Update on Labour and Employment Law in Saskatchewan

August 29, 2011

1. Abolishment of the Saskatchewan Human Rights Tribunal:

Amendments to The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the “Code”), were assented to May 18, 2011 and proclaimed into force July 1, 2011. The most significant change to the Code is the shifting of the role of the Saskatchewan Human Rights Tribunal, previously an independent decision-making body that adjudicated human rights complaints, to the purview of the Court of Queen’s Bench.  The Saskatchewan Human Rights Commission (the “Commission”) had a very influential role in the changes and will continue to have input into the budget process as well as ongoing access to administrative supports.  David Arnot, Chief Commissioner for the Commission, has cited delay in hearing complaints as the primary reason for this shift, as the average complaint has taken up to three years to be resolved.

One of the main components of the new model is a greater emphasis on case resolution and a shift away from the punitive retribution justice model through a practice called directed mediation.  This practice will be modeled after Manitoba’s process which has a 98% rate of settlement without litigation, hearings or tribunals.  On occasions when a hearing is required, which the Commission hopes will be rare, the Commission will continue to provide a lawyer at no cost to the complainant at every step in the litigation process up to and including hearings in the Supreme Court.

Additionally, the Code is now subject to a more rigorous objective test for complaint intake.  Whereas the previous version of the Code allowed any person with reasonable grounds for believing that any person had contravened a provision of the Code to make a complaint, the Commission now has a higher threshold for accepting a complaint, based on the sufficiency of the evidence as well as reasonable grounds that a contravention has occurred.  The Commission will request more information from the complainant if needed and if a complaint is dismissed, the complainant can make an application to the court for judicial review and the Commission will represent the complainant at, and bear the cost of, all future hearings if the complainant is successful in the judicial review application.

Another major change to the Code is the new limitation period for filing a complaint. The Commission has found that complaints filed more than one year after the incident occurs are more difficult to investigate and less likely to be proven and accordingly the limitation period has been lowered from 2 years to 1 year.  However, in circumstances that warrant an extension, the Chief Commissioner will have the discretion to extend the limitation.

All provinces have a form of human rights tribunal and the abolishment of the Human Rights Tribunal in Saskatchewan is a first in Canada.  For employers and others in Saskatchewan who are subject to the Code, the new regime will most likely take on a more formal and legalistic approach to the adjudication of human rights complaints as compared to the more informal approach previously adopted by the Human Rights Tribunal. For employers who have previously been subjected to time consuming and unsubstantiated human rights complaints and have been forced to defend the matters before the Human Rights Tribunal, the amendments to the Code are likely a good thing.

2. Union Certification and Employers’ Free Speech:

The right of employees to organize in Saskatchewan for the purposes of collective bargaining is governed by The Trade Union Act, R.S.S. 1978, c. T-17 (the “Act”).  A number of amendments were made to the Act in July of 2008 which have made the Act slightly more employer-friendly.

As of July 2008, when a certification application is filed with the Saskatchewan Labour Relations Board (“SLRB”) a vote must be taken of all employees eligible to vote to determine what trade union, if any, will represent the employees. Previously, a vote was not required if a majority of the employees in a particular workplace simply filed with the SLRB written support for certification (i.e. union membership cards). In addition, new provisions were added which state that at least 45% of the employees in the subject unit must have submitted written support for the certification application before a vote can be directed by the SLRB.  Prior to the 2008 amendments, the SLRB had the discretion to direct a vote on a certification application with as little as 25% written support of the employees having been filed.

The other major change made to the Act under the 2008 amendments was a qualifying statement added to the section which describes unfair labour practices on the part of employers.  Prior to the amendment being made, any communication made from the employer to the employee, particularly during the course of a union certification drive, could be impugned as an interference with the rights of employees under the Act. The SLRB almost always found communications made from employers to employees during the certification process to be unfair labour practices, regardless of how benign the communications might otherwise seem.

In its current state, subsection 11(1)(a) of the Act states that even though an employer is prohibited from interfering with, restraining, intimidating, threatening or coercing an employee in the exercise of any right conferred by the Act, nothing in the Act precludes an employer from communicating facts and its opinions to its employees. This section, dubbed the “Employers’ Free Speech” section, has made a major impact on employers’ abilities to speak out, or even respond to a request for information from its employees, and that impact has been felt the strongest at the certification stage, when the SLRB has traditionally been especially sensitive to this issue.

3. Workers’ Compensation Scheme and Harassment in the Workplace:

Finally, a recent case from the Saskatchewan Court of Queen’s Bench, Clarke v Federated Co-operatives Limited, 2011 SKQB 180 (CanLII), has affirmed that employees will be barred from commencing an action outside of the scheme of The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1 (Saskatchewan) (the “WCBA”) with respect to allegations of harassment against employers.  An employee, Clarke, commenced an action against his employer and four employees, alleging that he was harassed and verbally abused by his superior while he was employed.  The causes of action identified in the statement of claim included intentional infliction of mental and emotional distress, breach of the employment contract, negligence and defamation.

The employer paid assessments to the Workers’ Compensation Board in relation to Clarke’s employment and Clarke was therefore eligible for compensation under the WCBA in the event of a work-related injury, defined in s. 2(k) of the WCBA as an injury “arising out of and in the course of employment”.  The WCBA provides a scheme for compensating workers who suffer work-related injuries and further provides that a worker who has suffered a work-related injury has no right of action against an employer or another worker, and is restricted to claiming compensation under the WCBA.

Clarke argued that his superior engaged in morally reprehensible intentional conduct which could not reasonably be considered to have arisen out of and in the course of that employee’s employment, and therefore was not within the scope of the WCBA.  However, the court affirmed that the WCBA focuses on the injured worker and if the worker receives an injury arising out of and in the course of that worker’s employment, it makes no difference to the application of the WCBA that the person who caused the injury was acting outside of the course of that person’s employment.

Clarke also argued that the words “arising out of” suggest that the injury, to fall within the scope of the WCBA, must arise from a normal aspect of the injured worker’s employment and therefore that his own case could fall within the scope of the WCBA only if part of his employment required him to be subjected to harassment and abuse.  The court did not accept this restriction on the scope of the WCBA and held, in accordance with the presumptions set out at s. 29 of the WCBA, that as Clarke suffered the injury in the course of his employment, it was presumed to have arisen out of his employment.

For employers, the Clarke decision makes it clear that in addition to physical injuries, employees who suffer mental and emotional injuries during the course of their employment are also subject to the provisions of the WCBA.  That means those employees may be entitled to benefits under the WCBA, but at the same time they are barred from suing their employer in relation to those injuries.

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