Docket: CACV2426 The University of Saskatchewan Appellant - v. -, 2014 SKCA 98

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 98 Date: 2014-09-24 Between: Docket: CACV2426 The University of Saskatchewan Appellant - and - Bonny Jui-Yao Peng Respondent - and - Saskatchewan Human Rights Commission Respondent Coram: Klebuc, Ottenbreit and Whitmore JJ.A. Counsel: David M. Stack for the appellant Gordon D. Hamilton for the respondent (Bonny Jui-Yao Peng) Scott A.

Newell for the respondent (SK Human Rights Commission) Appeal: From: 2013 SKQB 188 Heard: November 28, 2013 Disposition: Appeal granted, set aside Chambers decision, quash the decision of the SK Human Rights Commission Written Reasons: September 24, 2014 By: The Honourable Mr. Justice Klebuc In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Whitmore

Klebuc J.A. I. Introduction [ 1 ] The appellant [University] applied to a Queen’s Bench Judge in Chambers for an order quashing the decision by the Chief Commissioner [Commissioner] of the Saskatchewan Human Rights Commission [Commission] to proceed with an investigation of a human rights complaint made by the respondent, Ms. Peng.

The University submitted that the proposed investigation by the Commission was inconsistent with principles underlying s. 27.1 of the Saskatchewan Human Rights Code , SS 1979, c S-24.1 [ SHR Code ] and the principles articulated in British Columbia Workers’ Compensation Board v Figliola , 2011 SCC 52 , [2011] 3 SCR 422 [ Figliola ] because Ms. Peng’s complaint had previously been considered and rejected by two distinct tribunals. [ 2 ] The learned Chamber judge held that the Commissioner’s decision met the reasonableness standard of review and dismissed the University’s application.

The University appeals from the decision of the Chamber judge. [ 3 ] For the reasons hereinafter set forth, I would grant the appeal by the University, set aside the decision of the Chamber judge, quash the Commissioner’s decision to proceed with an investigation of Ms. Peng’s complaint and award the University its taxable costs. II. Background and Procedural History A. The Complaint and the Discrimination and Harassment Policy Procedure [ 4 ] In 2006, Ms. Peng was employed by the University’s Student Counselling Services as a practicum student.

In September 2009, she was offered and accepted an 18-month term position with the Student Counselling Services Department. Her relationship with her supervisors and co-workers subsequently deteriorated to the extent that in March 2010 she was told her employment would be jeopardized if her performance did not improve. Shortly thereafter, Ms. Peng went on sick leave for the remainder of her term of employment. She attributed her health problems to being mistreated by fellow employees and in discovering that she had been underpaid. [ 5 ] Ms.

Peng was a member of the Administrative and Supervisory Personnel Association [ASPA], which is the bargaining agent for its members pursuant to a collective agreement with the University. After consulting with an ASPA representative and an Occupational Health and Safety Branch officer, Ms. Peng lodged a complaint [first complaint] with the University pursuant to its Discrimination and Harassment Prevention Policy [Harassment Policy].

In the first complaint, she alleged her supervisors and co-workers discriminated against her on the bases of her ancestry, creed, religion, colour, and “source of her professional training.” The University responded by initiating an investigation pursuant to the Harassment Policy, which ASPA and other employees participated in developing. This entailed Dr. David Hannah, Associate Vice-President, Student Affairs, retaining Mr.

Andrew Robertson, QC, an independent lawyer and experienced investigator, based in Calgary, Alberta, to investigate the claims raised in the first complaint. [ 6 ] After interviewing persons who had or might have had information relevant to the claims raised in the first complaint, and reviewing material documentation, Mr. Robertson gave the University a 49-page written report in October 2010 [Robertson Report]. Detailed in the Robertson Report were interviews he conducted with persons potentially involved in the alleged violations and the documents, regulations, and policies he considered. He stated that Ms.

Peng had been paid less than she was entitled and had been treated harshly due to “errors in management” (Robertson Report p. 45) but the totality of the events did not constitute discrimination or harassment within the meaning of the SHR Code. [ 7 ] Dr. Hannah arranged for a

summary version of the Robertson Report to be prepared. It described the steps Mr. Robertson had taken, the names of the individuals he interviewed, and the facts upon which he based his conclusions. Ms. Peng was given a copy of the

summary and was asked to express her views regarding Mr. Robertson’s findings of fact and his conclusion. Her legal counsel provided Dr. Hannah with a response to the

summary wherein Ms. Peng maintained that Mr. Robertson erred in his conclusion by minimizing the actions of her co-workers and the impact their conduct had on her. She did not challenge his findings of fact. Ms. Peng and her counsel were subsequently given the opportunity to review and comment on the entire Robertson Report. They declined to do so. [ 8 ] In December 2010, based on the Robertson Report, Ms. Peng’s response and his inquiries, Dr. Hannah concluded that no discrimination or harassment had occurred as alleged in Ms. Peng’s complaint. He also concluded that Ms.

Peng had received less than the salary she was entitled. The University responded by paying Ms. Peng employment compensation in the amount recommended by Mr. Robertson. B. The Labour Relation Board Grievance [ 9 ] Subsequent to the rejection of the first complaint by the University, Ms. Peng pressed ASPA to grieve her complaint pursuant to its collective agreement with the University. The Union advised Ms. Peng that it would only do so if she identified grounds on which to challenge Mr. Robertson’s assessment or Dr. Hannah’s decision. Ms.

Peng’s response was limited to giving ASPA a copy of the submission she gave to Dr. Hannah. Following a review of the Robertson Report, and Ms. Peng’s submission to Dr. Hannah, ASPA’s legal counsel chose not to lodge a grievance based on the first complaint. [ 10 ] Ms. Peng responded to ASPA’s position by filing a grievance with the Labour Relations Board [the Board] wherein she claimed ASPA had failed to discharge its obligation to her by not filing a grievance with the University based on the first complaint. The Board conducted a hearing during which Ms.

Peng and several of her co-workers and others testified and were cross-examined regarding matters relevant to the grievance: i.e., ASPA’s decision not to file a grievance. Based on the viva voce evidence presented before him and the Robertson Report, the presiding vice-chair of the Board dismissed Ms.

Peng’s grievance and stated the following: [76] While it is not the role of this Board to assess the relative strength or merit of the Applicant’s grievance, the evidence in the proceedings did not, contrary to the Applicant’s suggestion, inescapably lead to the conclusion that the Applicant’s grievance was winnable. In this respect, the facts of this case are relatively simple. …

[77] While the Applicant clearly desired vindication in her belief that she was the victim of harassment and/or discrimination in the workplace, the Union had the right to evaluate not only the potential for success of the Applicant’s grievance, but also the expenditure of the Union’s resources and potential injury to its reputation by prosecuting an arguably weak grievance. With all due respect to the Applicant’s belief that she was wronged by her coworkers, there is a recognized need for finality in all dispute resolution proceedings; something also that the Union has the right to consider.

In my opinion, the Union had the right to come to the conclusion that it did in light of the process that it followed and the factors that it took into consideration. (Appeal Book p. 122–123) C. Second Complaint and the Application by the University [ 11 ] While pursuing her ASPA grievance before the Board, Ms. Peng also lodged a fresh complaint with the Commission pursuant to s. 27 of the SHR Code [second complaint] . The complaint before the Commission read as follows: My place of origin is Taiwan.

I had been employed since 2006 as a Student Counselor by the University of Saskatchewan, Student Counseling Services. During this time period I was subjected to negative differential treatment in this department because of my ancestry and place of origin. For example, in the first two years of employment I was required to work more hours than I was paid for and in September 2009 I was provided only a term position when a permanent position was available. I was told I was on probation after seven months into my term even though there were no probationary periods for term positions.

I was subjected to heightened scrutiny relative to my colleagues, and I was denied certain duties regardless of my experience and qualifications. In a meeting, on or about March 18, 2010, my supervisor listed my proficiency in English as a main concern, and threatened my employment if improvement was not made. In this same meeting, my religious practices were criticized and unfounded complaints were raised. Because of these actions, my health was negatively impacted and my doctor required that I take a medical leave, beginning soon thereafter.

I have reasonable grounds to believe and I do believe that these actions constitute discrimination in employment on the basis of my ancestry, place of origin and religion, contrary to

Section 16 of The Saskatchewan Human Rights Code . (Appeal Book p. 126) [ 12 ] Upon becoming aware of the second complaint, the University asked the Commissioner to dismiss it pursuant to s. 27.1(2) (

d) and (

f) of the SHR Code on the following three grounds: 1) the substance of the second complaint was previously considered and dismissed following an external investigation by Mr. Robertson pursuant to the Harassment Policy and a hearing conducted by the Board; 2) there was no reasonable likelihood of a further investigation revealing evidence of the alleged discrimination or harassment; and 3) the complaints by Ms.

Peng constitute bad faith and undermine the principles of finality articulated in Figliola . [ 13 ] The Commissioner considered the University’s submission and the factors set out in s. 27.1(2) of the SHR Code . Since it was alleged that the substance of the matter before the Commission was previously addressed by another tribunal, the Commissioner also considered the following questions set out by Abella J. in para. 37 of Figliola concerning the concept of finality and jurisdiction: (

a) whether the other tribunal or tribunals have concurrent jurisdiction to decide human rights issues; (

b) whether the legal issue decided by the other tribunal is essentially the same as the one the complainant has raised before the current tribunal; and (

c) whether, in the prior proceeding, the complainant had an opportunity to know the case to be met and an opportunity to meet it, without regard to how closely the earlier process by another tribunal mirrored the process the tribunal prefers or the one it uses. [ 14 ] With respect to the first Figliola question, the Commissioner concluded that the internal investigation and assessment conducted by Dr. Hannah pursuant to the Harassment Policy did not constitute a tribunal or decision making body with authority to resolve human rights issues and, therefore, the findings and assessments by Mr. Robertson and Dr. Hannah did not meet the requirements of s. 27.1(2) (

d) of the SHR Code . The Commissioner provided the following reasons for his view: The University describes the investigation as the “external investigation under OHSA Regime.” It is necessary to assess the nature of the investigation in light of the contents of the OHSA [ The Occupational Health and Safety Act ]. The investigation was conducted under the University’s Harassment Policy. The development of a harassment policy is required by s. 36 of The Occupational Health and Safety Regulations, 1996 (the “ Regulations ”). A worker may request the involvement of an occupational health and safety officer pursuant to s. 36(1) (

g) of the Regulations . The scope of the potential involvement of an occupational health and safety officer is not set out in the OHSA . There is no indication that anyone requested assistance from an occupational health and safety officer in respect of the harassment complaint in this case. As such, the investigation was not an investigation by an occupational health and safety officer under s. 72 of the OHSA .

Section 56.1 of the OHSA sets out an appeal process from the findings of OHSA investigators in harassment investigations. There is no appeal from the findings of an investigation under the University’s Harassment Policy. … The basic procedure for the processing of internal harassment complaints is set out in s. 36 of the Regulations .

Section 36 contains few procedural requirements for employers in their processing of internal harassment complaints. The basic elements of procedural fairness do not appear in s. 36. There is no requirement for an independent investigator. There is no requirement for a hearing. There are no prescribed remedies. There is no right of appeal. It appears that the University has adopted a somewhat more formal procedure than the legislature requires. The evidence indicates that Mr. Robertson was hired externally and possessed specific expertise in harassment investigations.

Nevertheless, the absence of procedural safeguards in s. 36 of the Regulations suggests that the legislature did not intend internal harassment investigators to make decisions which legally bind other tribunals.

… As discussed above, the legislature has encouraged complainants to file internal harassment complaints and human rights complaints simultaneously. Furthermore, many of the traditional elements of procedural fairness are absent from employers’ internal harassment investigations under the Regulations . I find that the legislature did not intend the findings of internal harassment investigators under s. 36 of the Regulations to be legally binding on the Saskatchewan Human Rights Commission. The legislature specifically contemplated that the Saskatchewan Human Rights Commission could conduct a parallel proceeding.

The Saskatchewan Human Rights Commission would be abdicating its duties under s. 25(

a) and (

b) of the Code if it chose to defer human rights decisions to investigators carrying out internal investigations under employers’ harassment policies. The University’s internal investigation does not fulfill the first criterion in Justice Abella’s analysis in Figliola , supra. This is sufficient for me to refuse to exercise my discretion under s. 27.1(2)(

d) of the Code. (Appeal Book p.p. 10–13) [ 15 ] The Commissioner acknowledged the Board had concurrent jurisdiction to decide human rights issues related to matters within its jurisdiction but found the Board did not rule on the merits of the first complaint. [ 16 ] With respect to the second Figliola question, the Commissioner found that Mr. Robertson had previously addressed the issues raised in the second complaint but that the Board had only addressed the fairness of ASPA’s decision-making process and not the propriety of the human rights issues raised in the first complaint.

Based on these findings, the Commissioner held that his proposed investigation of the second complaint would not undermine the finality principles articulated in Figliola or constitute bad faith on the part of Ms. Peng because the substance of the first complaint had not been resolved by a tribunal with concurrent jurisdiction regarding human rights issues. [ 17 ] As for the third Figliola question, the Commissioner was satisfied that Ms. Peng did not know nor ought to have known the case to be met or have an opportunity to meet it.

He provided the following reasons for his conclusion: The harassment investigation did not provide sufficient procedural safeguards to constitute a proper dispute resolution process of the human rights issues in the Complaint. As discussed above, I do not accept that the Complainant selected the internal complaint process over any other process. The Harassment Policy invited the Complainant to file a harassment complaint along with a human rights complaint. The investigator was chosen unilaterally by the employer. It does not appear that evidence was taken under oath.

The Complainant had no ability to cross-examine witnesses or make argument. The Harassment Policy contains no rights of appeal. It is conceivable that the Complainant or her Union could [have] waived procedural safeguards. It appears however, that neither the Complainant, nor her Union, agreed to be bound by Mr. Robertson’s findings. I am not of the view that all of the foregoing procedural safeguards would be required for a dispute resolution process to constitute a “proceeding” under ss. 27.1(1) of the Code .

However, in consideration of the investigation process in its totality, I find that it did not contain sufficient aspects of procedural fairness to constitute a proceeding under ss. 27.1 (1) of the Code . (Appeal Book p.p. A14–A15) [ 18 ] The Commissioner also concluded that s. 36(1) (

j) of the Occupational Health and Safety Regulations , 1996, RRS c O-1.1 Reg 1 [ OHS Regulations ] provides for the simultaneous pursuit of human rights complaints before it and other tribunals or decision-making bodies; therefore, the multiple complaints by Ms. Peng do not establish bad faith on her part. [ 19 ] In sum, the Commissioner concluded that Ms. Peng’s second complaint should not be dismissed pursuant to clause (

d) of s. 27.1(2) of the SHR Code and referred the second complaint to a Commission investigator to consider. That said, I turn to the proceedings before the Queen’s Bench judge in Chambers. D. Queen’s Bench Application and Decision [ 20 ] The University applied under former Queen’s Bench Rule 664 for an order quashing the decision of the Commissioner based on following grounds: (

i) the Commissioner erred in not dismissing the second complaint pursuant to clause (

d) of s. 27.1(2) of the SHR Code on the ground that other statutory regimes permit concurrent jurisdiction over human rights complaints; (ii) the Commissioner erred in holding that Ms.

Peng had no right of appeal under The Occupational Health and Safety Act, 1993 , SS 1993, c O-1.1, (repealed) [ OHSA ] from the proceeding conducted under the Harassment Policy, being a proceeding established pursuant to the OHSA ; (iii) the Commissioner erred by not finding there was no reasonable likelihood of a further investigation producing evidence of discrimination or harassment not considered during the Robertson investigation or the Board hearing; and (iv) the Commissioner’s decision is inconsistent with the Commission’s policy of dismissing complaints solely on the basis of investigations that were similar to the one conducted pursuant to the Harassment Policy. [ 21 ] The Chamber judge dismissed the University’s application and summarized his reason for doing so at para. 53 of his May 16, 2013, fiat ( 2013 SKQB 188 ): [53] The Chief Commissioner’s decision, in which he declined to dismiss Ms.

Peng’s complaint, meets the reasonableness standard of review. The Chief Commissioner articulated his analysis of the issues in a transparent, intelligible manner. His decision not to dismiss Ms. Peng’s complaint fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

Accordingly, there is no basis for interfering with the decision …. III. Jurisdiction and Standard of Review [22] The jurisdiction of this Court to hear the within appeal is to be found in s. 7 of The Court of Appeal Act, 2000, SS 2000, c C-42.1.The standard of review on an appeal from the decision of the reviewing court is one of correctness: see Westfair Foods Ltd. v UnitedFood and Commercial Workers, Local 1400, 2006 SKCA 8, 263 DLR (4th) 397 and Canadian Union of Public Employees, Local 59 vCity of Saskatoon, 2014 SKCA 14 at para 22, 433 Sask R 134.

The standard of review to be applied to the Commissioner’s decision isone of reasonableness, as articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]. IV.

Position of the Parties [23] The University asserts the learned Chamber judge erred in failing to find the Commissioner’s decision unreasonable by virtueof the following: 1) it permits wasteful duplicative screening of human rights complaints contrary to s. 27.1(2) of the SHR Code andFigliola; 2) it facilitates multiple proceedings being brought concerning a human rights complaint notwithstanding multiple proceedingsare not authorized by governing legislation and otherwise are inconsistent with Figliola; and 3) the decision departs from theCommission’s practice of approving decisions and conclusions reached by independent harassment investigators and by the Board. [24] Ms.

Peng maintains the University’s position is flawed in five respects, namely: 1) neither the investigation by Mr. Robertsonnor the subsequent decision by Dr.

Hannah is equivalent to a decision by an administrative tribunal with authority to deal with humanrights issues in the manner articulated in Figliola, especially given that no official Occupational Health and Safety member was involvedin the process; 2) even though the Board is an administrative tribunal with authority to deal with human rights issues falling within thescope of its jurisdiction, it did not conduct a hearing or render a decision regarding the merits of the first complaint; 3) the filing of thefirst complaint pursuant to the Harassment Policy is not equivalent to an election to pursue a remedy under the OHSA; 4) there is noevidence before the Court confirming an established practice by the Commission to accept findings of investigators other than thedecision in Klotz v Sabo, (SK HRT), 2006 CarswellSask 862 (WL) (SHRT) [Klotz]; and 5) the statutory andregulatory provisions underlying this appeal are substantially different than those considered in Figliola and, therefore, the decision inFigliola is not applicable in the instant case. [25] Ms.

Peng further maintains that a significant degree of judicial deference is to be afforded the Commissioner during the earlyscreening stage of a human rights complaint and cites Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012SCC 10, [2012] 1 SCR 364 [Halifax] in support of her submission. V. Analysis [26] That said, I turn to issues arising out of the facts, applicable law and the submissions by the parties: A.

Did the Chamber judge err in finding the Commissioner’s conclusion reasonable that the legislature generally, and s. 36 ofthe OHS Regulations specifically, authorize multiple proceedings concerning the same human rights complaint? B. Did the Chamber judge err by finding the Commissioner’s

interpretation and application of s. 27.1(2)(

d) of the SHR Code tobe reasonable? C. Did the Chamber judge err by finding the Commissioner’s

interpretation and application of s. 27.1(2)(

f) of the SHR Code tobe reasonable? D. Did the Chamber judge apply the correct standard in his review of the Commissioner’s decision? [27] Of particular significance to issues A, B, and C are ss. 27.1(2)(

d) and (

f) of the SHR Code (as amended in July 2011) ands. 36(1) of the OHS Regulations. When the complaint was filed, s. 27.1 of the SHR Code stated the following: Dismissal and Deferral of Complaint 27.1(1) In this

section “proceeding” includes a proceeding authorized by another Act, a civil proceeding or a grievance under acollective agreement.

(2) At any time after a complaint is filed or initiated pursuant to

section 27, the Chief Commissioner may dismiss the complaintwhere he or she is of the opinion that: … (

d) the substance of the complaint has been previously dealt with pursuant to another Act or proceeding; … (

f) there is no reasonable likelihood that an investigation or further investigation will reveal evidence of a contravention of this Act …. [28] Clauses (

d) and (

f) of s. 27.1(2) of the SHR Code are similar to clauses (

c) and (

f) of s. 27(1) of British Columbia’s Human RightsCode, RSBC 1996, c 210 (BC Code), which were interpreted in Figliola. The BC Code provides the following: Dismissal of a complaint 27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint ifthat member or panel determines that any of the following apply:

… (

c) there is no reasonable prospect that the complaint will succeed; … (

f) the substance of the complaint or part of the complaint has been appropriately dealt with in another proceeding …. [ 29 ] Section 36(1) of Saskatchewan’s OHS Regulations reads as follows: Harassment 36(1) An employer, in consultation with the committee, shall develop a policy in writing to prevent harassment that includes: (

a) a definition of harassment that includes the definition in the Act; (

b) a statement that every worker is entitled to employment free of harassment; (

c) a commitment that the employer will make every reasonably practicable effort to ensure that no worker is subjected to harassment; (

d) a commitment that the employer will take corrective action respecting any person under the employer’s direction who subjects any worker to harassment; (

e) an explanation of how complaints of harassment may be brought to the attention of the employer; (

f) a statement that the employer will not disclose the name of a complainant or an alleged harasser or the circumstances related to the complaint to any person except where disclosure is: (

i) necessary for the purposes of investigating the complaint or taking corrective action with respect to the complaint; or (ii) required by law; (

g) a reference to the provisions of the Act respecting harassment and the worker’s right to request the assistance of an occupational health officer to resolve a complaint of harassment; (

h) a reference to the provisions of The Saskatchewan Human Rights Code respecting discriminatory practices and the worker’s right to file a complaint with the Saskatchewan Human Rights Commission; (

i) a description of the procedure that the employer will follow to inform the complainant and the alleged harasser of the results of the investigation; and (

j) a statement that the employer’s harassment policy is not intended to discourage or prevent the complainant from exercising any other legal rights pursuant to any other law.

(2) An employer shall: (

a) implement the policy developed pursuant to subsection (1); and (

b) post a copy of the policy in a conspicuous place that is readily available for reference by workers. [ 30 ] I turn to the first issue. A. Did the Chamber judge err in finding the Commissioner’s conclusion reasonable that the legislature generally, and s. 36 of the OHS Regulations specifically, authorize multiple proceedings concerning the same human rights complaint? [ 31 ] The Commissioner held that s. 36(1)(

j) of the OHS Regulations entitles complainants to seek redress for their human rights complaints by way of multiple proceedings. Therefore, Ms. Peng was entitled to pursue her complaint by way of the proceeding before the Commission, notwithstanding her complaint had been dealt with pursuant to the Harassment Policy.

While I agree that no SHR Code or OHS Regulations provision prohibits complainants from initiating a parallel proceeding based on the same complaint, complainants are not entitled to pursue their complaint by way of a new proceeding pursuant to either the SHR Code or the OHS Regulations if the substance of the complaint was appropriately dealt with by another body within another proceeding.

In Figliola at paras. 26 to 30 , Abella J. discussed the common law doctrines that prohibit serial access to decision-making bodies for the purpose of seeking a more favourable decision and also the limitation imposed by s. 27(1) of the BC Code . [ 32 ] In my opinion, s. 36(1)(

j) of the OHSA does not entitle complainants to pursue their complaint by way of a proceeding pursuant to the SHR Code if the substance of the complaint was appropriately dealt with in another proceeding. It goes no further than requiring harassment policies to contain a provision informing employees that they are entitled to pursue their complaints before bodies other than one constituted pursuant to the harassment policy applied to them. B. Did the Chamber judge err by finding the Commissioner’s

interpretation and application of s. 27.1(2) (

d) of the SHR Code to be reasonable? [ 33 ] The University argued that the Chamber judge made four errors, which render unreasonable his approval of the Commissioner’s decision and

interpretation of the SHR Code . Since the errors referred to by the University are essentially ones made by the Commissioner, I will address them as such, starting with the first two alleged errors:

i) the Commissioner’s failure to dismiss the second

complaint pursuant to s. 27.1(2) (

d) on the basis that the substance of the complaint had been dealt with by way of a proceeding conducted by Mr. Robertson and Dr. Hannah in relation to the first complaint; and ii) the Commissioner’s failure to recognize that the investigation and decisions made by Mr. Robertson and Dr. Hannah pursuant to the OHSA and OHS Regulations fall within the scope of the term “other Act” in s. 27.1(2) (d). [ 34 ] The validity of the University’s submission regarding the first alleged error is dependent on whether the steps taken by Mr. Robertson and Dr.

Hannah constitute a decision by an administrative body with authority to make a firm ruling on the merits of the first human rights complaint. I find no error in the Commissioner’s conclusion that they were not an administrative body with authority to make a binding decision regarding Ms. Peng’s first complaint.

Section 36 of the OHS Regulations , which the University claims vested Mr. Robertson and Dr. Hannah with the required status and authority to make binding rulings on human rights issues, only directs employers to develop and implement harassment prevention policies for the purpose of ensuring that no worker will be subjected to harassment or discrimination in the workplace. To that end, it prescribes minimum requirements for a harassment policy.

Those requirements include a mechanism for employees to report harassment and discrimination events to their employers and an obligation on employers to investigate complaints and to take “corrective action” in the workplace if necessary. [ 35 ] Corrective action in this context could include steps or policies designed to prevent or deal with harassment issues, which might include eliminating issues giving rise to a complaint, educating employees on harassment and discrimination issues, or relocating or disciplining an employee, but not making binding rulings on the merits of a human rights complaint.

It also is of note that a harassment policy need not provide for the appointment of an independent investigator, or impose specific investigative procedures, or authorize the employer or a designated person or body to decide whether the complainant’s human rights were violated. Section 36(1) (

j) of the OHS Regulations only requires a harassment policy to include “a statement that the employer’s harassment policy is not intended to discourage or prevent a complainant from exercising any other legal rights pursuant to any other law.” If proceedings pursuant to harassment policies were intended to constitute a final resolution of a human rights complaint, s. 36(1) (

j) would have been drafted differently. [ 36 ] Furthermore, whenever deemed necessary or appropriate, the OHSA specifically provides for the appointment of an administrative decision-maker with jurisdiction over specific matters: for example, occupational health and safety officers, directors of the occupational health and safety division, chief occupational medical officers, and chief mine inspectors. It contains no provision allowing an employer to appoint a decision-maker with authority to make a binding decision regarding a human rights issue as part of a harassment policy.

The mere imposition of one or more obligations on a party by the OHS Regulations does not make that party a public body: see Knox v Conservative Party of Canada , 2007 ABCA 295 at paras 22 and 26 , 286 DLR (4th) 129 (leave to appeal to S.C.C. refused). [ 37 ] Nor is there a clear void to be filled by reading into the OHSA or the OHS Regulations the role of a decision-maker with administrative decision-making powers as part of a harassment policy.

Although it is not binding, the following statement found in Working Well: Employers’ Guide to Preventing and Stopping Harassment in Saskatchewan Workplaces (Regina: Saskatchewan Ministry of Advanced Education, Employment and Labour, June 2008) is of assistance: No Harassment When an investigation finds that harassment has not taken place and the complaint was made in good faith, both the complainant and the alleged harasser should be informed of the results of the investigation.

The complainant should be advised of the right to seek the assistance of an OHO or to lodge a complaint with The Saskatchewan Human Rights Commission . (p. 16) [ 38 ] In sum, I am satisfied that the Commissioner did not make the first alleged error. I now turn to the second alleged error. [ 39 ] The University argued that s. 27.1(2)(

d) of the SHR Code empowers the Commissioner to dismiss a human rights complaint that was dealt with by a body that is not an administrative tribunal with decision-making authority. It posited that since the definition of “proceeding” in s. 27.1(1) includes “a proceeding authorized by another Act,” the proviso in s. 27.1(2), which provides that the Commissioner may dismiss a complaint if “the substance of the complaint has been previously dealt with pursuant to another Act or proceeding,” includes a proceeding conducted pursuant to its Harassment Policy. The University argued that the Commissioner’s

interpretation of clause (

d) rendered it redundant and the result is inconsistent with the rule of statutory

interpretation, which holds that legislature is presumed not to have enacted a redundant provision. In order to give the whole of s. 27.1(2)(

d) meaning, the University essentially maintained the term “proceeding” is to be interpreted as applying to decisions by administrative tribunals with decision- making authority and the term “other Act” in clause (

d) is to be interpreted as including decisions concerning human rights made by public bodies created or contemplated by another Act notwithstanding such bodies do not have a clearly defined right to make binding human rights decisions. [ 40 ] I reject the University’s submission insofar as it suggests that an investigation and assessment under its Harassment Policy would constitute a proceeding under the OHSA or the SHR Code . Nothing in those Acts vested Mr. Robertson or Dr. Hannah with direct or implicit authority to decide human rights issues.

Furthermore, the proceedings they conducted did not meet the third branch of the test outlined by Abella J. in Figliola , which contemplates the complainant having an opportunity to know the case to be met and an opportunity to meet it. The Commissioner reasonably concluded that the third requirement had not been met. [ 41 ] While the Commissioner completed his analysis of s. 27.1(2)(

d) of the SHR Code based on the Figliola framework, I find his

interpretation and application of clause (

d) is not unreasonable. [ 42 ] I now turn to the third and fourth errors the Commissioner is alleged to have made: iii) the Commissioner’s failure to recognize that Ms. Peng failed to exercise her right of appeal under OHSA , and iv) the Commissioner’s failure to consider the Board’s assessment of Ms. Peng. [ 43 ] The third alleged error is founded on the premise that the Commissioner should have dismissed Ms. Peng’s first complaint because she failed to appeal the decision of Dr. Hannah to an occupational health officer pursuant to the OHSA .

This submission is not sustainable for there is no appeal mechanism under the Harassment Policy that Ms. Peng could have invoked. Only ASPA had a right to appeal Dr. Hannah’s decision by way of a grievance. Moreover, had Ms. Peng presented her complaint pursuant to the OHS Regulations ,

that step would have constituted a new proceeding. Thus there would have been little difference in practical terms between her bringing her complaint before the Commission or under the OHSA . [ 44 ] The University based the alleged fourth error on the Commissioner having failed to recognize the decision of the Board as an assessment of Ms. Peng’s first complaint by an administrative tribunal with authority to deal with human rights issues. This argument also is not sustainable. The issue before the Board was whether ASPA contravened s. 25.1 of The Trade Union Act , RSS 1978, c T-17 by not providing Ms.

Peng with fair representation, and the Board expressly declined to determine the merits of Ms. Peng’s human rights complaint. Consequently, its assessment of the situation had little relevance to the s. 27.1(2)(

d) of the SHR Code finality issue or the reasonableness of the Commissioner’s rejection of the University’s application based on clause (d). [ 45 ] In sum, the answer to all of Issue B is “no,” the Chamber judge did not err. C. Did the Chamber judge err by finding the Commissioner’s

interpretation and application of s. 27.1(2) (

f) of the SHR Code to be reasonable? [ 46 ] The primary purpose of clause (

f) is to avoid delays and potential mental anguish associated with repetitive investigations and hearings regarding a complaint where there is no reasonable likelihood of a further investigation revealing fresh evidence supporting a human rights violation . To evaluate whether there was “no reasonable likelihood that an investigation … [would] reveal evidence of a contravention of” the SHR Code , it fell upon the Commissioner to review prior investigations and assessments of Ms.

Peng’s complaints by third parties and assess whether a further investigation or hearing would constitute an abuse of the decision-making process (for example, see Figliola at para. 34 ). In order to make the assessment required by s. 27.1(2)(f), the Commissioner would reasonably be expected to review and evaluate the following material: the investigation conducted by Mr. Robertson; the findings of fact and assessments set out in the Robertson Report; the submissions Ms. Peng made to Dr. Hannah; any challenge by Ms. Peng of a finding of fact by Mr. Robertson; the assessment by the Board of Ms.

Peng to the extent her complaint was relevant to the grievance before it; any potential fresh evidence Ms. Peng may have volunteered; and the submissions by the parties. [ 47 ] The decision in Klotz is instructive to the extent that a tribunal appointed by the Commission reviewed and upheld the decision of a former Chief Commissioner to dismiss Ms. Klotz’s complaint on the basis that the complaint had previously been dealt with and the Chief Commissioner was satisfied that there was no reasonable likelihood of an investigation revealing evidence of a contravention of the SHR Code .

The situation in Klotz is condensed in the following paragraphs: 58 In the context of the present case, I agree with the conclusions of the Chief Commissioner, that the conduct of Sabo in each of the 4 incidents was inadvisable and unprofessional and made the Complainant uncomfortable. However, on the basis of the facts alleged, it is difficult to come to the conclusion that a reasonable person would find that the comments and actions of Sabo in all of the circumstances were sexual in nature.

In addition since the four incidents occurred over a period of 7 to 8 months, it is difficult to conclude that Sabo’s conduct was repetitive enough or of a sufficient severity to constitute sexual harassment. None of the 4 incidents taken alone or in combination were sufficiently egregious to create a discriminatory workplace.

While it is clear that Sabo’s conduct bothered and greatly impacted the Complainant, it was certainly reasonable for the Chief Commissioner to conclude on the evidence before her, that Sabo’s actions and comments did not create a discriminatory work environment or constituted sexual harassment within the meaning of the Saskatchewan Human Rights Code . 59 One final issue which is clear from the correspondence and documents contained in the record is that the Complainant had other matters that she wished to bring to the investigator’s attention.

In her correspondence of January 20, 2005, the Complainant wrote to the Commission and stated as follows: There are things that I wish to bring to the investigator’s attention. If possible, I would like my file assigned to the same investigator who was looking after Ms.

Genny Rollheiser’s complaint as we worked in the same department and there are some commonalities. 60 In addition, in her request for review of the Chief Commissioner’s decision to dismiss her Complaint, Klotz indicated that there were other incidents involving Sabo that she was aware of involving female staff as well as other inappropriate behaviour on the part of Sabo after her Complaint had been filed. It does not appear that any additional investigations were conducted by the Commission in this respect.

However without being aware of the specifics of such further allegations or incidents, it is difficult for the tribunal to deal with the same. Perhaps a new complaint could be filed with the Commission in respect of such additional allegations and incidents. 61 In the circumstances, I am of the view that the Chief Commissioner’s decision to dismiss the Complaint was reasonable. I therefore decline to order an enquiry pursuant to

Section 29.4(4) of the Code as requested by Gwen Klotz. [ 48 ] The facts in Klotz are similar to those in the instant case to the extent the body that investigated and dismissed Ms. Klotz’s complaint, being the Saskatoon Board of Police Commissioners, based its decision on an investigation conducted by an independent investigator and a comprehensive report by the investigator. The tribunal upheld the Chief Commissioner’s decision to dismiss Ms.

Klotz’s complaint, notwithstanding her position that the investigation by the investigator did not carry the weight of an investigation and determination by the Commission. The Chief Commissioner, in that case, had taken the following factors into account during her assessment of the investigation conducted by an independent external investigator and a comprehensive report provided by the investigator: (

a) Did the outside investigator have the skill and abilities that justify confidence in the investigation? (

b) Did the external investigation have the same purpose as would be the case if the Saskatchewan Human Rights Commission were investigating the complaint? (

c) Was the external investigation conducted according to a proper process? (

d) Was the investigator independent or have a conflict of interest?

(

e) Was the investigation on its face thorough? [49] In the present case, the Commissioner took a markedly different approach than his predecessor to the extent he refused to take intoaccount the Robertson Report when considering whether to dismiss the second complaint pursuant to s. 27.1(2)(

f) and provided thefollowing reasons for his decision: For the Respondents’ arguments under ss. 27.1(2)(

f) to be successful, the Commission would effectively have to adopt the findings in theInvestigation Report [the Robertson Report]. Based on the analysis set out above, I have found that it would not be appropriate for theCommission to adopt those findings on a comprehensive basis. The contents of the Investigation Report should be considered as hearsayfor the purposes of the Commission’s process. (Appeal Book p. 16) [50] The Commissioner had stated earlier that the investigation by Mr. Robertson was inadequate because witnesses were not sworn andMs.

Peng was not given an opportunity to cross examine any of the witnesses. In fairness to the Commissioner, I note that he made thisstatement primarily in relation to the dismissal requested pursuant to s. 27.1(2)(d); but he also applied it to the s. 27.1(2)(

f) application bythe University. [51] In my respectful view, the Chamber judge’s conclusion that the Commissioner was entitled not to dismiss the second complaintbased on the Robertson Report being hearsay is questionable. Although the principle of stare decisis does not apply to tribunals createdpursuant to the SHR Code (see Cooper v Canada (Human Rights Commission), (SCC), [1996] 3 SCR 854 [Cooper]), their decisions are instructive for they were made by persons knowledgeable in human rights issues and related adjudicativeprocedures.

Thus, previous decisions provide guidance on the extent hearsay evidence is acceptable for the purpose of a dismissal unders. 27.1(2)(f). If hearsay evidence in the form of independent investigator reports are considered sufficient for a formal hearing by atribunal created under the SHR Code, it follows that it should be sufficient for the purposes of s. 27.1(2)(

f) where the Commissioner isacting as an administrative screening body. [52] Similarly, if reports by Commission investigators based on interviews and hearsay evidence are accepted by the Commissioner or aCommission tribunal, that practice bears on whether similar reports and hearsay evidence provided by an independent and qualifiedinvestigator should also be accepted, notwithstanding the hearsay principle.

While some degree of inconsistency between the rulings of aCommission tribunal and decisions by administrative personnel may be less consequential, they cannot be so divergent as to underminethe integrity of the administrative and adjudication process.

The same can be said to apply, but to a lesser degree, to divergentinterpretations and applications of the SHR Code by different Chief Commissioners. [53] The SHR Code and The Saskatchewan Human Rights Code Regulations, RRS c S-24.1 Reg 1 do not provide Commissioninvestigators with special investigative powers, such as the right to take sworn evidence from an interviewee.

Consequently,investigations and reports by Commission investigators in many respects would be similar to the investigation conducted by Mr.Robertson and the Robertson Report he produced. [54] In the instant case, the Commissioner applied the stringent legal standard applicable to hearsay evidence tendered before a trialcourt. In my view, the strict rules of evidence employed by courts in civil trials are not applicable to applications made pursuant to s. 27.1of the SHR Code.

A former Chief Commissioner and the tribunal in Klotz applied a lower threshold for the admission of the reportprepared by an independent investigator. The following statement by Abella J. in Figliola regarding the reduced role of “technicalexplications” and “precise doctrinal catechisms” in applications pursuant to the provisions similar to s. 27.1(2)(

d) also is instructive. Atparagraph 36 she said the following: 36 Read as a whole, s. 27(1)(

f) does not codify the actual doctrines or their technical explications, it embraces their underlyingprinciples in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity anddelay.

That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality indecision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them.Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters theythought had been conclusively resolved.

Forum shopping for a different and better result can be dressed up in many attractive adjectives,but fairness is not among them. [55] In my respectful view, it was unreasonable for the Commissioner to refuse to consider the Robertson Report because it mightcontain hearsay and the persons Mr. Robertson interviewed were not sworn to tell the truth. Any reasonable concern the Commissionermay have had regarding Mr.

Robertson’s investigation, the Robertson Report or compliance with natural justice, should have beenreasonably assuaged by the Board’s following observation: [22] … The Applicant testified that she did some research into Mr. Robertson’s background and understood that he was a lawyer,with a good reputation for dealing with complaints like hers. The Applicant testified that she was pleased with all her interactions withMr. Robertson, believing that he understood her concerns regarding what had occurred in the workplace. … [26] … The Investigation Report was some fifty (50) pages in length.

It was detailed and included specific references to individualsand the statements they provided to Mr. Robertson. The Investigation Report contained a comprehensive analysis of each of the meansby which the Applicant claimed that she had been the victim of discrimination and/or harassment, as well as the general circumstances inthe workplace …. [76] … The Applicant’s complaints were investigated by an independent investigator. This person found that the Applicant’s allegationsof both harassment and discrimination were unfounded.

The investigation appears on its face to have been thorough, comprehensive andin compliance with the requirements of natural justice. The investigator appears to have considered and weighed the evidence and hisconclusions appear well-reason ….

(Appeal Book p.p. 102–103, 104, and 122–123) [ 56 ] In sum, I conclude the Chamber judge’s decision that the Commissioner was entitled not to consider the Robertson report is incorrect. In order to meet the requirements of s. 27.1(2) of the SHR Code , it was incumbent on the Commissioner to at least consider and weigh the evidentiary value of the Robertson Report. He did not. Furthermore, the Chamber judge’s decision to uphold the Commissioner’s decision not to dismiss the second complaint, based only on the evidence the Commissioner was prepared to accept, also is incorrect. D.

Did the Chamber judge apply the correct standard in his review of the Commissioner’s decision? [ 57 ] The parties agreed that the standard of reasonableness articulated in Dunsmuir applies in this case but disagree on the level of deference or discretion the Commissioner is entitled. The University maintained that s. 27.1(2) provides the Commissioner with minimum discretion and cites Figliola in support of its submission. Ms.

Peng submitted the Commissioner is entitled a broad discretion and a high degree of deference regarding procedures employed under s. 27.1(2) and relies on Halifax where Cromwell J. at para. 44 stated that “both the nature of the Commission’s role in deciding to move to a board of inquiry and the place of that decision in the Commission’s process are important aspects of that context and must be taken into account in applying the reasonableness standard.” Cromwell J. concluded that the applicable standard provides for due deference to the administrative decision-maker (see para. 42–53). [ 58 ] In this case, I applied the standard of reasonableness articulated in Dunsmuir , where Bastarache and LeBel JJ. stated there are only two standards of review.

The single standard of reasonableness may take on different variations depending on the context in which it arises. As stated in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para 59 , [2009] 1 SCR 399, “reasonableness is a single standard that takes its color from the context.” Chief Justice McLachlin elaborated on this concept in Catalyst Paper Corp. v North Cowichan (District) , 2012 SCC 2 , [2012] 1 SCR 5. [ 59 ] The Court in Figliola unanimously concluded that the Human Rights Tribunal had a limited discretion to decide whether to dismiss a complaint.

I am of the view that the Commissioner’s discretion pursuant to the SHR Code is essentially the same. VI. Conclusion [ 60 ] In sum, I conclude that the Commissioner erred by refusing to consider the Robertson Report on the basis that it contained hearsay when determining whether the second complaint should be dismissed pursuant to s. 27.1(1)(

d) or s. 27.1(1)(

f) of the SHR Code. I also conclude that the Chamber judge incorrectly held the Commissioner was entitled to ignore the Robertson Report on the ground that it contained hearsay. Consequently, I would grant the appeal, set aside the decision of the Chamber judge and the decision by the Commissioner not to dismiss the second complaint. Given my conclusions, the Commissioner’s decision to proceed with an investigation of the second complaint for the purpose of determining whether it warrants a hearing is redundant. [ 61 ] I also would award the University its taxable costs.

DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of September, 2014 . “Klebuc J.A.” Klebuc J.A. I concur “Whitmore J.A.” for Ottenbreit J.A. I concur “Whitmore J.A.” Whitmore J.A.