. Do you undertake to go look at your computer and you can tell me later whether you put that document together, that table, or better yet, I’m going to restate that.

Would you give me your undertaking that you will give me all the particulars of the – and provide the communications between you and the Commission as to how that affidavit of documents was put together? MR. NEWELL: I object to that question. MR. KWOCHKA: All right. We’re going to stop, Scott. MR. NEWELL: Not providing all of the documents. Litigation privilege may apply. MR. KWOCHKA: Litigation privilege for whom? MR. NEWELL: The Commission’s prosecuting the – MR. KWOCHKA: Are you – MR. NEWELL: – complaint, and she is the Complainant. MR.

KWOCHKA: So are you claiming litigation privilege on behalf of the Commission or on her behalf, Scott? MR. NEWELL: Both . [Transcript, February 10, 2022, page 23, line 11, to page 25, line 6] [Emphasis added] Applications [ 18 ] The first application was brought by the applicant, the Chief Commissioner for the Saskatchewan Human Rights Commission. The Commission seeks a ruling of the Court confirming that counsel for the Commission has standing to object during the questioning of the complainant.

The Commission also seeks an order requiring the respondents to complete questioning of the complainant within 45 days. There is also an application to impose a deadline for the respondents’ witnesses to address the undertakings arising from questioning. [ 19 ] In response, the respondents bring a corresponding application, requesting direction on the Commission’s ability to object to questions asked during questioning of the complainant or during a hearing. The respondents also seek direction regarding the Commission’s status as a separate party to the complainant in this proceeding. Positions of the Parties a.

The Commission [ 20 ] The Commission takes the position that counsel for the Commission is permitted to assist a complainant during questioning, including providing advice and objecting to questions, based on the Commission’s “carriage” of the complaint. [ 21 ] Counsel for the Commission relies on the provisions of the Code which assign them “carriage” of the matter.

In Commission counsel’s view, this carriage provides them authority to object to questions asked of the complainant despite acknowledging that he was not acting as counsel for the complainant. [ 22 ] With respect to the refused undertaking, the Commission takes the position the respondents are not entitled to access communications between the Commission and the complainant regarding the preparation of her affidavit of documents as those

communications are subject to litigation privilege and are neither material nor relevant to the matters in issue. [23] Questioning of the respondents’ witnesses has also been completed, but there remain outstanding undertakings.This issue was largely resolved prior to the application being heard as counsel agreed that Dr. van Rooyen and Kathy Potts havecomplied with the undertakings. However, there remains one witness, Crystal Lawrek, who has not yet completed her response to theundertakings. The Commission seeks an order setting a deadline for her compliance. b.

The Respondents [24] The respondents seek a direction requiring the complainant to respond to the proposed undertaking. [25] They take the position that the Commission and the complainant are separate parties in these proceedings andthat counsel for the Commission has no standing to advise the complainant or object to questions asked of the complainant duringquestioning or hearings. [26] The respondents also suggest it is unnecessary to impose a deadline on their witness to comply withundertakings. Issues [27] I would frame the issues as this: 1.

What is the role of counsel for the Commission after a complaint is referred for a hearing? 2. Does counsel for the Commission have standing to object to questions and advise the complainant during questioning? 3. Should the complainant be compelled to respond to the undertaking or the underlying question posed? 4. Should the respondents’ witnesses be ordered to comply with their undertakings? Issue 1: What is the role of counsel for the Commission after a complaint is referred for a hearing? [28] Hearings under the Code are essentially a hybrid between a trial and a judicial review.

They proceed by way ofapplication and typically involve a review of a decision by a respondent that is, in some respects, similar to a judicial review. However, itis also a de novo hearing because new evidence can be filed in the court and the court is required to determine the issue anew.

While TheQueen’s Bench Rules apply, the process does not always fit squarely within those Rules. [29] The central issue in this application is clarifying the role of counsel for the Commission given the Commission’s“carriage” of the complaint following the referral to a hearing, as set out in s. 37 of the Code, which reads: 37(1) The parties to a hearing with respect to a complaint are: (

a) the commission, which shall have carriage of the complaint; (

b) the person named in the complaint as the complainant; (

c) any person, other than the complainant, named in the complaint who is alleged to have been dealt with contrary to this Act or anyother Act administered by the commission; (

d) any person named in the complaint who is alleged to have contravened this Act or any other Act administered by the commission;and (

e) any other person specified by the court, on any notice that the court determines, and after that person has been given an opportunityto be heard against being made a party.

(2) A copy of the complaint must be annexed to the notice of the hearing that is given to any party other than the commission.

(3) A party mentioned in clause (1)(b), (c), (

d) or (

e) may be represented at a hearing by counsel at that party’s expense.

(4) If the court considers it appropriate in the circumstances, and subject to any conditions that the court considers necessary, a partymentioned in clause (1)(b), (c), (

d) or (

e) may appear at a hearing with the assistance of a third party other than counsel. a. The modern approach to statutory

interpretation [30] The modern approach to statutory

interpretation was recently summarized by the Saskatchewan Court of Appealin Regina Bypass Design Builders v Supreme Steel LP, 2021 SKCA 82: [23] The proper approach to any issue of statutory

interpretation is the so-called modern principle articulated in Rizzo & Rizzo ShoesLtd., (Re), (SCC), [1998] 1 SCR 27 [Rizzo Shoes], which “recognizes that statutory

interpretation cannot be founded onthe wording of the legislation alone” (at para 21). The modern principle has been codified in s. 2-10(1) of The Legislation Act [SS 2019,c L-10.2], which reads as follows: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

[24] In s. 2-10(2), The Legislation Act also requires every enactment to be interpreted in a remedial fashion and to be given a “fair,large and liberal

interpretation” that best attains the objects of the statute. [25] The language of the statutory provision in question is always the starting point, but not the end point, of an exercise ininterpretation. As noted in Hess v Thomas Estate, 2019 SKCA 26, 433 DLR (4th) 60 [Hess]: [50] The modern principle and s. 10 demand a contextual and purposive approach. However, that does not mean the court can ignorethe ordinary meaning of the words chosen by the legislature. As noted in Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed,(Markham, Ont: LexisNexis, 2014) at 29 [Sullivan]: ...

interpretation properly begins with the ordinary meaning – with reading words in their grammatical and ordinary sense – but does notstop there. Interpreters are obliged to consider the total context of the words to be interpreted in every case, no matter how plain thosewords may seem upon initial reading. [51] The ordinary meaning prevails unless there is a reason to reject it based on contextual considerations. Such considerations - one ofwhich is the avoidance of absurdities - may result in the adoption of an

interpretation that differs from the ordinary meaning, but only ifthat

interpretation is plausible (Sullivan at 28-29). The plausible meaning rule requires that the

interpretation is one that the words of thetext can reasonably bear (Sullivan at 191). As LeBel J. said in Re: Sound v Motion Picture Theatre Associations of Canada, 2012 SCC38, [2012] 2 SCR 376: “Although statutes may be interpreted purposively, the

interpretation must nevertheless be consistent with thewords chosen by Parliament” (at para 33). [26] In Ballantyne [2015 SKCA 38, 457 Sask R 254], Ryan-Froslie J.A., also citing Ruth Sullivan in Sullivan on the Construction ofStatutes, 6th ed, (Markham, Ont: LexisNexis, 2014) [Sullivan], wrote: [20] ... 2. Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations includingpurpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities tobe avoided and the like. 3. ...the court may adopt an

interpretation that modifies or departs from the ordinary meaning, provided the

interpretation adopted isplausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. [27] The modern principle emphasizes the importance of purposive analysis in statutory

interpretation. All legislation is presumed tohave a purpose which courts should strive to discover and give effect to through the interpretive process. Legislative purpose must betaken into account at every stage of the

interpretation exercise and, so far as the language of the text permits,

interpretations that areconsistent with or promote legislative purpose should be adopted, while those that defeat or undermine legislative purpose should beavoided (Sullivan at §9.3; Farm Credit Canada v Gustafson, 2021 SKCA 38 at para 58). [28] Context must also be taken into account. As Sullivan observes, at §2.19, “in hard cases the contextual factors point in differentdirections” and “[i]n such cases, reading the text harmoniously with the scheme and object of the Act and the intention of the legislaturerequires a balancing act”.

All of this means that in some instances, the plain meaning of the words used will receive greater weight in theanalysis and, in other cases, less. As Sullivan describes, at §2.37: The factors that justify outcomes in statutory

interpretation are multiple, involving inferences about meaning and intention derived fromthe text, non-textual evidence of legislative intent, specialized knowledge, “common sense” and legal norms. These factors interact incomplex ways. It is never enough to say the words made me do it. [31] In Koroluk v KPMG Inc., 2022 SKCA 57, the Saskatchewan Court of Appeal commented on the codification ofthe modern approach to statutory

interpretation in s. 2-10 of The Legislation Act, SS 2019, c L-10.2, whereby the words of a statute mustbe interpreted harmoniously with the statute in which they appear, that is, in a fashion, consistent with the broader statutory scheme. [47] I frame my consideration of these statutory provisions with reference to first principles.

Section 2-10 of The Legislation Act, SS2019, c L-10.2, states as follows: Acts and regulations remedial 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [48]

Section 2-10 codifies the modern approach to statutory

interpretation endorsed by the Supreme Court of Canada in Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 40-41. While the modern approach is often invoked to argue for a broadinterpretation of a statute, a key feature of it is that the words of a statute must be interpreted harmoniously with the statute in which theyappear, that is, in a fashion that is consistent with the broader statutory scheme. [32] To determine the meaning and intention of the Commission’s carriage of the complaint requires the applicationof the modern principle of statutory

interpretation. In Arslan v Şekerbank T.A.Ş., 2016 SKCA 77, 400 DLR (4th) 193, Caldwell J.A.confirmed the following approach on behalf of the Court of Appeal: [59] Under the modern principle, the court first forms an initial impression as to the meaning of a legislative provision from its text(i.e., its “grammatical and ordinary sense”). Then, so as to infer what the Legislature intended to enact, the court will take into account

the purpose of the provision and all relevant context. As this suggests, the latter part of the inquiry involves the contextual determinationof legislative intent. ... [62] As noted, even where the court’s initial impression of a legislative provision is readily arrived at, the court is required to considerthe broader context to read the provision “harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament.” In Atco Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board), 2006 SCC 4 at para 48, [2006] 1 SCR 140,Bastarache J., for the majority, wrote: This Court has stated on numerous occasions that the grammatical and ordinary sense of a

section is not determinative and does notconstitute the end of the inquiry. The Court is obliged to consider the total context of the provisions to be interpreted, no matter howplain the disposition may seem upon initial reading (see Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84,2002 SCC 3, at para. 34; Sullivan, at pp. 20-21). I will therefore proceed to examine the purpose and scheme of the legislation, thelegislative intent and the relevant legal norms. [63] Historically, Canadian courts were distrustful of extrinsic aids to statutory

interpretation. However, under the modern principle ofstatutory

interpretation, courts have become accustomed to reading legislative provisions in their broad context, which now includesextrinsic aids that were formerly considered inadmissible. This is so because such aids are often part of the legal context or they provideevidence of external context. They may also serve as “a source of authoritative opinion about the meaning or purpose of legislation.” Inother respects, extrinsic aids lend to an understanding of the understanding on which the Legislature enacted the provision or statute inquestion. See Sullivan at 656-660. b.

Analysis [33] The role of a human rights commission was discussed by the Ontario Court of Appeal in McKenzie ForestProducts Inc. v Ontario Human Rights Commission (2000), (ON CA), 185 DLR (4th) 257 (Ont CA) [McKenzie],leave to appeal to SCC refused, [2000] 2 SCR xi, where the Ontario Court of Appeal considered similar human rights legislation andcommented: [33] I agree with the appellant that, once the Commission exercises its discretion to refer a complaint to the Board of Inquiry, the roleof the Commission fundamentally changes.

It no longer acts as an investigative and screening body, but becomes a part of theproceeding. At this point, the determination of the complaint then becomes the responsibility of the Board of Inquiry. [34] The Commission does, of course, have a responsibility to advocate its view of the public interest and in so doing, may alsoadvocate for the interests of the individual complainant.

However, the Commission’s role as a party to the proceeding cannot derogatefrom the independent status of an individual complainant. [Emphasis added] [34] The key issue here is what it means for the Commission to have “carriage” of the complaint once it is referred tothe Court for a hearing. [35] Upon receiving a complaint, the Commission has a gatekeeper role in the complaint process and a mandate torepresent the public interest.

However, once the Commissioner exercises their discretion to refer a complaint to the Court of King’sBench for a hearing, the role of the Commission changes from an investigative and screening body to a party to the proceeding. That isclearly reflected in s. 37 of the Code, which I repeat for convenience: 37(1) The parties to a hearing with respect to a complaint are: (

a) the commission, which shall have carriage of the complaint; (

b) the person named in the complaint as the complainant; (

c) any person, other than the complainant, named in the complaint who is alleged to have been dealt with contrary to this Act or anyother Act administered by the commission; (

d) any person named in the complaint who is alleged to have contravened this Act or any other Act administered by the commission;and (

e) any other person specified by the court, on any notice that the court determines, and after that person has been given an opportunityto be heard against being made a party.

(2) A copy of the complaint must be annexed to the notice of the hearing that is given to any party other than the commission.

(3) A party mentioned in clause (1)(b), (c), (

d) or (

e) may be represented at a hearing by counsel at that party’s expense.

(4) If the court considers it appropriate in the circumstances, and subject to any conditions that the court considers necessary, a partymentioned in clause (1)(b), (c), (

d) or (

e) may appear at a hearing with the assistance of a third party other than counsel. [36] Section 37(1)(

a) of the Code states that the Commission shall have “carriage of the complaint.” In a number ofcases, courts have interpreted similar provisions considering the meaning of “carriage” in the context of human rights legislation. Theconsistent determination is that “carriage” relates to procedure and not to substantive rights. Of assistance are the comments of theOntario Court of Appeal from McKenzie on the

interpretation of “carriage” in the context of human rights legislation: [48] The word “carriage” is not defined in the Code. To give it a restrictive and narrow

interpretation would indeed do violence to theoverall scheme of the Code. It is therefore essential to interpret the word "carriage" in a manner that best relates to the statutory context.

[49] I therefore conclude that the proper

interpretation of s. 39(2)(

a) of the Code with respect to the Commission having “carriage ofthe complaint” should relate to procedure and not to substantive rights. I agree with the appellant that the s. 39(2)(

a) provision should beinterpreted as instructing the Board of Inquiry that, as between the Commission and a complainant or complainants, carriage is to beassigned to the Commission. It is therefore my view that the Divisional Court erred in finding that the Board of Inquiry lost itsjurisdiction to continue with the hearing of the complaint when the Commission decided not to participate further in the proceedings. [37] Once a complaint is referred to the Court for adjudication, the role of the Commission in the process hasfundamentally changed.

No longer is the Commission a neutral investigator examining the merits of the complaint to reach a resolution.Once the matter is referred to the Court, the Commission becomes a party to the hearing. It is now an equal party in an adversarialprocess, although tasked with “carriage of the complaint” or procedural responsibilities in seeing that the complaint gets heard. [38] The plain and grammatical meaning of the Commission’s carriage of the complaint reflects proceduralresponsibilities as opposed to substantive rights. [39] However, purpose and context are also relevant.

As Kilback J. recently stated in Desai v North RidgeDevelopment Corp., 2023 SKKB 3: [62] Human rights legislation such as the Code [Saskatchewan Human Rights Code, 2018] must be interpreted so as to advance thebroad policy considerations underlying it. A broad, liberal and purposive approach to

interpretation is appropriate. See: B. v Ontario(Human Rights Commission), 2002 SCC 66 at para 44, [2002] 3 SCR 403 [B. v Ontario]; University of British Columbia v Berg, (SCC), [1993] 2 SCR 353 at 370-371. [40] In 2012, the Code was significantly amended. These changes were debated regularly in the Legislature beforethe amendments came into effect. Counsel for the Commission relies on the discussions held in the Legislature surrounding theamendments to the Code. Hansard contains relevant discussion with respect to the role the Commission plays in relation to acomplainant.

In introducing the amendments to the Code, including eliminating the Human Rights Tribunal and transferring thosepowers and duties to this Court, Minister Don Morgan, who was the Minister of Justice at the time, stated at second reading(Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard), 26th Leg, 4th Sess (30 November 2010) at 6290-91 (Mr.Morgan) [Hansard]): Mr. Speaker, The Saskatchewan Human Rights Code promotes and protects individual dignity and equal rights.

The Code prohibitsdiscrimination based on grounds set out within the Code and includes a bill of rights that makes it illegal to violate another person’sfundamental rights and freedoms. The Code establishes the Saskatchewan Human Rights Commission and a procedure for filing and investigating complaints. The Codealso considers the resolution of complaints or the hearing of complaints if not resolved. The commission has general responsibility forthe Code and for reducing discrimination through research and public education. The commission receives, investigates, and attempts tosettle complaints. ... Mr.

Speaker, this Bill will amend the Code to transfer the powers and duties of the tribunal to the Court of Queen’s Bench and toeliminate the tribunal. The amendments will provide that where the Chief Commissioner determines that a complaint has merit andsettlement efforts are unsuccessful, an application may be made to the Court of Queen’s Bench for a hearing. ... Moving the duties of the tribunal to the court should not impact the accessibility of hearings to members of the public, given the Queen’sBench courthouse locations across the province.

Also the commission will continue to have carriage of all matters that are referred to thecourt for a hearing, and complainants will be represented by the commission’s legal counsel for all court matters up to and including, ifnecessary, the Supreme Court of Canada. [Emphasis added] [41] The discussion contained in Hansard is relevant as an indication of the intention of Legislature with respect tothe nature of the representation of complainants by counsel for the Commission. [42] Counsel for the Commission is not the complainant’s lawyer.

Litigants represent themselves in civil or criminallitigation regularly before the courts. A complainant does not need to be represented by a lawyer. If a party is of the view that theyrequire a lawyer, there are options available to them. [43] The Code of Professional Conduct (Regina: Law Society of Saskatchewan, 2022), sets out a definition of a“client”, which is instructive from the complainant’s viewpoint. 1.1-1 In this Code, unless the context indicates otherwise, ... “client” means a person who: (

a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or (

b) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf; and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work.[Emphasis added]

… [ 44 ] During the questioning, the complainant stated that she was “advised the Commission was acting on [her] behalf” throughout the complaint process.

This raises concerns of a “conflict of interest”, which is also defined in s. 1.1-1 of the Code of Professional Conduct : A “conflict of interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. [ 45 ] In Canadian National Railway Co. v McKercher LLP , 2013 SCC 39 , [2013] 2 SCR 649 , the Supreme Court of Canada comments on the issue of conflict of interest: [23] The law of conflicts is mainly concerned with two types of prejudice: prejudice as a result of the lawyer’s misuse of confidential information obtained from a client; and prejudice arising where the lawyer “soft peddles” his representation of a client in order to serve his own interests, those of another client, or those of a third person.

As regards these concerns, the law distinguishes between former clients and current clients. The lawyer’s main duty to a former client is to refrain from misusing confidential information. With respect to a current client, for whom representation is ongoing, the lawyer must neither misuse confidential information, nor place himself in a situation that jeopardizes effective representation.

I will examine each of these aspects of the conflicts rule in turn. … [25] The second main concern, which arises with respect to current clients, is that the lawyer be an effective representative – that he serve as a zealous advocate for the interests of his client. The lawyer must refrain “from being in a position where it will be systematically unclear whether he performed his fiduciary duty to act in what he perceived to be the best interests” of his client: D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters’ Law of Trusts in Canada (4th ed. 2012), at p. 968.

As the oft-cited Lord Brougham said, “an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client”: Trial of Queen Caroline (1821), by J. Nightingale, vol. II, The Defence,

Part I, at p. 8. [26] Effective representation may be threatened in situations where the lawyer is tempted to prefer other interests over those of his client: the lawyer's own interests, those of a current client, of a former client, or of a third person: Neil [2002 SCC 70 , [2002] 3 SCR 631 ], at para. 31. This appeal concerns the risk to effective representation that arises when a lawyer acts concurrently in different matters for clients whose immediate interests in those matters are directly adverse.

This Court has held that concurrent representation of clients directly adverse in interest attracts a clear prohibition: the bright line rule. [ 46 ] Counsel for the Commission states in their brief: 47. The Commission should be recognized as having the ability to fulfill its long-held role of being an advocate for complainants. [ 47 ] With respect to the role of the Commission and despite the importance of their work, the Commission is not an advocate for an individual complainant and their private interests.

In this case, the complainant has a significant private financial interest in the outcome of the proceeding. The Commission’s focus and responsibility lie in advocating for the public interest, and counsel’s loyalty is to the Commission and the objectives under the Code . While there will inevitably be overlap between the plight of a complainant and the interests of the public, counsel for the Commission cannot slip into advocating for the private interests of the complainant. [ 48 ] What is clear is that the complainant and the Commission are separate parties under the Code .

Concerns arise in this case given the complainant’s understanding that counsel for the Commission is “acting on [her] behalf.” That would carry with it a series of obligations – to the Commission, to the complainant, to the Law Society of Saskatchewan and to opposing counsel. Each lawyer has a duty to avoid conflicting interests. [ 49 ] The precise nature of the relationship between the complainant and counsel for the Commission is important, not only to ensure clarity for the other parties, but also because there are implications for the complainant.

For example, the Code contains an immunity provision at s. 43 : 43 No action or proceeding lies or shall be commenced against the minister, the Government of Saskatchewan, the commission, a member of the commission, an employee or agent of the commission, or an individual mentioned in subsection 28(7) for any loss or damage suffered by a person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by any of them pursuant to or in the exercise or supposed exercise of any power conferred by this Act or in the carrying out or supposed carrying out of any duty imposed by this Act. [ 50 ] Counsel for the Commission is there to protect the Commission’s interests, and the Commission is there to protect the overall interests of society.

But the role of counsel for the complainant is to protect the interests of the individual complainant. [ 51 ] Upon receiving a complaint, the Commission has a gatekeeper role in the complaint process and a mandate to represent the public interest.

However, once the Commissioner exercises their discretion to refer a complaint to the Court of King’s Bench for a hearing, the role of the Commission changes from an investigative and screening body to a party to the proceeding. [ 52 ] While the complainant has distinct rights and interests apart from the Commission, these interests may or may not overlap at certain stages of the proceeding.

That overlap does not mean that these public and private interests will continue to coincide throughout the hearing process. [ 53 ] A complainant must be advised of the limitation of the Commission’s role, particularly at the stage when the process changes from investigatory to adversarial. Only then can a complainant, as an independent party in the hearing process, make an informed decision as to whether they intend to seek their own counsel or proceed as a self-represented litigant.

[ 54 ] While in many cases the interests of the Commission and the complainant run parallel, that may not always be the case. For example, s. 31(2) of the Code provides that the Commissioner must approve all settlement: 31

(2) A complaint shall be considered settled for the purposes of this Act only if the Chief Commissioner has approved the terms of the settlement. [ 55 ] But what if a proposed settlement conflicts with the complainant’s personal interests? Or if the complainant refuses to accept the settlement? What if a complainant is not satisfied with the Commission’s carriage or the legal advice or the interventions of counsel for the Commission?

Does a complainant have recourse against counsel for the Commission with the Law Society of Saskatchewan in the event of a conflict of interest or disagreement with the advice received? These are significant issues which may arise when counsel for one party intervenes on behalf of another party in the same matter. [ 56 ] In this case, the positions of the complainant and the Commission coincide. That is, they coincide to date. But there may well be points where the intentions or interests of a complainant and the Commission diverge.

The Commission takes the position that they are responsible for representing a complainant jointly with their representation of the Commission. That may well become an untenable position at some point in the hearing process. And then, to whom does counsel for the Commission owe their professional loyalty? [ 57 ] The Commission and the complainant are separate parties. While the Commission has “carriage” of the matter, that carriage is procedural and not substantive.

That “carriage” does not give counsel for the Commission authority to step in on the complainant’s behalf on any issue they see fit or to advocate for their private interests without being their legal advocate. [ 58 ] The comments in Hansard reflect an ongoing interest in ensuring complaints which have a societal impact are able to be pursued without financial barrier. The Commission has the authority to carry forward meritorious complaints to ensure human rights are protected and promoted.

But when the process shifts from investigative to adversarial and the Commission becomes a party to the proceeding, there is a clear distinction between counsel for the Commission and counsel for the complainant. They are separate parties in the action. [ 59 ] Since this legislation was amended, the “carriage” of a complaint by the Commission has been considered and refined.

Further, if legal advice is required for a complainant, the legislation provides the Commission with the ability to “engage the services of any legal counsel ... that it considers necessary to assist it in carrying out its responsibilities” ( Code , s 22(2)). [ 60 ] Counsel maintains a responsibility to ensure their obligations are fulfilled under the objectives of the Code .

I do not take the comments raised in Hansard to suggest that the developing jurisprudence and counsel’s professional obligations should be disregarded. [ 61 ] While there may be overlap between the Commission’s view of the public interest and a complainant’s private interest, it cannot be assumed that this will remain the case throughout the proceeding. The complainant may choose not to engage their own counsel; however, they cannot look to counsel for the Commission for legal advice or to intervene on their behalf. [ 62 ] The Commission does not represent the complainant’s private interests.

The Commission’s counsel cannot provide a complainant with legal advice regarding their private interests. Their loyalty remains to the Commission and to the public interest which they serve. [ 63 ] This does not mean that a complainant must remain unrepresented throughout the proceeding. If the Commission is of the view that there is a public interest to be advanced which overlaps or intertwines with the complainant’s private interest, the Commission has the option to engage counsel on her behalf under s. 22 of the Code .

Alternatively, a complainant may be represented by counsel at their own expense pursuant to s. 37(3) or request leave to engage the assistance of a third party at a hearing pursuant to s. 37(4). [ 64 ] To be clear, a complainant may rely on the Commission to advance the complaint procedurally, but they cannot look to them for advice on their substantive rights. Counsel for the Commission does not have the mandate to contemporaneously act as counsel for both parties. [ 65 ] Counsel for the Commission must be cautious in how they represent their role to a complainant.

Counsel for the Commission may present the case in court. A complainant may secure their own lawyer to represent them. If they do not engage their own counsel, they remain a “self-represented litigant” in this process. The assistance of counsel for the Commission is limited to procedural aspects of the hearing and does not venture into a complainant’s substantive rights. Throughout, the Commission’s obligations remain squarely focused on the public interest and, despite any overlap with a complainant’s private interests, counsel for the Commission does not represent an individual complainant. c.

Conclusion [ 66 ] Effectively, until or unless a complainant engages a lawyer to represent them in the hearing process, including questioning, they are a self-represented litigant in the process. [ 67 ] In this case, where the complainant is seeking compensation in excess of $350,000, it would be prudent for her to consider engaging legal counsel to ensure her private interests are protected. Beyond the public interest advanced by the Commission, there is a significant private interest in the outcome of these proceedings.

Without securing independent counsel, either personally or through the Commission, the complainant remains a self-represented litigant in these proceedings as counsel for the Commission does not represent her private interests. [ 68 ] The focus of the Commission is and remains the public interest and, while the public and private interests of these parties may overlap at this point, that cannot be assumed to be the case as the hearing process proceeds. Nor does the overlap of

interests suggest that counsel for one party can intervene or advise a separate party. [ 69 ] The interests of the Commission will not necessarily coincide with those of a complainant, and they are not “on the same team”.

They are independent parties with interests which may or may not align throughout the proceedings. [ 70 ] While the Commission may assist a complainant in the procedural aspects of the process, to allow that assistance to extend into substantive issues would compromise the rights of the complainant and responsibilities of counsel for the Commission, whose obligations remain strictly to the public interest.

Issue 2: Does counsel for the Commission have standing to object to questions and advise the complainant during questioning? [ 71 ] During the questioning, the complainant, on the advice of counsel for the Commission, refused an undertaking on the basis that it is subject to litigation privilege. [ 72 ] Rule 5-27 of The Queen’s Bench Rules provides: 5-27

(1) If a person being questioned objects to any question or questions put to him or her, the official court reporter shall take down: (

a) the question or questions so put; and (

b) the objection of the witness to the question or questions.

(2) The questioning party shall file the questions and objections mentioned in subrule (1) with the local registrar in whose office the proceedings are pending.

(3) On application, the Court shall decide the validity of any objections. [ 73 ] Questioning is in contemplation of a hearing and, by extension, part of the hearing process. Rule 5-27 provides for an objection by the witness of a question put to that witness. It does not extend to allowing other parties to intervene in questions unless it pertains to their rights. [ 74 ] As a party, the Commission has standing to raise objections on their own behalf, during questioning or at a hearing, but these objections must be founded on a legal or evidentiary basis.

Unless the complainant engages counsel on her own behalf or the Commission engages counsel to represent her at questioning, she is a self-represented party. [ 75 ] If there is disagreement at questioning, The Queen’s Bench Rules provide the process under which objections may be raised with the Court for determination of the validity.

Issue 3: Should the complainant be compelled to respond to the undertaking or the underlying question posed? [ 76 ] The respondents seek a direction that the complainant provide a response to the following undertaking posed during questioning: To provide all the particulars of and communications between Ms. Crowe and the Saskatchewan Human Rights Commission regarding how the affidavit of documents was put together. [ 77 ] In response, counsel for the Commission objected to the question and advised the complainant not to answer the related question or to undertake to provide these communications.

In doing so, counsel for the Commission relied on litigation privilege, both on behalf of the complainant and the Commission. [ 78 ] Rule 5-33 provides: 5-33

(1) A person answering questions shall undertake to inform himself or herself and provide an answer, or produce a document, within a reasonable time if, during questioning, the person: (

a) does not know the answer to a question but would have known the answer if the person had reasonably informed himself or herself; or (

b) has under the person’s control a document relevant to any matter in issue that is not privileged . [Emphasis added] [ 79 ] In R v Husky Energy Inc. , 2017 SKQB 383 , Kalmakoff J. (as he then was) explained the concept of litigation privilege: [21] Litigation privilege is a common law rule that gives rise to immunity from disclosure of documents and communications whose dominant purpose is preparation for litigation.

Its purpose is to create a zone of privacy in relation to pending or ongoing litigation: Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 , [2016] 2 SCR 521 [ Lizotte ] . [22] Litigation privilege is distinct from solicitor-client privilege in a number of ways. First, while solicitor-client privilege protects a relationship, litigation privilege protects the efficacy of the adversarial process. Second, solicitor-client privilege is permanent; litigation privilege is time-limited, and expires with the end of the litigation in question.

Third, unlike solicitor-client privilege, litigation privilege applies to unrepresented parties and non-confidential documents: Lizotte , at paras 22-24 ; Blank v Canada (Minister of Justice) , 2006 SCC 39 , [2006] 2 SCR 319 [ Blank ] . Fourth, litigation privilege is to be applied more narrowly, rather than being seen as an equal partner to solicitor-client privilege. A claim of litigation privilege will not be made out simply because litigation support is one of the purposes of a document’s preparation, even if it is a substantial purpose.

Litigation must be the dominant purpose in order for litigation privilege to exist: Blank ; TransAlta Corporation v Market Surveillance Administrator , 2015 ABQB 180 , 613 AR 165 [ TransAlta Corporation ] .

[23] Despite these differences, litigation privilege, like solicitor-client privilege, is a class privilege. Documents which fall into thatclass (i.e. those whose dominant purpose is preparation for litigation) will be protected by immunity from disclosure unless an exceptionapplies. The exceptions to litigation privilege are narrow and clearly defined.

They include those which apply to solicitor-client privilege(i.e. criminal communications, innocence of an accused person, and public safety), as well as circumstances where the communication ordocument in question is evidence of abuse of process or similarly blameworthy conduct on the part of the claimant: Lizotte; Blank. [24] Litigation privilege can also be asserted against third parties, including third party investigators who have a duty ofconfidentiality: Lizotte at para 31. [25] As with solicitor-client privilege, in an application such as this one, the party claiming litigation privilege bears the onus ofproving, on a balance of probabilities, that it applies.

Litigation privilege will apply where the dominant purpose of the creation of thedocument or communication in question is to prepare for litigation, and the litigation in question (or related litigation) is pending or mayreasonably be apprehended: Lizotte at para 33. [26] Like solicitor-client privilege, litigation privilege must be assessed on a document by document basis: Canadian NaturalResources Limited v ShawCor Ltd., 2014 ABCA 289, 376 DLR (4th) 581 [ShawCor].

Where a document has been prepared for mixedpurposes, it is the task of the court to review the document to determine the dominant purpose of its preparation. The nature of thedocument and the timing of its creation are important factors in that determination: Ottawa (City) v Lauzon, 2013 ONSC 2619, as is alitigant’s usual practice or policy of information gathering following an incident. [27] The mere prospect of litigation at the time a document is created is not enough to trigger litigation privilege.

Also, if thedocument in question is prepared in the ordinary course of business, or would have come into existence regardless of the litigation, itdoes not fall under the protection of litigation privilege: TransAlta Corporation; Canada Southern Petroleum Ltd. v Amoco CanadaPetroleum Co. (1995), (AB KB), 35 Alta LR (3d) 42 (Alta QB) [Canada Southern].

Documents which are alwaysproduced, as a matter of policy, in response to a certain type of incident cannot be said to be created for the dominant purpose oflitigation simply because there is, in the particular instance at hand, a reasonable prospect of litigation. [28] There must be sufficient evidence before the court to establish the dominant purpose of the creation of the communication ordocument in question, in order to support a claim of litigation privilege. The evidence must lift the claim's foundation from the general tothe particular: Seely v Corrier, 2009 NBCA 3, 307 DLR (4th) 78.

That said, the evidence provided need only permit the judge hearingthe application to determine whether a prima facie claim of privilege exists. It does not need to be so detailed as to enable the opposingparty to indirectly discover the content of the privileged documents: Brewster v Quayle Agencies Inc., 2008 SKQB 137, 332 Sask R 192. [80] In Blank v Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319, Fish J., writing for the majority,described litigation privilege: [27] Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client.

Itcontemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between thelitigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship.And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, withoutadversarial interference and without fear of premature disclosure. [81] In this case, the purpose of the communications was in the context of pending litigation.

The communicationswere directed toward the preparation of the affidavit of documents and occurred between two parties to the litigation. Thecommunications are protected by litigation privilege. [82] The complainant is not required to respond to the proposed undertaking or the underlying question. Issue 4: Should the respondent’s witnesses be ordered to comply with their undertakings? [83] On December 16, 2021, Crystal Lawrek participated in questioning as the proper officer for SaskPower. Therewere numerous undertakings made, including two under advisement.

At the time of this hearing, those undertakings remainedoutstanding. [84] Rule 5-33, as referenced above, requires an answer within a “reasonable time”. At the time of this hearing,nearly a year had passed. That is sufficient for counsel for the respondent to address the remaining undertakings. [85] Counsel for the respondent shall provide a response to the undertakings, including their position on those takenunder advisement, within 45 days of the date of this decision. Costs [86] Success has been divided. The issues raised in these applications required resolution. I decline to make an orderas to costs. “N.D.

Crooks” J. N.D. CROOKS