December 11, 2010 Regina Leader Post

                             Saskatchewan Marches to a Different, Distant Drummer

             Every jurisdiction in Canada has human rights tribunals, with accessible informal hearing procedures, to adjudicate discrimination complaints at first instance.   This is in keeping with the informal adjudicatory justice systems in place across Canada for all sorts of protective regulatory statutes. A few months ago the Supreme Court of Canada expressed confidence in all such adjudicatory bodies by giving them full jurisdiction under the Charter of Rights unless their governing statutes explicitly said otherwise.  Quebec experimented with and then abandoned the notion that the courts were a more appropriate forum for human rights inquiries.  In the name of access to justice, some jurisdictions have allowed direct access to human rights tribunals; eliminating the ‘gate keeper’ function of the human rights commission in determining which complaints “merit” a hearing.  However, Saskatchewan is not attuned to any aspect of this state of administrative affairs; a different and distant drummer appeals to its ear.  On November 29, 2010, Justice Minister Don Morgan introduced Bill 160, An Act to amend The Saskatchewan Human Rights Code and to make consequential amendments to The Labour Standards Act.

            Bill 160 scraps the Human Rights Tribunal along with its informal rules of evidence in favour of the Court of Queen’s Bench governed by The Queen’s Bench Rules of Court.   To be clear, lawyers and no one else gets to play in this court and under these voluminous rules.  Bill 160 leaves a little bit of discretionary space for a party to appear before the court “with the assistance of a third party other than counsel … if the court considers it appropriate in the circumstances and subject to any conditions that the court considers necessary”.  Just how much more accessible this discretionary exception may make the high court remains to be seen.  Hearings will be held only at judicial centres; whereas the Human Rights Tribunals travelled to where the complaint arose; however remote the location.  And, not only is the gate-keeping function retained, two extra new grounds for dismissal of a complaint are given to the Chief Commissioner of the Saskatchewan Human Rights Commission.   And, for good measure, such a dismissal decision is to be absolutely final; unlike the status quo where a dismissal decision is subject to review by the Human Rights Tribunal.

            Bill 160 invites an ironic reading as it also makes consequential amendments to The Labour Standards Act which do march to the common Canadian drummer of establishing informal administrative adjudicatory mechanisms for the hearing of complaints under regulatory legislation.   This begs the question why the different and distant drummer for human rights complaints?  A report entitled Workplace Dispute Resolution Project, published November 2, 2010, by the British Columbia Law Institute, notes - in response to the notion that the B.C. human rights tribunal ought to be scrapped in favour of an omnibus workplace tribunal - that such a drastic step ought to be undertaken only after the publication of a study paper and a full consultation process.  By the way, none of the last five full external reviews of human rights processes in Canada have seen any merit in abandoning human rights tribunal systems in favour of high courts!

                                                                                      Ken Norman

Professor Norman from the U of S is a former Chief Commissioner of SHRC