Dismissal for delay in a human rights complaint

January 21, 2020 | Amy Groothuis

Case Comment: Burke v Saskatchewan Human Rights Commission, 2019 SKQB 339

In 2015, the Saskatchewan Human Rights Commission (the “Commission”) received a complaint naming Gregory Burke as well as two corporate employers as respondents.  At the time, Mr. Burke was the Museum Director for what is now the Remai Modern, and he was alleged to have discriminated against female employees.

The Investigation and Court Application

In 2019, four years after the Commission commenced an investigation into the complaint as part of the standard process, Mr. Burke brought an application to the Court of Queen’s Bench seeking an order granting a stay of the entire proceedings or, alternatively, seeking an order both granting a stay of the proceedings to the extent they relate to him and removing him as a respondent.  Mr. Burke argued that the investigation process resulted in inordinate delay, which caused him prejudice, and as a result the complaint against him ought to be dismissed.

In a decision dated December 31, 2019, the Court held that the four years taken to only partially conduct an investigation resulted in ordinate delay and that Mr. Burke had suffered prejudice as a result of the delay, which was sufficient to grant a stay of proceedings insofar as they involved Mr. Burke as an individual respondent.  The Court went on, however, to provide commentary on the Commission’s decision to expand the investigation’s scope midway through the process.

Inordinate Delay

Although the Commission argued that the matter was “complex” and suggested some delay was attributable to Mr. Burke, the Court held that the complexity was only added when the Commission expanded the scope of the investigation.  Moreover, the complainant was described as being uncooperative, having delayed scheduling interviews with the Commission and declining to participate in the mediation process.

As compared against the Commission’s publicly stated expectation that unresolved complaints would normally proceed to a hearing within approximately 18 months from the point of filing, as well as the average length of time for a complaint to proceed to a hearing in other provinces, the Court concluded that “it is not difficult to find the delay unreasonable, given that the investigation had been ongoing for nearly four years and at the time of arguing the application was not yet complete.”

Prejudice Resulting from the Delay

With respect to whether Mr. Burke had been prejudiced as a result of the delay, the Court looked both at whether the delay could give rise to an unfair hearing, as well as the social and psychological harm imposed on him, and pointed specifically to loss of employment and the “significant psychological/medical harm” that Mr. Burke alleged he has been experiencing.  The Court concluded this point by holding:

[56] The investigation, therefore, has attached a stigma to Mr. Burke’s reputation that has caused significant negative repercussions, including the loss of employment with the Auckland Art Gallery.  As such, his circumstances fit within those recognized by the Supreme Court as constituting significant prejudice.

On the basis of the above, the Court stayed the proceedings against Mr. Burke personally.  However, the Court went on to consider the investigation’s change in scope, as well.

Expanding the Investigation to “Pattern and Practice”

In addition to examining the inordinate delay and its impact on the proceedings, the Court further considered whether the Commission had exceeded its jurisdiction by expanding its investigation to also include “pattern and practice” at the art gallery.  The Court held that The Saskatchewan Human Rights Code, 2018 clearly allowed the acceptance of evidence “establishing a pattern or practice of” disregarding human rights in a hearing into any complaint, and this was sufficient to determine that the Commission had not exceeded its jurisdiction in exploring potential pattern and practice issues.  That said, the Court noted its concern with the way that the Commission approached the “pattern and practice” issue.  More specifically, because the original complaint was not drafted in a way that would suggest any alleged pattern and practice of disregard for human rights, and the change in focus came nearly four years after the complaint was originally filed, “the timing of [the Commission’s] pursuit of these matters only serves to underscore the lack of regard for Mr. Burke’s entitlement to procedural fairness”.

The Takeaway for Employers

Saskatchewan employers responding to a human rights complaint are often frustrated with the length of time taken in conducting an investigation, which is only one part of the overall complaint process.  In Burke, the Commission’s legal counsel argued that its investigations are to be “neutral and thorough”, but the Court commented that a ‘thorough’ investigation “neither equates with nor justifies inordinate delay.  Further, when the investigation is so protracted, and its focused changed some four years later, it begs the question of neutrality”.  Burke is an important reminder that the Commission’s role in upholding quasi-constitutional human rights is not limitless, and that respondents are owed procedural fairness, failing which the Courts are prepared to intervene.


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