Lapchuk v Saskatchewan, 2019 SKCA 98

Court of Appeal for Saskatchewan Docket: CACV3146 Citation: Lapchuk v Saskatchewan , 2019 SKCA 98 Date: 2019-10-02 Between: David Brian Lapchuk Appellant (Plaintiff) And The Government of Saskatchewan Respondent (Defendant) Before: Whitmore, Ryan-Froslie and Leurer JJ.A. Disposition: Application to adduce fresh evidence dismissed Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr.

Justice Whitmore The Honourable Madam Justice Ryan-Froslie On Appeal From: QBG 252 of 2017, Regina Appeal Heard: April 2, 2019 Counsel: David Barth for the Appellant Kyle McCreary for the Respondent Leurer J.A. I. Introduction [ 1 ] The Saskatchewan Human Rights Commission [SHRC] may dismiss a complaint made pursuant to The Saskatchewan Human Rights Code , SS 1979, c S-24.1 [ Code ] (since repealed by The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 ) because the substance of it has been dealt with pursuant to another Act or proceeding.

This appeal concerns whether that authority was properly exercised. [ 2 ] This matter finds its genesis in the dismissal from employment of the Appellant, David Brian Lapchuk, by the Respondent, the Government of Saskatchewan [Government]. Mr. Lapchuk unsuccessfully grieved this dismissal under the provisions of the collective bargaining agreement with his employer [ Arbitrator’s Decision ]. Mr. Lapchuk also initiated a complaint under s. 27 of the Code . In an unreported decision, the Chief Commissioner of the SHRC dismissed Mr.

Lapchuk’s complaint ((1 Dec 2016) Saskatoon, RG-13-026 [ SHRC Decision ]) because it had been dealt with in the labour grievance procedure. [ 3 ] Mr. Lapchuk’s application for judicial review of the SHRC Decision was dismissed by a judge of the Court of Queen’s Bench sitting in Chambers in an unreported decision [ Queen’s Bench Decision ]. Mr. Lapchuk now appeals the Queen’s Bench Decision to this Court. In the context of his appeal, Mr. Lapchuk also applies to adduce fresh evidence. [ 4 ] I would dismiss Mr. Lapchuk’s application to adduce fresh evidence and his appeal. My reasons follow. II. Background A. Mr.

Lapchuk’s Employment and Termination [ 5 ] Mr. Lapchuk was a long-time government employee. On October 17, 2012, while performing enforcement duties for the Ministry of Highways and Infrastructure, Mr. Lapchuk was involved in an altercation with a member of the public, referred to in the Arbitrator’s Decision as “Mr. B.”. Mr. Lapchuk suffered injuries in the altercation. Because of these injuries, Mr. Lapchuk was not able to resume full-time work duties until July 2013. In the intervening period, Mr.

Lapchuk underwent medical treatment and received workers’ compensation benefits. [ 6 ] The October 2012 incident gave rise to criminal proceedings against Mr. B. that were later stayed. Mr. Lapchuk became “extremely angry with the outcome of the criminal proceedings” ( Arbitrator’s Decision at para 84) and asserted that the incident “had reactivated PTSD symptoms from the past” (at para 87). In addition, Mr.

Lapchuk suggested that the seriousness of the incident had been exacerbated by the Government’s failure to provide him with self-defence training. [ 7 ] The incident became the subject of a government investigation directed towards determining whether Mr. Lapchuk had “acted in an unprofessional manner in his … interaction with Mr. B.” (at para 83). Mr. Lapchuk engaged in internal email and other communications which his supervisors determined to be unprofessional and otherwise inappropriate. Mr. Lapchuk received warnings to address his conduct. When Mr.

Lapchuk persisted, the Government imposed a three-day suspension without pay for failing to follow specific directions from management.

[ 8 ] Around this time, the Government received the report of the investigators tasked with getting to the bottom of what occurred during the October 2012 incident. Mr. Lapchuk was found to be at fault. Specifically, the investigators concluded Mr. Lapchuk had failed to follow ministry policies and procedures to de-escalate or disengage when in or faced with a conflict situation. They further found that Mr. Lapchuk had created, continued or participated in verbal and/or physical conflict with Mr. B. A meeting was then held between Mr. Lapchuk and management in which Mr.

Lapchuk “was unwilling to accept any responsibility for the incident” (at para 126). [ 9 ] The Government decided to terminate Mr. Lapchuk’s employment. A letter explaining the basis for the termination is dated October 28, 2013. The letter summarizes the Government’s perspective on the October 2012 incident, Mr. Lapchuk’s reaction to it, and the reasons for the termination.

The letter concludes: The violations of professional standards and employer policies and procedures in the on-duty altercation which occurred on October 17, 2012, your reluctance to accept responsibility for your actions and tendency to deflect blame on others as well as the disrespectful behaviour has harmed and compromised your credibility as a peace officer which also has had a detrimental impact on other Highway Traffic Officers working with you. Therefore, in accordance with Section 28(3) of the Public Service Act, 1998 you are dismissed for cause from the Saskatchewan Public Service effective immediately.

B. Grievance proceedings under the collective bargaining agreement [ 10 ] At the time of these events, Mr. Lapchuk was subject to a collective bargaining agreement between the Government and the Saskatchewan Government and General Employees’ Union [union]. The collective bargaining agreement dealt comprehensively with the discipline and termination of union members, including, as is common, by establishing a three-step grievance process culminating in binding arbitration. [ 11 ] The union initiated two separate grievances on behalf of Mr. Lapchuk.

The first related to the three-day suspension and was advanced on the basis that Mr. Lapchuk had not been given the option of having union representation at the meeting where the discipline was imposed and on the further ground that the suspension was excessive. The second grievance related to Mr. Lapchuk’s termination and alleged that the termination was “without just cause, with malice”. [ 12 ] The grievances were denied at both the first and second steps of the grievance process, leading to a hearing before a single arbitrator.

The hearing, which related to both grievances, took place over several months and included evidence being presented over the course of five days. Lengthy written arguments were filed and another day was occupied by oral submissions. [ 13 ] The 50-page Arbitrator’s Decision , dismissing the grievances, was handed down on August 31, 2016 . C. Other collateral proceedings [ 14 ] While all of this was going on, Mr. Lapchuk also pursued other avenues to challenge the termination of his employment. [ 15 ] Mr. Lapchuk commenced a civil action.

The Government, various government employees, as well as his union and the union’s former representative were named as defendants. The Government and union applied separately to strike Mr. Lapchuk’s statement of claim. The result was two judgments of the Court of Queen’s Bench, which cumulatively had the effect of dismissing Mr. Lapchuk’s civil claim: Lapchuk v Saskatchewan , 2015 SKQB 358 , 468 Sask R 170, and Lapchuk v Saskatchewan , 2016 SKQB 72 , 93 CPC (7th) 209. Mr. Lapchuk’s appeal from these judgments was dismissed by this Court: Lapchuk v Saskatchewan (Highways) , 2017 SKCA 68 .

The substance of these decisions was that Mr. Lapchuk’s various complaints raised issues that had been properly addressed in the context either of the arbitration grievance process or proceedings before the Saskatchewan Labour Relations Board [Labour Relations Board]. [ 16 ] Additionally, Mr.

Lapchuk initiated a complaint that his termination was a discriminatory action, contrary to s. 27 of The Occupational Health and Safety Act, 1993 , SS 1993, c O-1.1 (since repealed and replaced by The Saskatchewan Employment Act , SS 2013, c S-15.1 ) which prohibits an employer from taking discriminatory action against a worker because the worker sought enforcement of that Act or regulations. This complaint was also dismissed. [ 17 ] Mr.

Lapchuk applied to the Labour Relations Board claiming that the union had breached its duty of fair representation in connection with the presentation of his grievance arbitration. This application was in addition to an earlier one Mr. Lapchuk had filed against the union in 2011 and was outstanding at the time this appeal was heard. [ 18 ] Finally, and most material to the present appeal, Mr. Lapchuk laid a complaint with the SHRC alleging discrimination under the Code . I address this complaint in greater detail in the next

section of this judgment. D. Proceedings before the SHRC and the SHRC Decision [ 19 ] Mr. Lapchuk completed a SHRC intake questionnaire on August 1, 2013, prior to the termination of his employment. He supplemented that information in later communications with the SHRC. The complaint was formalized by Mr. Lapchuk on March 11, 2014. [ 20 ] On June 26, 2014, the Chief Commissioner exercised his discretion, pursuant to s. 27.1(3) of the Code , to hold proceedings respecting Mr.

Lapchuk’s human rights complaint in abeyance pending the outcome of the grievance arbitration, the civil action, and the other proceedings. [ 21 ] Shortly after the delivery of the Arbitrator’s Decision on August 31, 2016, the SHRC invited submissions from the parties as to the effect of that decision on proceedings before it.

[ 22 ] In response, the Government made an application to the Chief Commissioner for

summary dismissal of Mr. Lapchuk’s human rights complaint. The Government grounded its application on several provisions of the Code . Most material to the present appeal is s. 27.1(2) (

d) of the Code (now s. 30(2) (d)), which gives the Chief Commissioner the authority to “defer further action if another proceeding, in the opinion of the Chief Commissioner, is more appropriate having regard to the nature of the allegations and the remedies available in the other proceeding”. [ 23 ] In the SHRC Decision , dated December 1, 2016, the Chief Commissioner granted the Government’s application and held that “the substance of both the termination and accommodation aspects of the complaint have been appropriately dealt with pursuant to another Act or proceeding” (at para 5). [ 24 ] The Chief Commissioner oriented his decision by considering three questions, which he derived from British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 , [2011] 3 SCR 422 [ Figliola ] , and Hebron v University of Saskatchewan , 2015 SKCA 91 , 465 Sask R 161 [ Hebron ] .

The questions were: (i) “Does the grievance arbitrator have concurrent jurisdiction to decide human rights issues?”; (ii) “Is the previously decided legal issue essentially the same as that complained of before the SHRC?”; and (iii) “Did the Grievance Arbitrator process provide an opportunity for the Complainant to know the case to be met and have the chance to meet it ?”. In its concluding paragraph, the SHRC Decision reads: Based on my findings on the evidence, I have decided to dismiss the complaint under

section 27.1(2) (

d) of the Code . The Respondent’s application for

summary dismissal is therefore granted. E. The Queen’s Bench Decision [ 25 ] Mr. Lapchuk applied for judicial review of the SHRC Decision , requesting orders: (

i) for judicial review; and (ii) “under [s.] 24(1) of the Charter of Rights and Freedoms for a declaration that [his] rights under [s.] 7 of the Charter were breached by the discriminatory treatment to which he was subject”. [ 26 ] The Chambers judge held there were two standards applicable to his review of the SHRC Decision . First, he held that the “standard of review as to whether the SHRC and the arbitrator had concurrent jurisdiction is correctness” ( Queen’s Bench Decision at para 8).

Second, the Chambers judge held that the “remainder of the Chief Commissioner’s decision is reviewable on the standard of reasonableness” (at para 9). In respect to the question of jurisdiction, the Chambers judge held that the Chief Commissioner “did not make a mistake and was correct in deciding that the arbitrator shared concurrent jurisdiction with the SHRC” (at para 14).

The Chambers judge concluded that the Chief Commissioner’s determinations on the remaining two questions in the Figliola analysis (whether the legal issue decided in the arbitration was “essentially the same” as that raised in the human rights complaint and whether the arbitration process provided Mr.

Lapchuk with an opportunity to know the case to be met and the chance to meet it ) were reasonable. [ 27 ] The Chambers judge held that the claim for Charter relief had not been raised “in first instance” and on that basis he would not entertain the Charter arguments in the context of the application before him (at para 31). [ 28 ] Finally, the Chambers judge rejected as “irrelevant and inapplicable” to his judicial review an amendment to The Workers’ Compensation Act, 1979 , SS 1979, c W 17.1 [ WCB Act ], enacted subsequent to the Arbitrator’s Decision and not referred to in the SHRC Decision (at para 34). F.

Parties’ Positions [ 29 ] Mr. Lapchuk submits that the Chief Commissioner, and then the Chambers judge in his review of the SHRC Decision , erred in the application of the framework established in Figliola and Hebron . Mr. Lapchuk’s arguments fall under three broad groupings. (Mr. Lapchuk did not pursue the Charter arguments in his appeal to this Court.) [ 30 ] First, Mr. Lapchuk argues that there “could have been concurrent jurisdiction” between the SHRC and the grievance arbitrator, but the arbitrator declined to consider the human rights dimension of the case. Building from this submission, Mr.

Lapchuk says that the issues he intends to raise in his human rights complaint are not substantially the same as the issues that were raised in the arbitration. [ 31 ] Second, Mr. Lapchuk argues that he did not get a fair hearing at the arbitration. Mr. Lapchuk raises many complaints relating to the grievance arbitration process, including that he was not fairly represented by the union. As a result, Mr. Lapchuk says that the third part of the Figliola/ Hebron test is not met. Mr. Lapchuk’s application to adduce fresh evidence relates to this submission. Directly related to Mr.

Lapchuk’s arguments under this category is his submission that the Chief Commissioner and the Chambers judge both incorrectly identified the standard of review to be applied when examining the fairness of the arbitration process. [ 32 ] Finally, Mr. Lapchuk argues that the Chief Commissioner and the Chambers judge both erred in law by ignoring s. 28.1 of the WCB Act , which (it is alleged) creates a reverse onus that works in Mr. Lapchuk’s favour. [ 33 ] The Government takes the position that the Chambers judge correctly determined the standards applicable to a review of the SHRC Decision .

The Government says that the Chief Commissioner was correct in determining that the grievance arbitrator and the SHRC enjoyed concurrent jurisdiction, and that he reached reasonable decisions when he concluded that the legal issues decided in the arbitration were “essentially the same” as those raised in the human rights complaint and that the arbitration process had provided Mr. Lapchuk with an opportunity to know the case to be met and the chance to meet it. III. Issues [ 34 ] This is an appeal from a judicial review of a discretionary decision made by an administrative tribunal.

It assists in the identification of the issues in this appeal to understand this Court’s role and the associated standard of review in these circumstances.

[ 35 ] The role of this Court is “to determine whether the reviewing judge had chosen and applied the correct standard of review”: Dr. Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 43 , [2003] 1 SCR 226 [ Dr. Q ]. If the reviewing judge is determined to have applied an incorrect standard of review, this Court is to “assess the administrative body’s decision in light of the correct standard of review” ( Dr.

Q at para 43 ). “If the reviewing judge has chosen the correct standard, this Court must ensure the reviewing judge correctly applied that standard of review”: Agrium Vanscoy Potash Operations v United Steel Workers Local 7552 , 2018 SKCA 50 at para 3 , 51 Admin LR (6th) 26. Stated succinctly, the general compound question raised in an appeal of this nature is: “Did the [Chambers] judge choose the correct standard of review and apply it properly?”: Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at para 47 , [2013] 2 SCR 599.

In the context of this appeal, this compound question requires this Court to: (

a) identify the standard that is applicable to each decision made by the Chief Commissioner; and (

b) ensure that each decision was correctly reviewed by the Chambers judge. [ 36 ] It further assists in the identification of the specific issues in this appeal that the parties agree that the Figliola/Hebron framework, used by the Chief Commissioner to orient his decision, is applicable to the determination of whether Mr. Lapchuk should have been allowed to pursue his human rights complaint. [ 37 ] Against this background, I would frame the issues in this appeal as follows: (

a) Did the Chambers judge correctly identify and apply the standard of review applicable to the Chief Commissioner’s determination that the SHRC and the arbitrator enjoyed concurrent jurisdiction to decide Mr. Lapchuk’s human rights complaint? (

b) Did the Chambers judge correctly identify and apply the standard of review applicable to the Chief Commissioner’s determination that the complaint before the SHRC was “essentially the same” as that determined in the grievance arbitration ? (

c) Did the Chambers judge correctly identify and apply the standard of review applicable to the Chief Commissioner’s determination that the grievance arbitration provided an opportunity for Mr. Lapchuk to know the case to be met and have a chance to meet it? (

d) Did the Chambers judge err by not finding error by the Chief Commissioner for ignoring s. 28.1 of the WCB Act ? [ 38 ] In the course of dealing with these questions, it is also necessary to consider Mr. Lapchuk’s application to admit fresh evidence on this appeal. IV. Analysis A. Did the Chambers judge correctly identify and apply the standard of review applicable to the Chief Commissioner’s determination that the SHRC and the arbitrator enjoyed concurrent jurisdiction to decide Mr. Lapchuk’s human rights complaint? [ 39 ] The Chief Commissioner’s authority to dismiss Mr. Lapchuk’s claim was derived from s. 27.1(2) (

d) of the Code , which provided in relevant parts as follows:

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

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

d) the substance of the complaint has been appropriately dealt with pursuant to another Act or proceeding; … [ 40 ] In Figliola , complainants with work-related chronic pain alleged that policies of the British Columbia Workers’ Compensation Board contravened that province’s Human Rights Code . A reviewing officer held that there was no human rights violation. Instead of seeking judicial review of that decision, the complainants initiated a complaint with B.C.’s Human Rights Tribunal. In the context of a statutory provision that paralleled s. 27.1(2) (

d) of the Code , the Supreme Court of Canada held that B.C.’s Human Rights Tribunal should have refused to hear the complaint because its substance had been appropriately dealt with in the workers’ compensation proceedings.

Justice Abella, for the Court, established the framework for analyzing when a “second-in-time” tribunal should decline jurisdiction in these circumstances: [37] Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribun al; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.

All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute. [ 41 ] Hebron arose out of a decision of the Chief Commissioner of the SHRC to proceed with a complaint alleging a Code violation that had been the substantive basis for a previous decision made by a University of Saskatchewan appeals board.

The Chief Commissioner had concluded that the jurisdiction of the university board was not concurrent with that of the SHRC. This decision was quashed by a judge of the Court of Queen’s Bench who also stayed all further SHRC processes with respect to Mr. Hebron’s complaint. The decision of the Court of Queen’s Bench was upheld on appeal. Justice Caldwell, for this Court, summarized the Figliola framework as follows:

[41] … the Court’s dicta in Figliola directs any tribunal that is set to hear a second-in-time complaint to determine: (

i) whether there is concurrent jurisdiction between the first-in-time tribunal and the second-in-time tribunal; (ii) whether the first-in-time complaint is substantially similar to the second-in-time complaint; and (iii) whether natural justice was afforded to the parties in the first-in-time complaint process. [ 42 ] As I have mentioned, the Chief Commissioner applied this framework in the SHRC Decision . At the first step, the Chief Commissioner held that the SHRC and the grievance arbitrator had concurrent jurisdiction over Mr. Lapchuk’s complaint. He reasoned as follows: 10.

The Arbitration Chair has the authority to decide the issues, as derived from The Saskatchewan Employment Act, SS 1013, c. S-15.1.

Section 6-45(1) of The Saskatchewan Employment Act provides that: 6-45

(1) Subject to subsections (2) and (3), all disputes between the parties to a collective agreement or persons bound by the collective agreement or on whose behalf the collective agreement was entered into respecting its meaning, application or alleged contravention, including a question as to whether a matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective agreement. … 11. Further, in United Food and Commercial Workers, Local 1400 v.

Westfair Foods Ltd. , 2002 SKQB 154 , an arbitrator had concurrent jurisdiction to address a matter that could have been advanced under the Code . 12. The Commission and the arbitrator have concurrent jurisdiction over the complaint in this case. The arbitration decision constitutes a “proceeding authorized by another Act” pursuant

section 27.1(1) of the Code . Therefore, the grievance arbitration process fulfils the first criterion in Justice Abella’s analysis in Figliola , supra. [ 43 ] The Chambers judge concluded that the Chief Commissioner’s decision that there was concurrent jurisdiction was correct: [12] The Chief Commissioner’s decision is supported by the authorities. In Hebron , Caldwell J.A. found that the Code may be interpreted as a statute of general application and stated: 49. To start, the SHRC does not hold exclusive jurisdiction over matters of human rights.

As the chambers judge correctly noted, this point was settled in Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 at para 39 , [2006] 1 SCR 513 [ Tranchemontagne ] , where Bastarache J. said a human rights commission is not “the exclusive guardian or the gatekeeper for human rights law” (see also Figliola , at para. 45 ). We interpret our Human Rights Code as a statute of general application.

While the SHRC is the chief expert in the field, other tribunals, arbitrators, and courts may legitimately pass upon matters of human rights that arise within their own spheres of jurisdiction. [13] I agree with counsel for the respondent when she writes: 27. Arbitrator Denysiuk was charged with determining whether the termination was just under the circumstances. She was making this decision, not in a vacuum, but within the existing labour relations framework relevant to the case before her.

That framework included a collective bargaining agreement (the “CBA”) between the employer and SGEU, an agreement that applied to the Applicant as an in-scope employee. The CBA confirms the Arbitrator’s jurisdiction to address matters involving allegations of discrimination. The CBA deals comprehensively with the discipline and termination of union members, and that comprehensive manner of addressing employee’s circumstances is confirmed by

Article 26, a provision prohibiting discrimination with respect to employees as follows:

Article 26 DISCRIMINATION AND HARASSMENT

A) The following does not limit access to rights or provisions under The Occupational Health and Safety Act or The Saskatchewan Human Rights Code . 26.1 Discrimination

A) There shall be no discrimination or harassment with respect to any employee by reason of age, race, physical disability, creed, colour, national ancestry, place of residence, religious or political affiliation, sex or sexual orientation, marital status, criminal record that has no relevance to the duties of the employee’s position, nor by reason of membership or activity in the Union. [Brief of the respondent] [14] I find that the Chief Commissioner did not make a mistake and was correct in deciding that the arbitrator shared concurrent jurisdiction with the SHRC. [ 44 ] The parties agree that the Chambers judge correctly identified that he should review this aspect of the SHRC Decision (i.e., that the SHRC and the arbitrator enjoyed concurrent jurisdiction) on a standard of correctness.

Accordingly, it is this Court’s task, in keeping with Dr. Q. , to determine if the Chambers judge correctly applied that standard of review. [ 45 ] The Code itself contemplates that human rights issues may be dealt with in grievance arbitrations.

In this regard, s. 27.1 (now s. 30) of the Code confers jurisdiction on the Chief Commissioner to dismiss a complaint, if in his or her opinion the substance of the complaint has been “appropriately” dealt with pursuant to another “proceeding” and defines “proceeding” as including “a grievance under a collective agreement”. [ 46 ] In Parry Sound (District) Social Services Administration Board v O.P.S.E.U . , Local 324 , 2003 SCC 42 at para 23 , [2003] 2 SCR 157, the Supreme Court of Canada confirmed that the substantive rights and obligations of provincial human rights codes are incorporated into each collective agreement over which an arbitrator has jurisdiction.

See also Tranchemontagne v Ontario (Director,

Disability Support Program) , 2006 SCC 14 at para 39 , [2006] 1 SCR 513 , and Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron , 2018 SCC 3 at para 110 , [2018] 1 SCR 35 . More generally, even outside the area of labour relations, “tribunals other than human rights commissions have rightly assumed that absent legislative intent to the contrary, they have concurrent jurisdiction to apply human rights legislation” ( Figliola at para 21 ; see also Hebron at para 21 ). [ 47 ] Mr.

Lapchuk does not dispute that, in theory, both the grievance arbitrator and the SHRC had jurisdiction with respect to his complaints. Instead, Mr. Lapchuk argues that the arbitrator “declined to accept jurisdiction for the Human Rights Complaint”. Mr. Lapchuk refers to paragraphs 5–7 of the Arbitrator’s Decision , where the grievance arbitrator stated: 5. The Union grieved the termination on the basis that it was without just cause.

The Union argues that the Employer failed to provide Lapchuk with the proper training to participate in the enforcement blitz which contributed to the incident leading to the termination. Alternatively, the Union submits that the Employer failed to consider the required mitigating factors, and in particular, that Lapchuk suffered from a psychological disability, namely PTSD, which should have been considered by the Employer in determining and assessing the penalty. 6. The Employer’s position is that Lapchuk committed serious acts of misconduct justifying the suspension and termination.

The Employer submits that there is no evidence that Lapchuk was suffering from PTSD when the Fort Qu’Appelle incident happened and, even if he was, there is no evidence linking the disability to the misconduct. Alternatively, if termination is seen as an excessive response, the Employer submits that reinstatement isn’t appropriate because the employment relationship is no longer viable. 7. I was appointed as sole arbitrator to deal with both grievances. The hearing took place in Regina over four days in September and one day in November 2015.

Oral submissions followed at a later date. [ 48 ] The point I understand Mr. Lapchuk to be making is that, for the Chief Commissioner to invoke s. 27.1(2)(d), the Chief Commissioner must conclude that the arbitrator was determining the arbitration grievance as if it were a complaint under the Code itself. This submission misses the mark as to this stage of the Figliola analysis. The question at step one—which the Chief Commissioner asked and answered—is whether both the grievance arbitrator and the SHRC had jurisdiction in respect to “the substance of the complaint” (s. 27.1(2)(d), emphasis added). Mr.

Lapchuk does not contend that the grievance notice was not broad enough to raise his human rights complaint. Instead, his argument is that jurisdiction to do so existed but was declined by the grievance arbitrator. With respect, this argument is properly considered in the second step of the Figliola analysis, which I turn to in the next

section of this judgment. [ 49 ] For these reasons, in my respectful view, the Chambers judge was correct in confirming the correctness of the SHRC Decision that the grievance arbitrator and the SHRC had concurrent jurisdiction to decide Mr. Lapchuk’s human rights complaint. B.

Did the Chambers judge correctly identify and apply the standard of review applicable to the Chief Commissioner’s determination that the complaint before the SHRC was “essentially the same” as that determined in the grievance arbitration? [ 50 ] The second step in the Figliola analysis is “whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal” ( Figliola at para 37 ). In accordance with Dr. Q. , the relevant questions for this Court are: (

i) whether the Chambers judge was correct that the applicable standard of review relating to this step in the Figliola analysis is reasonableness; and (ii) whether the Chambers judge correctly applied that standard of review. 1.

The applicable standard of review [ 51 ] The Chambers judge held that, outside of the question as to whether the SHRC and the grievance arbitrator had concurrent jurisdiction, the standard of review with respect to all other aspects of the SHRC Decision was reasonableness: [9] The remainder of the Chief Commissioner’s decision is reviewable on the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53 , [2008] 1 SCR 190 [ Dunsmuir ] ; University of Saskatchewan v Peng, 2014 SKCA 98 at para 22 , 446 Sask R 50; Chan v Canada (Attorney General), 2010 FC 1232 , 379 FTR 117). [10] Further, the Federal Court’s comment in Panacci v Canada (Attorney General), 2014 FC 368 , 452 FTR 302 [ Panacci ] is apropos: 14.

A standard of review analysis need not be conducted in every instance. Where the standard of review applicable to a particular issue before the Court is well-settled by past jurisprudence the reviewing Court may accept that standard of review ( Dunsmuir , above, at para 62 ). Jurisprudence has held that the appropriate standard of review with respect to decisions by the Commission, pursuant to subsection 41(1) of the CHRA , not to deal with a complaint is reasonableness (Chan, above; English-Baker, above at para 13; Lawrence, above, at para 18).

This standard applies to both the decision making process and the result ( Dunsmuir , above, at para 47 ). Such a review must concern itself with the existence of justification, transparency and intelligibility within the decision making process and with whether the decision falls within a range of possible, acceptable outcomes defensible on the facts and the law ( Dunsmuir , above, at para 47 ). [ 52 ] It is unclear from Mr.

Lapchuk’s submissions whether he challenges the correctness of the Chambers judge’s determination to review the Chief Commissioner’s decision on the second step of the Figliola analysis on a reasonableness standard. For this reason, I will address that point first. [ 53 ] Dunsmuir v New Brunswick , 2008 SCC 9 at para 53 , [2008] 1 SCR 190 [ Dunsmuir ], describes how a court should go about identifying the appropriate standard of review: [62] … the process of judicial review involves two steps.

First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry

proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [54] Dunsmuir has, of course, been clarified through such cases as Edmonton (City) v Edmonton East (Capilano) Shopping CentresLtd., 2016 SCC 47, [2016] 2 SCR 293, and, in this Court, Gary L. Redhead Holdings Ltd. v Swift Current (Rural Municipality), 2017SKCA 47, 415 DLR (4th) 218.

However, as I will explain, I am able to determine the issues in this appeal without referring to subsequentrefinement to the basic framework as established in Dunsmuir. [55] In Hebron, the parties had agreed that reasonableness was the correct standard of review applicable to the second step in theFigliola analysis, and therefore the Court proceeded on the assumption that this was the applicable standard without deciding the issue (atpara 57). The point came up more directly in University of Saskatchewan v Peng, 2014 SKCA 98, 466 Sask R 50 [Peng].

Peng involvedan appeal from a decision of the Court of Queen’s Bench refusing to quash a decision of the Chief Commissioner of the SHRC decliningto dismiss a human rights complaint on grounds that included that the substance of it had been appropriately dealt with in a labourrelations board grievance. Justice Klebuc (as he then was) held that the “standard of review to be applied to the Commissioner’s decisionis one of reasonableness, as articulated in Dunsmuir” (at para 22). While the analysis in Peng was brief, in my view, this Court determinedthe applicable standard of review for such a decision.

As a result, I would conclude that the jurisprudence has already determined thestandard of review applicable to this question. In any event, the factors identified in Dunsmuir for identifying the proper standard ofreview point heavily to the decision of the Chief Commissioner on this point being subject to review on a reasonableness standard. [56] “Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, withwhich it will have particular familiarity” (Dunsmuir at para 54).

The Supreme Court in Dunsmuir reviewed a number of other factors thatgenerally point to one standard of review or another, and then summarized the factors that are relevant to whether the reasonablenessstandard is appropriate: [55] A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and areasonableness test applied: • A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. • A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). • The nature of the question of law.

A question of law that is of “central importance to the legal system ... and outside the ... specializedarea of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., Local 79, atpara. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where thetwo above factors so indicate. [57] I would make three additional points in relation to the situation at hand.

First, although there is no privative clause, thejurisdiction to dismiss the human rights complaint is found in the Chief Commissioner’s “home” statute. Second, the question as towhether a first-in-time complaint is substantially the same as a second-in-time human rights complaint fits neatly within the discrete andspecial administrative regime created by the Code. Specifically, the Chief Commissioner is well-suited to assess whether the substance ofthe human rights complaint before the SHRC has been dealt with in another forum. Third, the decision to dismiss a complaint pursuant tos. 27.1(2)(

d) is discretionary—it may be made if the Chief Commissioner is of the “opinion” that the substance of the complaint has beenotherwise appropriately dealt with. As stated in Dunsmuir, “[w]here the question is one of fact, discretion or policy, deference will usuallyapply automatically” (at para 53, emphasis added).

I will briefly expand on the last of these points. [58] In Figliola, Abella J. described the discretion in this situation “as being limited, based not only on the language of s. 27(1)(f)[the equivalent of s. 27.1(2)(d)], but also on the character of the other six categories of complaints in s. 27(1) in whose company it findsitself” (at para 39). Nonetheless, Figliola does not suggest a correctness standard applies to a review of this determination.

Here, theChief Commissioner, familiar with the Code, was well-situated to assess if the issue determined by the grievance arbitrator wassubstantively the same issue as that raised in the human rights complaint. While this determination involved more than an

interpretation ofthe Chief Commissioner’s “home” statute, since he was required to consider not only the substance of the human rights complaint butcompare the substance of that complaint to the first-in-time decision, ultimately the exercise fell comfortably within a subject categorywhere the Chief Commissioner can claim expertise. This points to the Chief Commissioner’s decision being entitled to deference.

Becausethe ultimate question the Chief Commissioner was tasked with determining was whether there is shared jurisdiction between thegrievance arbitrator and the SHRC, the direction in Dunsmuir that “[q]uestions regarding the jurisdictional lines between two or morecompeting specialized tribunals have also been subject to review on a correctness basis” (at para 61, emphasis added) does not apply.Simply put, the determination the Chief Commissioner was called to make was not whether the SHRC had jurisdiction and the grievancearbitrator did not.

Rather, the question was whether the SHRC should also have assumed jurisdiction. [59] All of this leads me to conclude that a reasonableness standard should be applied when a court reviews the ChiefCommissioner’s determination at the second step of the Figliola analysis. I am fortified in this conclusion by the analysis in two decisionsnot binding on this Court. [60] In Chan v Canada (Attorney General), 2010 FC 1232, 379 FTR 117 [Chan], the Court was asked to review a decision of theCanadian Human Rights Commission, pursuant to the equivalent to s. 27.1(2)(

d) of the Code. Justice Russell was prepared to accept thatif the applicant had raised a jurisdictional question, the standard of review would be correctness, but otherwise he held that the applicablestandard was reasonableness: [15] In my view, however, the Applicant has not raised issues that go to jurisdiction. Her complaint is that the Commission did notappropriately apply subsection 41(1)(

d) of the Act to the facts before it. In my view, this issue should attract a standard of reasonableness.Notwithstanding Justice Rothstein’s words in Canada Post Corp. v. Canada (Canadian Human Rights Commission) (re CanadianPostmasters and Assistants Assn.) (1997), (FC), 130 F.T.R. 241, [1997] F.C.J.

No. 578 [Canadian Postmasters]at paragraph 3, that “the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases,” the morerecent jurisprudence of the court, and in particular the post Dunsmuir decisions, have used reasonableness as the appropriate standard ofreview when the Commission decides not to deal with a complaint under subsection 41(1)(d). See English-Baker v. Canada (Attorney

General), 2009 FC 1253 , [2009] F.C.J. No. 1604, at paragraph 13; Verhelle v. Canada Post Corp., 2010 FC 416 ,[2010] F.C.J. No. 481 at paragraphs 6 and 7; Morin v. Canada (Attorney General), 2007 FC 1355 (aff’d 2008 FCA 269), [2007] F.C.J. No. 1741 at paragraph 25. [61] Chan was quoted with approval by Strickland J. in Panacci v Canada (Attorney General), 2014 FC 368, 452 FTR 302[Panacci], at paragraph 14. She then continued: [18] As to the suggestion that the Commission’s Decision not to deal with the

section 7 complaint had a significant legal component as itsreasoning was based solely on its

interpretation of Figliola, above, I cannot agree that this has an impact on the standard of review in thiscase. As stated by the Supreme Court in Canada (Canada Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 24, “In substance, if the issue relates to the

interpretation and application of its own statute, is within its expertise anddoes not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled todeference.” [19] Here the Commission was interpreting and applying subsection 41(1)(

d) of its own home statute in arriving at a discretionarydecision as to whether or not it would deal with the Applicant’s complaint. Accordingly, the standard of review is reasonableness anddeference is owed. Nothing more, nothing less. [62] In conclusion, in my respectful view, the Chambers judge correctly held that the Chief Commissioner’s determination that thecomplaint before the grievance arbitrator and the complaint brought to the SHRC were “essentially the same” is appropriately reviewedagainst a standard of reasonableness. 2.

Did the Chambers judge correctly apply the standard of review? [63] The question becomes whether the Chambers judge correctly applied the reasonableness standard in his review of the SHRCDecision. This requires a consideration of the SHRC Decision, and what the Chambers judge had to say about it.

As stated in Dunsmuir: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned withwhether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [64] In respect to whether the two complaints were “essentially the same”, the Chief Commissioner held as follows: 13.

The issues before the arbitration Chair cannot be differentiated from those before the Commission. The issues addressed in thatprocess include whether the employee had a disability, whether the employer failed to accommodate the Complainant’s disability,whether the decision to terminate the Complainant’s employment was tied to his disability, and what the reason was for terminating theComplainant’s employment. The issues before the Commission include: a. Did the Ministry fail to accommodate the Complainant’s disability when they removed specialized equipment from the Complainant? b.

Was disability a factor in the decision to terminate the Complainant’s employment? 14. The findings of Chair Denysiuk Q.C. dispose of both of the allegations in the human rights complaint. Her decision concludes that theComplainant’s misconduct on the job has been proven, that his conduct was culpable, and that various other grounds for termination areestablished.

At paragraph 242 of her decision, Chair Denyskiuk [sic] states: “I am satisfied that the Employer had regard to the appropriateconsiderations in arriving at the decision to terminate.” It was found that the employer had just cause to terminate the Complainant’semployment. This conclusion precludes a finding that disability was the reason for Lapchuk’s termination. 15. The Complainant says that the arbitrator did not view the Complainant’s behaviour through the lens that he was under a disability atthe time, and to that extent was less responsible for his actions.

In fact, the arbitrator did entertain this possibility, and states at paragraph230 of her reasons that this argument ‘‘requires proof, on a balance of probabilities, that Lapchuk has or had PTSD and that the disabilitycaused or contributed to the misconduct.” Having considered all of the evidence, the arbitrator concluded that disability was notestablished at the relevant time. Further, even if disability was established, there was no evidence linking the disability to the behaviourfor which the Complainant had been disciplined.

Having not been established on the evidence, disability cannot be shown to be a factor inthe decision to terminate the Complainant’s employment. 16. In response to the allegation that the employer removed specialized ergonomic equipment from the Complainant, the arbitratoracknowledged that there had been delay in moving Lapchuk’s equipment to a new office, and some ergonomic furniture was misplaced inthe process. Lapchuk interpreted this as an attempt by management to withdraw his permanent accommodation.

At paragraph 200 of herdecision, Chair Denysiuk, Q.C. concludes that that “in the end, there was simply no evidence to support Lapchuk’s complaint thatHighways removed existing accommodations or had somehow failed in its duty to properly accommodate restrictions arising fromphysical injuries.” 17. The issues before me are “essentially the same” as those decided by Chair Denysiuk, Q.C. As such, the grievance arbitration processfulfils the second criterion in Justice Abella’s analysis in Figliola, supra.

The findings made in the grievance proceeding are a full answerto the issues before the Commission. [65] The Chambers judge concluded that the Chief Commissioner’s decision was reasonable. After quoting from paragraph 13 ofthe SHRC Decision, the Chambers judge continued:

[25] I find that his decision to find in the affirmative was reasonable. I agree with counsel for the respondent when she writes: 47. First, it was reasonable to conclude that the grievance and the complaint dealt with essentially the same issues. Both proceedings addressed whether there was a failure to accommodate the Applicant and whether the decision to terminate the Applicant was tied to a disability. The Arbitrator considered the evidence on the issue of the disability and determined that disability was not established at the relevant time.

The Arbitrator further considered the evidence of accommodating the Applicant’s restrictions arising from physical injuries, and found that the allegation that the employer failed to accommodate was unfounded. In short, both proceedings raised whether the termination was discriminatory and the Arbitrator decided that it was not. [footnote omitted] [Brief of the respondent] [26] I will add to this by saying Mr. Lapchuk’s concern that his psychological concerns were not properly addressed by the arbitrator are inaccurate. I note specifically the Chief Commissioner’s comments: 15.

The Complainant says that the arbitrator did not view the Complainant’s behavior through the lens that he was under a disability at the time, and to that extent was less responsible for his actions. In fact, the arbitrator did entertain this possibility, and states at paragraph 230 of her reasons that this argument “requires proof, on a balance of probabilities, that Lapchuk has or had PTSD and that the disability caused or contributed to the misconduct.” Having considered all of the evidence, the arbitrator concluded that disability was not established at the relevant time.

Further, even if disability was established, there was no evidence linking the disability to the behavior for which the Complainant had been disciplined. Having not been established on the evidence, disability cannot be shown to be a factor in the decision to terminate the Complainant’s employment. [Chief Commissioner’s Decision] [ 66 ] Although Mr. Lapchuk did not structure his challenge to the Chambers Decision with reference to the Dunsmuir framework for assessing the reasonableness of the SHRC Decision , I will examine his arguments through this lens. [ 67 ] First, Mr.

Lapchuk points to the statement in paragraph 14 of the SHRC Decision that the finding of just cause “precludes a finding that disability was the reason for Lapchuk’s termination”. Mr. Lapchuk argues from this that the “Commission cannot fetter its discretion. The Commission must examine the facts in [Mr. Lapchuk’s] case and then apply the law to those facts.” The submission appears to be that no matter what the outcome of the arbitration proceedings, the SHRC was obligated to re-examine whether discrimination had occurred, and if it was unreasonable for the Chief Commissioner to conclude otherwise.

Respectfully, the premise of this argument is flawed. [ 68 ] The legislative purpose behind s. 27.1(2)(

d) is to avoid relitigation of issues that have been appropriately determined in another forum. Justice Abella introduced her judgment in Figliola with reference to this, stating as follows: [1] Litigants hope to have their legal issues resolved as equitably and expeditiously as possible by an authoritative adjudicator. Subject only to rights of review or appeal, they expect, in the interests of fairness, to be able to rely on the outcome as final and binding.

What they do not expect is to have those same issues relitigated by a different adjudicator in a different forum at the request of a losing party seeking a different result. On the other hand, it may sometimes be the case that justice demands fresh litigation. [ 69 ] At times, justice may demand (and there may be good reason for) fresh litigation. However, relitigation is not permitted simply because a party wants another kick at the can.

This point was made abundantly clear by the later discussion in Figliola , where Abella J. referred to various common law doctrines as finding “expression in the administrative law context through statutory mechanisms such as s. 27(1)(f) [the equivalent to s. 27.1(2) (d)]” (at para 26).

After a review of the doctrines of issue estoppel, the rule against collateral attack, res judicata , and abuse of process, Abella J. summarized: [34] At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” ([ Danyluk v Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 SCR 460, [ Danyluk ], at para. 20 ; see also [ Garland v Consumers Gas Co. , 2004 SCC 25 , [2004] 1 SCR 629 [ Garland ]], at para. 72, and [ Toronto (City) v C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 SCR 77 [ Toronto (City) ] at para. 37 ).

Their common underlying principles can be summarized as follows: • It is in the interests of the public and the parties that the finality of a decision can be relied on ( Danyluk , at para. 18 ; [ Boucher v Stelco Inc. , 2005 SCC 64 , [2005] 3 SCR 279 [ Boucher ]], at para. 35). • Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings ( Toronto (City) , at paras. 38 and 51 ). • The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature ( Boucher , at para. 35 ; Danyluk , at para. 74 ). • Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision ([ Canada (Attorney General) v TeleZone Inc. , 2010 SCC 62 , [2010] 3 SCR 585], at para. 61; Boucher , at para. 35 ; Garland , at para. 72 ). • Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources ( Toronto (City) , at paras. 37 and 51 ). [35] These are the principles which underlie s. 27(1)(f).

Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice. [ 70 ] Respectfully, the reasons of the Chief Commissioner contain no suggestion that he fettered his discretion, as Mr. Lapchuk argues. Rather, the reasons confirm that the Chief Commissioner asked himself exactly the right question, which is whether the substantive issues that Mr. Lapchuk asked to be determined by the SHRC had already been determined in the arbitration.

[ 71 ] Mr. Lapchuk argues that the Chief Commissioner erred in his conclusion that “issues before the arbitration Chair cannot be differentiated from those before the Commission” ( SHRC Decision at para 13). In this regard, Mr. Lapchuk says that his human rights complaint and his grievance were “about” different things. He asserts that the human rights complaint was about the “failure to accommodate [his] diagnosis of PTSD, failure to provide properly [ sic ] train [him] for his role in law enforcement, and theft and removal of his workspace accommodations for his physical disability”.

In contrast, he says that the arbitration was “about just cause for termination due to [his] defending himself and a 3 day suspension over e-mail policy” and the “issue of the physical accommodations was never grieved by [the union]”. Elsewhere in his factum, Mr. Lapchuk submits, under the heading “The Commission Ignored Evidence”, that he “never had a hearing about his missing disability equipment”. [ 72 ] Mr. Lapchuk does not argue any of this through the lens of a reasonableness standard of review. However, looking at Mr.

Lapchuk’s complaint through the Dunsmuir framework, I see nothing that would suggest that the SHRC Decision lacks in “justification, transparency and intelligibility” in respect to how Mr. Lapchuk’s arguments on these points were dealt with by the Chief Commissioner ( Dunsmuir at para 47 ). In paragraph 13 of the SHRC Decision , quoted earlier, the Chief Commissioner identified the issues in the grievance arbitration and associated them with those issues raised in Mr. Lapchuk’s human rights complaint.

He also specifically framed the two issues in the human rights complaint, being the alleged failure to accommodate Mr. Lapchuk’s disability, associated with the removal of specialized equipment, and whether disability was a factor in the decision to terminate his employment. In paragraph 14, the Chief Commissioner concluded that the grievance arbitrator had disposed of both of those allegations. [ 73 ] Continuing to look at Mr.

Lapchuk’s arguments through the Dunsmuir framework, the remaining question is “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir at para 47 ). I have no difficulty in concluding that the SHRC Decision passes this test. [ 74 ] Given that the issue at this stage of the Figliola analysis is whether the two complaints were “essentially the same”, it is appropriate to compare the issues at stake in both proceedings.

I will start with the SHRC complaint, which states as follows: The Complainant states that there are reasonable grounds to believe that the Respondent did violate

section 16 of the Code (Employment) on the basis of disability. The violation occurred on October 28, 2013. Complainant’s brief description of the nature of the violation: 1. The Complainant is a person with a disability that requires accommodation. 2. The Complainant worked for the Government of Saskatchewan from 1991 until October 29, 2013, most recently as a Program Operator/Traffic Officer in the Ministry of Highways and Infrastructure. 3. The Complainant has for many years been accommodated for disabilities and has been provided with specialized equipment in the workplace. 4.

During a workplace incident in October 2012, the Complainant was injured. The Complainant received Workers Compensation Board benefits. Subsequently, due to these injuries, the Complainant was off work from February 22, until May or June 2013, when he began a graduated return-to-work program. 5. In June 2013, an occupational therapist, as part of his WCV program, recommended further specialized equipment for use by the Complainant in the workplace. The Complainant made a further request for accommodation that would preclude him from being dispatched to field locations until he was fully recovered. 6.

In September 2013, as part of an ongoing conversation about the Complainant’s accommodation requests, all specialized equipment was removed from the Complainant. He was required to work without this equipment. 7. The Complaint’s [ sic ] employment was terminated on October 28, 2013. 8. The Complainant has reason to believe, and does believe, the Government of Saskatchewan Ministry of Highways and Infrastructure refused to accommodate him to the point of undue hardship and/or refused to continue to employ him on the basis of his disability, and thereby discriminated against him contrary to

Section 16 of The Saskatchewan Human Rights Code . [ 75 ] As is apparent, the human rights complaint alleges Mr. Lapchuk is a person of disability who requires accommodation and that the Government “refused to accommodate him to the point of undue hardship and/or refused to continue to employ him on the basis of his disability , and thereby discriminated against him contrary to

Section 16 of the [ Code ]” (emphasis added). The complaint further specifically alleges that the “ violation occurred on October 28, 2013 ” (emphasis added). Therefore, not only is Mr. Lapchuk attempting to draw a direct line between his termination as a Government employee and the alleged discrimination he is asking the SHRC to investigate, but his allegation of discrimination hinges on the termination decision. [ 76 ] Notwithstanding this, the Chief Commissioner gave a more generous

interpretation to Mr. Lapchuk’s human rights complaint by recognizing that it extended to events of alleged discrimination pre-dating the termination of his employment.

Specifically, the Chief Commissioner stated that he understood the complaint to raise issues which “include”: (a) “Did the Ministry fail to accommodate the Complainant’s disability when they removed specialized equipment from the Complainant?”; and (b) “Was disability a factor in the decision to terminate the Complainant’s employment?” (at para 13). [ 77 ] The Chief Commissioner then examined the record and concluded that both issues were clearly at stake in the arbitration.

In my view, this conclusion falls easily “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”, to quote again from Dunsmuir (at para 47 ). In this regard, the grievance arbitrator succinctly summarized Mr. Lapchuk’s position, as put forward on his behalf by the union, to be that the Government “failed to consider the required mitigating factors, and in particular, that Lapchuk suffered from a psychological disability, namely PTSD, which should have been considered by the Employer in determining and

assessing the penalty” ( Arbitration Decision at para 5). On the other hand, the employer’s position was, on the facts, that “there is no evidence linking the disability to the misconduct” (at para 6). [ 78 ] The substance of the two matters raised in the human rights complaints were not only staked out as issues in the arbitration, but they formed the architecture for the evidence presented to the grievance arbitrator. The Arbitration Decision contains a succinct

summary of the nature of the evidence before the arbitrator. This

summary speaks to the centrality of Mr. Lapchuk’s disability-based human rights complaint to the issues in the arbitration: 11. It is often the case that parties agree on the existence of the disability and focus evidence on linking the illness or condition to the misconduct. Failing agreement, expert evidence is required to address the issues. In this case, the parties didn’t agree on the existence of the disability in the first instance or its impact on the events in question, therefore medical evidence is critical. 12.

The Union filed numerous reports from Lapchuk’s family physician, physiotherapists and psychologists. The reports date back to 2001 when Lapchuk was employed at the Saskatchewan Apprenticeship and Trade Certification Commission (“the Commission”). Lapchuk was injured in several motor vehicle accidents and required workplace accommodations as a result. The accommodations followed Lapchuk when he moved to Highways in 2007. The more recent medical reports relate to treatment Lapchuk received for injuries sustained in the Fort Qu’Appelle incident.

The reports include some information about psychological issues - symptoms of PTSD, depression and anxiety - but they don’t squarely address the issues raised in this hearing, namely whether Lapchuk suffered from PTSD when the alleged misconduct occurred and, if so, the connection between the disability and the alleged misconduct. The Employer didn’t accept the reports as proving either the disability or the causal link. [ 79 ] Much of the Arbitrator’s Decision , which occupies 50 pages of single-spaced text, is spent discussing the evidence on the issue of the linkage of Mr.

Lapchuk’s claimed disability, and associated allegations of discrimination, and the termination decision. Because of the limited nature of this Court’s role, I will not be drawn into weighing the evidence presented to the grievance arbitrator, which many of the submissions by Mr. Lapchuk invite us to do.

However, it assists in understanding how the Chief Commissioner was able to reach the conclusion that the issues in the two proceedings were essentially the same if paragraphs 220, 230 and 242 of the Arbitrator’s Decision are placed side-by-side with the conclusions the Chief Commissioner drew from them: Arbitrator’s Decision SHRC Decision 200. My conclusion on credibility allows me to dispose of Lapchuk’s complaint that management took away or tried to take away his permanent accommodations. This complaint runs through the documents and reappeared in his testimony several times at the hearing.

For example, Lapchuk testified that his office furniture was moved and some ergonomic furniture was missing when he finally returned to work after the Fort Qu’Appelle incident. Kreutzer acknowledged that there some glitches when Lapchuk’s office was moved from the main floor to the second floor, but every effort was made to comply with the existing physical accommodations. In fact, Highways made arrangements with the WCB to complete an ergonomic assessment of Lapchuk’s new office to ensure that the configuration was consistent with the prior accommodation.

In the end, there was simply no evidence to support Lapchuk’s complaint that Highways removed existing accommodations or had somehow failed in its duty to properly accommodate restrictions arising from physical injuries. 16. In response to the allegation that the employer removed specialized ergonomic equipment from the Complainant, the arbitrator acknowledged that there had been delay in moving Lapchuk’s equipment to a new office, and some ergonomic furniture was misplaced in the process. Lapchuk interpreted this as an attempt by management to withdraw his permanent accommodation.

At paragraph 200 of her decision, Chair Denysiuk, Q.C. concludes that that “in the end, there was simply no evidence to support Lapchuk’s complaint that Highways removed existing accommodations or had somehow failed in its duty to properly accommodate restrictions arising from physical injuries.” 230. Having carefully considered all of the evidence, I find that Highways has met the burden of establishing that Lapchuk’s conduct in Fort Qu’Appelle warranted discipline.

Before assessing whether termination was a reasonable response, it is necessary to address the Union’s argument that the misconduct was caused by PTSD. This requires proof, on a balance of probabilities, that Lapchuk has or had PTSD and that the disability caused or contributed to the misconduct. 15. The Complainant says that the arbitrator did not view the Complainant’s behaviour through the lens that he was under a disability at the time, and to that extent was less responsible for his actions.

In fact, the arbitrator did entertain this possibility, and states at paragraph 230 of her reasons that this argument ‘‘requires proof, on a balance of probabilities, that Lapchuk has or had PTSD and that the disability caused or contributed to the misconduct”. Having considered all of the evidence, the arbitrator concluded that disability was not established at the relevant time. Further, even if disability was established, there was no evidence linking the disability to the behaviour for which the Complainant had been disciplined.

Having not been established on the evidence, disability cannot be shown to be a factor in the decision to terminate the Complainant’s employment.

242. I am satisfied that the Employer had regard to the appropriate considerations in arriving at the decision to terminate. In considering whether I ought to exercise discretion to mitigate the discharge, I have considered and weighed the following factors: • Lapchuk is a long-service employee. However, this wasn’t the only incident on his record, having recently been suspended for an unrelated matter. As well, Lapchuk was the subject of an earlier complaint by a member of the public.

Although that complaint was found to be without merit, Lapchuk’s instincts in the earlier incident bear a striking similarity and by this I mean his instinct to take a photograph of the complainant’s licence plate. Lapchuk had the good sense to stay in his vehicle previously. Sadly, he didn’t do that in Fort Qu’Appelle. • Given my comments above, the Fort Qu’Appelle incident can’t be viewed as an isolated incident in Lapchuk’s employment history. • I agree with the Union that the incident happened on the spur of the moment with no premeditation. Further, Lapchuk was provoked by Mr. B.

This was recognized in the investigation, but it appears that it wasn’t given much weight by the Employer. In my view, it is a positive factor in the sense that Lapchuk didn’t start the altercation; Mr. B did. However, the fact is that Lapchuk could have backed away and didn’t. • Every termination results in some economic hardship to the grievor. In this case, although the economic consequences are significant, that is largely because of Lapchuk’s litigious behaviour since the termination. • Lapchuk has consistently denied any wrongdoing in the incident.

He has refused and continues to refuse to accept responsibility for his actions, this despite being given opportunities to do so following the incident, during the investigation, at the investigation meeting and at this hearing. As pointed out by the Employer, corrective discipline is designed to correct culpable conduct. As such, the employee needs to be involved in solving the issue which is impossible to do if the employee refuses to accept any responsibility for the conduct. 14. The findings of Chair Denysiuk Q.C. dispose of both of the allegations in the human rights complaint.

Her decision concludes that the Complainant’s misconduct on the job has been proven that his conduct was culpable, and that various other grounds for termination are established. At paragraph 242 of her decision, Chair Denyskiuk [ sic ] states: “I am satisfied that the Employer had regard to the appropriate considerations in arriving at the decision to terminate.” It was found that the employer had just cause to terminate the Complainant’s employment.

This conclusion precludes a finding that disability was the reason for Lapchuk’s termination. [ 80 ] The conclusion I draw from all of this is that the Chief Commissioner satisfied himself—and in my respectful view reasonably so—that the substantive issues at play before the grievance arbitrator were essentially the same as Mr. Lapchuk was seeking to bring forward to the SHRC. The litmus test is this: if Mr. Lapchuk had received a decision from the grievance arbitrator more to his liking, his complaint to the SHRC (which had been held in abeyance while the arbitration proceeded) would never have been pursued.

It would have been moot. [ 81 ] One of Mr. Lapchuk’s other complaints relates to the observation in paragraph 12 of the Arbitrator’s Decision that the evidence led on Mr. Lapchuk’s behalf did not “squarely address” the disability issues. Mr. Lapchuk asserts that the “Commission should have noted that failure and examined the actual evidence of PTSD presented to it”. The argument is that the Chief Commissioner should have reviewed the quality of the case presented by the union and he acted unreasonably because he failed to take notice of the deficiencies in the case presented on Mr.

Lapchuk’s behalf by the union to the grievance arbitrator. In Hebron , this Court found error when the Chief Commissioner did what Mr. Lapchuk claims should have been done in this case: [61] First, the Chief Commissioner erred by improperly straying into a review of the UCAB process and the merits of the UCAB panel’s decision. Here, the Chief Commissioner observed the UCAB process (or the UCAB panel in its decision) had required Mr. Hebron to establish a “cause and effect” nexus between the alleged wrongdoing and the academic consequences — something he said was not required under SHRC processes.

In this regard, he critiqued the UCAB process as requiring a “higher standard” for proof of discrimination

than what might be required before the SHRC. In that this part of the Chief Commissioner’s analysis looks to the requirements for proof of a claim, it improperly steps into the procedural fairness and natural justice aspect of the Figliola framework. In Figliola (at para. 48 ), Abella J. admonished second-in-time tribunals from considering whether they are “comfortable with the process and merits” of the first- in-time decision because doing so makes the second-in-time tribunal complicit in the complainant’s attempt to collaterally appeal the merits of the first-in-time decision.

In terms entirely relevant to the facts of this case as they were to those of Figliola , Abella J. said: [49] To begin, [the BCHRC] questioned whether the [BCWCB’s] process met the necessary procedural requirements. This is a classic judicial review question and not one within the mandate of a concurrent decision-maker.

While the Tribunal may inquire into whether the parties had notice of the case to be met and were given an opportunity to respond [ i.e. , the third leg of the framework], that does not mean that it can require that the prior process be a procedural mimic of the Tribunal’s own, more elaborate one. ... As long as the complainants had a chance to air their grievances before an authorized decision-maker, the extent to which they received traditional “judicial” procedural trappings should not be the Tribunal’s concern. [ 82 ] Finally, it seems appropriate to address in this context the argument Mr.

Lapchuk presents in his factum under the heading “The Arbitrator ignored Evidence”. These submissions are directed at showing that the Chief Commissioner should have agreed to hear Mr. Lapchuk’s human rights complaint because of substantive errors made by the grievance arbitrator. In accordance with Figliola , the Chief Commissioner had no role in this type of review, and he cannot therefore have acted unreasonably when he did not engage in an analysis of this issue. [ 83 ] From all of this, in my respectful view, I see no error in the Chambers judge’s determination of this issue.

It was reasonable for the Chief Commissioner to have determined that the issues Mr. Lapchuk wanted to bring before the SHRC were “essentially the same” as those decided in the arbitration. C. Did the Chambers judge correctly identify and apply the standard of review applicable to the Chief Commissioner’s determination that the grievance arbitration provided an opportunity for Mr. Lapchuk to know the case to be met and have a chance to meet it? [ 84 ] The Chief Commissioner concluded, at the third step of the Figliola analysis, that the grievance arbitration provided an opportunity for Mr.

Lapchuk to know the case to be met and a chance to meet it. The Chambers judge held that this aspect of the SHRC Decision was properly reviewed against a standard of reasonableness and found that decision to be reasonable. In this Court, Mr. Lapchuk says that the Chambers judge should have reviewed this aspect of the SHRC Decision for correctness and set aside the Chief Commissioner’s decision on this point. It is in support of his allegation of error on this point that Mr. Lapchuk seeks leave to adduce fresh evidence. Three questions therefore arise: (

i) whether the Chambers judge was correct that the applicable standard of review was reasonableness; (ii) whether Mr. Lapchuk’s fresh evidence should be admitted; and (iii) whether the Chambers judge correctly applied the applicable standard of review. 1. The applicable standard of review [ 85 ] As I have explained, the Chambers judge proceeded on the basis that the same standard applied to the review of the decisions of the Chief Commissioner at the second and third steps of the Figliola analysis. It is not obvious, however, that the nature of the analysis at these two steps is the same.

The question of whether the substantive question before the grievance arbitrator is essentially the same invites an inquiry falling comfortably within the expertise of the Chief Commissioner. The same cannot be said of the question of whether Mr. Lapchuk was given an opportunity to know the case to be met and had a chance to meet it. Rather, depending on how one views the nature of this latter inquiry, it may involve a very simple and straightforward factual inquiry or involve an intensive investigation into process laden with significant legal nuance. [ 86 ] Mr.

Lapchuk argues that the inquiry is not a simple and straightforward factual inquiry. Instead, he submits that it falls on the second-in-time tribunal (here the Chief Commissioner) to determine whether Mr. Lapchuk received natural justice before the grievance arbitrator. He points to the statement by Caldwell J.A. in Hebron , who summarized this element of the Figliola test as inviting the second-in-time tribunal to determine “whether natural justice was afforded to the parties in the first-in-time complaint process” ( Hebron at para 41 ). Building from this proposition, Mr.

Lapchuk points out that the general standard of review applicable to issues of procedural fairness is a standard of correctness. He then asserts that he was denied a fair hearing before the arbitrator, and for this reason his human rights complaint should have been allowed to proceed. Mr. Lapchuk has a catalogue of complaints that relate to the unfairness of the proceedings before the arbitrator. [ 87 ] I do not view this issue as being decided by Hebron . The issues in Hebron had nothing to do with whether the complainant in that case was given an opportunity to know and meet the case in the first proceeding.

The third leg of Figliola was not a live issue in Hebron because the parties had agreed that this element of the Figliola test had been met (at para 31). Instead, the issues in that case revolved around the first and second legs of the Figliola analysis. Because of this, in my respectful view, when describing the third leg of the analysis as “whether natural justice was afforded to the parties in the first-in-time complaint process” (at para 41), Caldwell J.A. was simply offering a shorthand description for the assessment required at the third stage of the Figliola analysis.

To quote fully from Figliola , the question at the third stage is whether “there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself” (at para 37). [ 88 ] A later observation made by Caldwell J.A. in Hebron reinforces my conclusion that he did not intend to suggest that the third stage of the Figliola analysis would involve an examination by the second-in-time tribunal into the first-in-time tribunal’s process.

In paragraph 61, fully quoted earlier, Caldwell J.A. found error on the part of the Chief Commissioner in that case “ by improperly straying into a review of the UCAB process and the merits of the UCAB panel’s decision” (emphasis added). As I will explain, if the third stage of the Figliola analysis involves a full natural justice review, there would be nothing improper about the second-in-time tribunal reviewing

the process of the first-in-time tribunal. Therefore, Caldwell J.A.’s comment can only be understood as rejecting a role by thesecond-in-time tribunal in examining whether the first-in-time tribunal accorded procedural fairness to the complainant. [89] The question whether the third-stage decision by the Chief Commissioner is properly reviewed employing a correctness orreasonableness standard is, therefore, a matter o

[…]