Saskatchewan Human Rights Commission Appellant (Respondent/Applicant) v. Saskatchewan Power Corporation, 2024 SKCA 13

Court of Appeal for Saskatchewan Docket: CACV4099 Citation: Saskatchewan Human Rights Commission v Saskatchewan Power Corporation , 2024 SKCA 13 Date: 2024-02-13 Between: Saskatchewan Human Rights Commission Appellant (Respondent/Applicant) And Saskatchewan Power Corporation Respondent (Applicant/Respondent) And Bradly Schumacher Respondent (Respondent/Complainant) Before: Leurer C.J.S., Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Chief Justice Leurer The Honourable Mr.

Justice Barrington-Foote On appeal from: QBG-SA-00885-2021 (Sask KB), Saskatoon Appeal heard: September 18, 2023 Counsel: Jay Watson for the Appellant Susan Barber, K.C., and Calen Nixon for Saskatchewan Power Corporation Patrick Thomson for Bradly Schumacher Tholl J.A. I. INTRODUCTION [ 1 ] After his employment was terminated by the Saskatchewan Power Corporation [SaskPower], Bradly Schumacher filed a complaint with the Saskatchewan Human Rights Commission [Commission], asserting that SaskPower had discriminated against him on the basis of disability and had failed to accommodate him.

The Chief Commissioner of the Commission applied to the Court of Queen’s Bench, as it was at the time, under s. 34 of The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ Code ], seeking a hearing of Mr. Schumacher’s complaint. As part of the application, the Chief Commissioner alleged that SaskPower had engaged in systemic discrimination against disabled employees.

SaskPower successfully applied to have those allegations struck as being immaterial, prejudicial, and an abuse of process: Saskatchewan Human Rights Commission v Schumacher (4 November 2022) Saskatoon, QBG-SA- 00885-2021 (Sask KB) [ Chambers Decision ]. The Commission appeals from that finding. [ 2 ] For the reasons that follow, the appeal is allowed. II. BACKGROUND [ 3 ] It is useful to provide a high-level

summary of the procedure used in Saskatchewan to address a human rights complaint relating to employment under the Code because the process in Saskatchewan differs greatly from many other jurisdictions. [ 4 ] An individual who reasonably believes that they have been discriminated against in employment on the basis of a prohibited ground may file a written complaint with the Commission: ss. 2 , 16 , and 29 of the Code . The Commission takes on an investigatory role and may dismiss the complaint for a variety of reasons: ss. 30–32 of the Code . A complaint may be referred to mediation: s. 33 of the Code .

If the Commission determines that it is appropriate to proceed with an adjudication of the complaint, it may apply to the Court of King’s Bench and request a hearing: s. 34 of the Code . The Court of King’s Bench is required to fix a date for the hearing, but it is entitled to set the matter down for a pre-hearing conference prior to doing so: s. 35 of the Code . A Court of King’s Bench practice directive, “Applications under The Saskatchewan Human Rights Code ”, CV-PD 5 (1 October 2019) [Civil Practice Directive #5], sets out the detailed procedure that is used in that court.

One of the requirements of that practice directive is that the particulars of the complaint be set out in an appendix attached to the application. If the matter is not resolved at a pre-hearing conference, it is set down for a hearing before a Chambers judge in the Court of King’s Bench. The Commission is a full party to the hearing and has carriage of the complaint: s. 37 of the Code . In practice, its counsel prosecutes the complaint and calls witnesses, tenders evidence, and makes submissions. [ 5 ] This brings us to the facts of the matter at hand. Mr. Schumacher commenced employment with SaskPower in 1979.

He suffered a back injury in 2004 and received workers’ compensation benefits until he returned to work with no restrictions in 2006. In 2016, SaskPower informed Mr. Schumacher that he would be required to work in a new location, but would continue to perform the same job duties. Mr. Schumacher expressed a belief, supported by a letter from his physician, that, because of his previous back injury, he was physically unable to perform the work SaskPower was now asking him to do. There was an initial accommodation; after which, Mr. Schumacher went on sick leave pending an assessment of his medical situation.

In August of 2016, he began working again under a

return-to-work plan, but his employment was ultimately terminated by SaskPower on September 1, 2016. Because the merits of Mr. Schumacher’s individual claim are not at issue in this appeal, I will not recount the reasons SaskPower gave for that termination. [ 6 ] Mr. Schumacher grieved his termination, but the grievance was denied at three levels and was ultimately withdrawn by his union. On November 24, 2017, Mr.

Schumacher filed a complaint with the Commission under s. 16 of the Code , alleging that SaskPower had failed to make the appropriate accommodations for him and that he had been discriminated against by SaskPower on the basis of disability. An investigation was conducted by the Commission, and the matter was directed to mediation. The mediation was unsuccessful. [ 7 ] The Chief Commissioner of the Commission applied to the Court of Queen’s Bench, pursuant to s. 34 of the Code , seeking a hearing of Mr. Schumacher’s complaint. In addition to alleging that SaskPower had discriminated against Mr.

Schumacher and failed to accommodate him, the Commission’s application, in appendix A, contained the following allegations about systemic discrimination within SaskPower: [41] Schumacher says that SaskPower has engaged in a pattern of conduct that recklessly disregarded his rights, and the rights of other disabled employees under the Code , the particulars of which include: a. SaskPower questions the veracity of disabled employees’ medical limitations without proper foundation or justification; b. SaskPower contradicts the medical advice of disabled employees’ treating physicians; c.

SaskPower assesses medical issues and accommodation without sufficient expertise and without obtaining professional advice; d. SaskPower pressures disabled employees to return to regular duties under threat of discipline despite knowledge that this is contrary to medical advice; e. SaskPower fails to accommodate employees with disabilities to the point of undue hardship; and f.

SaskPower terminates the employment of disabled employees without cause as a result of their disabilities. [ 8 ] The Commission asserts that it is entitled to lead evidence relating to these allegations on the basis of s. 35(4) of the Code : Hearing 35

(1) Subject to subsection (2), on the receipt of an application for a hearing pursuant to subsection 34(1), the court shall fix a date, time and place for the hearing.

(2) Before setting a hearing date, the court may direct the parties to participate in a pre-hearing conference.

(3) Except where modified by this Act, The King’s Bench Rules apply to a hearing pursuant to this section.

(4) The court is entitled: (

a) to receive and accept evidence led for the purpose of establishing a pattern or practice of resistance to or disregard or denial of any of the rights secured by this Act; and (

b) in arriving at its decision, to place any reliance that it considers appropriate on the evidence and on any pattern or practice disclosed by the evidence. [ 9 ] In January of 2022, SaskPower conducted a questioning of Mr. Schumacher. He was unable to answer, in any meaningful way, how it was that SaskPower had “engaged in a pattern of conduct that recklessly disregarded his rights and the rights of other disabled employees under the Code ”, as was alleged in paragraph 41 of the application.

Based on this, on February 24, 2022, SaskPower sent the Commission a letter requesting that it withdraw the allegations in paragraph 41 or provide more specific particulars of this allegation. In response, on March 8, 2022, and July 27, 2022, the Commission provided information regarding complaints by six other SaskPower employees. Broadly described, four of those complaints had been settled without an admission of liability by SaskPower, one had been resolved through the grievance process, and one was still pending.

None of the five concluded matters had resulted in an admission or a finding that SaskPower had discriminated against an employee or had failed to accommodate them. [ 10 ] As already noted, SaskPower then applied to the Court of Queen’s Bench seeking to strike paragraph 41 of the Commission’s application. The application was made pursuant to Rule 7-9 (striking out a pleading or other document) ’ . In the alternative, SaskPower asked the court to strike the impugned paragraph under Rule 7- 2 (summary judgment) or Rule 7-1 (application to resolve issues).

The parties agreed this alternative relief should be adjourned pending the outcome of the Rule 7-9 portion of the application. SaskPower also asked for other relief that is not at issue in this appeal and will not be further addressed. III. COURT OF KING’S BENCH DECISION [ 11 ] The Chambers judge set out the issues and facts and then addressed whether paragraph 41 should be struck pursuant to Rule 7-9. He noted this Court’s discussion in Reisinger v J.C.

Atkin Architect Ltd. , 2017 SKCA 11 , 411 DLR (4th) 687 [ Reisinger ], where it stated that the purpose of Rule 7-9 is “to identify the real issues in dispute” and to get to a resolution of the claim for the least expense (at para 38). He set out the positions of the parties relating to the admission of pattern of practice evidence, which he noted is “often called propensity evidence or similar fact evidence” ( Chambers Decision at para 30). [ 12 ] The Chambers judge opened his analysis by observing that pattern of practice evidence is often “submitted to show that the

respondent is the sort of corporation which is likely to have committed such an offence”; he opined that “[s]uch evidence is generallyinadmissible” (at para 30). He then quoted from R v Handy, 2002 SCC 56, [2002] 2 SCR 908, and analyzed three cases relied upon bySaskPower: Fitkall v Great Pacific Industries Inc., (No. 2), 2005 BCHRT 183; Sinclair v London (City), 2008 HRTO 48, 63 CHRR 513[Sinclair]; and Morin v Huawei Technologies Canada Co., Ltd., (Ont LRB). [13] Following this, the Chambers judge allowed SaskPower’s “application to strike paragraph 41 of the Formal Complaint andthe resultant particulars provided pursuant to Rule 7-9(2)(c), (

d) and (

e) on the basis that paragraph 41 is immaterial, prejudicial and anabuse of process” (Chambers Decision at para 38). IV. ISSUES [14] In its factum, the Commission describes three grounds of appeal.

The first two are rooted in how the Chambers judgeinterpreted s. 35(4) of the Code and assert that he “erred in law by determining that pattern and practice evidence is only admissible asevidence if there is a finding or admission of liability with respect to the issue in question” and by “unreasonably narrowing the scope ofpattern and practice evidence that can potentially be called pursuant to section 35(4) of the Code”.

The third ground is that the Chambersjudge “erred in law by making an evidentiary determination without having heard the evidence, that should have been made by the trierof fact at the hearing”. Considering these grounds of appeal, the outcome of the Commission’s appeal turns on whether the Chambersjudge properly interpreted s. 35(4) of the Code. V.

ANALYSIS [15] The Commission submits that the Chambers judge erred by determining that only human rights complaints that hadterminated with a finding of discrimination or an admission of discrimination could be tendered as evidence of a pattern of conduct or apractice under s. 35(4) of the Code.

It bases this argument on the Chambers judge’s consideration of Sinclair (Chambers Decision): [33] In the Sinclair case, the Ontario Human Rights Tribunal referred to the Handy case and stated at para. 26: [26] The balancing of probative value against prejudicial effect, developed primarily in criminal cases such as Handy, must be appliedwith consideration of the nature of human rights cases and the values relevant to human rights proceedings.

These include the fact thatdiscrimination is often subtle and may be difficult to prove, and that a pattern of conduct may be particularly probative in many humanrights cases. At the same time, the Tribunal is committed to fair, just and expeditious resolution of human rights cases, and theprejudicial effect of hearing evidence not only on the particular incident in question, but one or more other incidents, and the credibilityof witnesses in relation to those events, may cause a significant lengthening of a hearing with little benefit for the determination of theissues in the case.

There is also often prejudice to respondents in having to defend themselves against allegations that never formed thesubject matter of human rights proceedings at the time they occurred. These factors must be taken into account in the balancing analysis. [34] I am satisfied that if the Chief Commissioner were allowed to call pattern of evidence in this case, it must do so with specificreference to individuals who were found to have been discriminated against on the basis of disability as was alleged by Schumacher.Mere reference to situations in which disability is alleged is not evidence of propensity.

The settlements or resolutions which may havebeen achieved in respect to the six other complaints does not lead to a propensity unless liability has been admitted. The parties agreethat liability was not admitted in any of the cases and that there were, in fact, confidentiality clauses and any payments made withoutadmission of liability in respect to the settlements.

I find that the prejudice of SaskPower would outweigh the probative value of suchevidence. [35] I am also satisfied that if propensity evidence is allowed in situations such as this, it would prevent future settlements of cases forfear of establishing a precedent. (Emphasis added) [16] The Commission’s specific assertion is that, by stating that “settlements or resolutions which may have been achieved … doesnot lead to a propensity unless liability has been admitted” (emphasis added, at para 34), the Chambers judge impermissibly narrowedthe scope of s. 35(4).

In short, the Commission submits that the Chambers judge erred by interpreting the provision in a mannercompletely at odds with its grammatical and ordinary meaning, the object and purpose of the Code, the related provisions in the Code,and the legislative history of s. 35(4). [17] SaskPower argues that the Chambers judge did not err in his

interpretation of s. 35(4) or in his determinations on the scope ofevidence that would be permitted to be called in a future hearing. It contends that it should not be required to relitigate matters that havebeen resolved. While it recognizes that pattern or practice evidence may be admitted under s. 35(4) of the Code, SaskPower asserts thatthe Chambers judge properly struck the allegations in this specific matter. [18] The question in this appeal comes down to one of statutory

interpretation and, therefore, raises a question of law. As such, thisportion of the Chambers Decision is reviewable on the standard of correctness: Regina Bypass Design Builders v Supreme Steel LP, 2021SKCA 82 at para 22. My approach to the

interpretation of the legislation is based on s. 2-10 of The Legislation Act, SS 2019, c L-10.2,and the framework described in paragraphs 23 to 28 of Regina Bypass. [19] In British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62, [2017] 2 SCR 795, the Supreme Court indicated that abroad and liberal approach must be used in the

interpretation exercise when human rights legislation is involved: [31] Added to the modern principle are the particular rules that apply to the

interpretation of human rights legislation. The protectionsafforded by human rights legislation are fundamental to our society. For this reason, human rights laws are given broad and liberalinterpretations so as better to achieve their goals (Ontario Human Rights Commission v. Simpsons-Sears Ltd., (SCC),

[1985] 2 S.C.R. 536, at pp. 546–47; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), (SCC), [1987] 1 S.C.R. 1114, at pp. 1133–36; Robichaud v. Canada (Treasury Board), (SCC), [1987] 2 S.C.R. 84,at pp. 89–90). As this Court has affirmed, “[t]he Code is quasi-constitutional legislation that attracts a generous

interpretation to permitthe achievement of its broad public purposes” (McCormick [2014 SCC 39], at para. 17). In light of this, courts must favour

interpretationsthat align with the purposes of human rights laws like the Code rather than adopt narrow or technical constructions that would frustratethose purposes (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at §§ 19.3–19.7). [20] As recognized by the parties, s. 35(4)(

a) of the Code permits the Commission to call evidence of “a pattern or practice ofresistance to or disregard or denial of any of the rights secured” by the Code. In my view, the outcome of this appeal does not turn onwhether, ultimately, this evidence is admissible, but whether the admissibility of this evidence should have been determined at thispreliminary stage, through the striking of the paragraph of the claim to which it related. [21] The starting point in the interpretive exercise is a determination of the purpose of the provision in question. This purpose isgrounded in the purpose and objects of the Code as a whole, as set out in s. 3: Objects 3 The objects of this Act are: (

a) to promote recognition of the inherent dignity and the equal and inalienable rights of all members of the human family; (

b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminatediscrimination. [22]

Section 3 of the Code does not limit its object and purpose to the reception, investigation, and adjudication of individualcomplaints. Its goals are wider and extend to the promotion of human rights and the furtherance of the public policy of identification andelimination of discrimination in Saskatchewan. [23] As part of its mandate, the Commission has duties that extend from dealing with complaints of individual discrimination intothe realm of addressing systemic discrimination. This is evident in the following portions of s. 24 of the Code: Duties of commission 24 The commission shall: … (

b) promote an understanding and acceptance of, and compliance with, this Act; (

c) develop and conduct educational programs designed to eliminate discriminatory practices; … (

h) promote and pursue measures to prevent and address systemic patterns of discrimination … . [24] The more specific purpose of s. 34 and s. 35 of the Code is to provide the mechanism for a complaint to be set down for ahearing in the Court of King’s Bench and to provide for the procedure by which the hearing is to be conducted. [25] This brings me to an examination of the text of s. 35(4) itself. For ease of reference, I will repeat it here: 35(4) The court is entitled: (

a) to receive and accept evidence led for the purpose of establishing a pattern or practice of resistance to or disregard or denial of any ofthe rights secured by this Act; and (

b) in arriving at its decision, to place any reliance that it considers appropriate on the evidence and on any pattern or practice disclosedby the evidence. [26] Under common law, evidence of extrinsic misconduct of an accused person, known as propensity evidence, is inadmissible ina trial if it is sought to be used to suggest that an accused person’s alleged bad character or prior bad acts makes them more likely to havecommitted the crime for which they are charged: Handy at paras 31–40 and R v Calnen, 2019 SCC 6 at para 134, [2019] 1 SCR 301.

Theterm propensity evidence refers to presumptively inadmissible character evidence in the criminal law context. While the parties and theChambers judge referred to the proposed evidence in the matter at hand as propensity evidence, I prefer to call it pattern or practiceevidence, given that propensity evidence has a specific meaning in the criminal law sphere and has been the subject of a voluminousamount of jurisprudence that does not translate very well into the current context, where an enactment has changed the default positionfor the adjudication of human rights complaints.

Additionally, propensity evidence relies on past conduct to infer guilt for a newallegation (Handy at para 31 or Calnen at para 42), while pattern or practice evidence is used to expose systemic wrongdoings that are atthe core of a human rights complaint: X. v Empire Investments Corporation, at para 50 (Sask QB) [EmpireInvestments]. In the matter at hand, in addition to the specific complaint regarding Mr. Schumacher, the Commission is alleging thatSaskPower engaged in systemic discrimination.

This portion of the allegations is not relying on past conduct solely to infer guilt for anew individualized complaint. [27] There is limited guidance from other jurisdictions in Canada in interpreting provisions equivalent to s. 35(4) of the Code.Yukon and Nunavut human rights legislation contain provisions similar to s. 35(4), as set out in Human Rights Regulations, YOIC1988/170, s 11(2), and Human Rights Act, CSNu, c H-70, s 30(3). Other jurisdictions do not have similar provisions. I note that British

Columbia and Manitoba have taken a different approach to this issue by enacting remedial provisions to address discriminatory patternsor practices that are established after a hearing, but their provisions are not comparable: Human Rights Code, RSBC 1996, c 210, s 37(2)(c)(ii), and The Human Rights Code, CCSM c H175, s 43(2)(e). [28] The Yukon Human Rights Panel of Adjudication [Yukon Panel] has held that “evidence of similar acts for the purpose ofproviding a pattern of conduct or a practice” is presumptively admissible (Hureau v Yukon (Human Rights Board of Adjudication) (No 1), (YK HRC) at para 28, aff’d 2014 YKSC 21, 79 CHRR 85), and it is the Yukon Panel’s responsibility to “use itsexpertise and discretion in according appropriate weight and relevance” to this evidence (at para 30).

No reported decisions referencingor interpreting Nunavut’s enactment were brought to the Court’s attention or located in its own research. [29] In my view, the common law principle that pattern or practice evidence is presumptively inadmissible has beenunambiguously displaced by s. 35(4) of the Code when a hearing is being conducted pursuant to s. 34 and s. 35. A similar enactment in aprior version of the Code has been interpreted by the Court of Queen’s Bench.

In Empire Investments, the pattern or practice evidenceconsisted of employees’ experiences with their employer and was sought to be tendered to demonstrate that the employer engaged insystemic, gender-based discrimination: see paragraph 47.

Justice Wilkinson referred to the reception of this type of evidence undercomparable predecessor legislation, which was not materially different from s. 35(4): [7] The court is entitled to receive evidence regarding a pattern of practice in terms of prior discrimination by the respondents, and to relyon that evidence in reaching a decision: see s. 29.7(4) of the [1979] Code which states: 29.7(4) The court is entitled to receive and accept evidence led for the purpose of establishing a pattern or practice of resistance to ordisregard or denial of any of the rights secured by this Act, and the court is entitled to place any reliance that it considers appropriate onthe evidence and on any pattern or practice disclosed by the evidence in arriving at its decision. [8] The test for the reception of “pattern of practice” evidence is whether it is (1) credible, cogent, and bears sufficient similarity to theevidence of the complainant, and (2) of sufficiently probative value to outweigh any prejudicial effect upon the respondents: HowardJohnson Inn v.

Saskatchewan (Human Rights Tribunal) and C.L., 2010 SKQB 333, [2010] S.J. No. 557 (QL) [CHRR Doc. 10-3517]. … [50] … “Pattern of practice” evidence is presumptively admissible. It is left to the court to decide what use to make of the evidence. Themore focussed and specific the evidence is in relation to the complaint, the more cogent its probative value. Accordingly, depending onits weight and significance, “pattern of practice” evidence might conceivably be the preponderant evidence in establishing a violation ofthe Code.

In other cases, it might provide needed corroboration in terms of giving credence to the complaint and buttressing a witness’scredibility – for example, in circumstances involving a potentially unreliable witness, or one who stands to receive material advantagefrom court testimony. [30] Section 35(4) of the Code is permissive in that it entitles the Court of King’s Bench to receive pattern or practice evidence atthe hearing, but does not require that it do so.

The provision is otherwise drafted in a very broad manner, permitting a party to attempt totender such evidence, and the court to admit it, for the purpose of the Commission establishing that the subject of the complaint hasengaged in a “pattern or practice of resistance to or disregard or denial of any of the rights” in question in this matter. There is no limitinglanguage in the section.

Under s. 35(4)(b), the Court of King’s Bench is entitled to rely and place the weight it determines is appropriateon any such evidence in deciding whether the Commission has proven either specific breaches of the Code in relation to a complainant ora pattern or practice that is a breach in and of itself. [31] As part of the relief it sought in its application to the Court of Queen’s Bench, the Commission asked for the followingremedy: “An Order under s. 39(1)(

a) of The Saskatchewan Human Rights Code, 2018 (the ‘Code’) requiring SaskPower to ceasecontravention of the Code and take measures to prevent similar contraventions of the Code”. This invoked the following sections of theCode: Orders by court 39(1) If the court finds that there has been a contravention of this Act or any other Act administered by the commission, the court may,subject to

section 41, order any person to do any act or thing that in the opinion of the court constitutes full compliance with thatprovision and to rectify any injury caused to any person and to make compensation for that injury, including: (

a) requiring that person to cease contravening that provision and to take measures, including adoption of a program mentioned in section55, to prevent the same or a similar contravention occurring in the future … . … Programs, approved or ordered by commission 55(1) On the application of any person or on its own initiative, the commission may approve or order any program to be undertaken byany person if the program is designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantagesthat are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, creed, religion,colour, sex, gender identity, sexual orientation, family status, marital status, disability, age, nationality, ancestry or place of origin ofmembers of that group, or the receipt of public assistance by members of that group, by improving opportunities respecting services,facilities, accommodation, employment or education in relation to that group or the receipt of public assistance by members of that group. [32] As can be seen from the requested remedy, and the contents of paragraph 41, the Commission was alleging a systemicproblem with the manner in which SaskPower deals with employees who seek accommodation for disabilities.

The adjudication of suchan allegation, with the tendering of the required evidence to establish such a pattern of conduct or practice, is clearly contemplated andpermitted by ss. 3, 16, 24, 35(4), 39(1)(a), and 55(1) of the Code. In fact, although evidence of a pattern or practice may be relevant to

the complaint by a particular individual who alleges discrimination, it can also be more. A pattern or practice may also constitute a breach in and of itself. [ 33 ] This brings me to the restriction imposed by the Chambers judge in paragraph 34 of his reasons, where he effectively prohibited evidence of alleged previous discrimination absent a prior finding or admission of liability.

In my view, the Chambers judge went astray by believing that the Commission had proposed to only call evidence of the fact that complaints had been filed by six individuals and would then attempt to rely on the existence of the complaints alone to establish a pattern or practice. That is not what the Commission planned to do.

It expected to call evidence of the underlying facts of the complaints, not the bare fact that the complaints had been made and how some of them had been resolved. [ 34 ] Taking the broad language of s. 35(4) into account – to receive and accept evidence led for the purpose of establishing a pattern or practice of resistance to or disregard or denial of any of the rights – I see no reason why such evidence could be called only if SaskPower had admitted liability or an adjudication had determined that discrimination had occurred. Section 35(4) contains no such restriction.

If this were the law, parties would be able to bury damaging facts and avoid the calling of evidence of a pattern or practice by settling any problematic matters without an admission of liability. This would defeat one of the purposes of the Code , which is to hold employers liable for systemic discrimination.

The terms of a settlement, and perhaps even the fact that a settlement occurred, might not be admissible, but, as a general principle, a party should not be able to take underlying relevant facts out of play in a human rights matter through the device of a settlement agreement. [ 35 ] If an adjudication or settlement had resulted in a finding or agreement by the parties that there had been no discrimination, then the situation might have been different.

SaskPower would have had a better argument that it should not have to defend against the same allegations that had already been resolved in its favour and were accordingly res judicata . But those are not the circumstances in the matter at hand. Here, there have been no findings or admissions one way or the other. [ 36 ] SaskPower argues that it will have no incentive to settle any future human rights matters if it knows that it might have to face the same allegations in a later proceeding.

This position ignores the numerous reasons why parties might settle a complaint, including a negative assessment of the risk of liability, the risk of a potentially large quantum of damages, certainty regarding the remedy in the specific matter, the minimization of bad publicity, bringing an end to a dispute that may be causing disharmony in the workplace, and the unlikelihood that a similar claim would be asserted in another proceeding. In some cases, SaskPower might decide that it had acted in a manner that was inappropriate and want to rectify the situation through a negotiated resolution.

Most importantly, it ignores the clear statutory language of s. 35(4) of the Code that does not rely on the presence or absence of a settlement or a live dispute. It is noteworthy that under s. 31(3) of the Code , the Commission, in its sole discretion, is entitled to publish any settlement that has resolved a complaint under the Code , so the possibility of a benefit accruing to an employer from the confidentiality of a settlement is not engaged. [ 37 ] I find that the Chambers judge erred by narrowing the scope of the evidence that could be tendered under s. 35(4) of the Code .

Such evidence is not limited to circumstances where liability has been previously established in relation to other persons. Such evidence is – as stated by Wilkinson J. in Empire Investments – presumptively admissible. The Chambers judge erred in striking the impugned paragraph. [ 38 ] Of course, this judgment is not offering any comment on whether SaskPower has engaged in the alleged conduct or whether the proffered evidence will ultimately be admitted or relied upon to any degree by the judge who conducts the hearing.

This decision merely determines that the Commission, in the context of a Rule 7-9 application, should not have been summarily prevented from making its allegations and attempting to tender evidence to prove those allegations. I note that I arrive at this conclusion assuming, without deciding, that Rule 7-9 applies to an application filed with the Court of King’s Bench under s. 34 of the Code . That issue was not fully argued and is best addressed in another matter where the answer to that question is relevant to the outcome of the appeal. VI.

CONCLUSION [ 39 ] The appeal is allowed and paragraph 1 of the order, which struck paragraph 41 of appendix A of the Commission’s application, is set aside. The matter is remitted to the Court of King’s Bench to hear SaskPower’s applications under Rules 7-1 and 7- 2 . [ 40 ] Pursuant to s. 36 of the Code , this Court cannot award costs to any party unless there has been vexatious, frivolous, or abusive conduct. Such behaviour has not been established, so there shall be no costs for this appeal. “Tholl J.A.” Tholl J.A. I concur. “Leurer C.J.S.” Leurer C.J.S. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.