On judicial review, the court held that the Applicants failed to demonstrate that the Human Rights Tribunal member’s decision to order the matter to proceed to an inquiry was unreasonable

Administrative law – Human rights complaints – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Procedural requirements and fairness – Jurisdiction of tribunal – Standard of review – Reasonableness simpliciter

Saskatoon Regional Health Authority v. Kahsai, [2004] S.J. No. 417, Saskatchewan Court of Queen’s Bench, May 27, 2004, Foley J.

The Saskatoon Regional Health Authority (“SRHA”) and its employee S. (the “Applicants”) applied to set aside a decision made by a member of the Human Rights Tribunal directing an inquiry into the complaint made by the complainant, Kahsai.

Kahsai alleged that while attending a rehabilitation centre operated by SRHA, he was discriminated against by S. during the course of a verbal exchange. In a report dated January 15, 2002, the Chief Commissioner of the Human Rights Tribunal advised Kahsai that his complaint was dismissed as lacking merit. Kahsai then requested a review of the dismissal pursuant to section 29(4) of the Saskatchewan Human Rights Code. A member of the Human Rights Tribunal panel was assigned to perform the requested review. The member found that the investigation carried out under the auspices of the Chief Commissioner was cursory, amounting to “an omission of such a fundamental nature as to warrant sanction” and he therefore directed that an inquiry proceed.

The Applicants asserted that the member erred by reviewing the process used rather than the decision reached by the Chief Commissioner. In the alternative, the Applicants sought judicial review of the member’s decision on the ground that he acted in excess of his jurisdiction by considering the adequacy of the process leading to the Chief Commissioner’s decision, thereby trespassing on the sole jurisdiction of a superior court.

In discussing the standard of review, the court noted the following: (1) There was no privative clause protecting a decision made by a panel member pursuant to section 29.4(4); (2) With respect to relative expertise, the member was expected to be more versed than the court in the internal investigation procedures and policies of the Human Rights Commission; (3) With respect to the purpose of the legislation, the review procedure was unique and enabled complainants to present additional submissions and evidence to the reviewer who may then allow the complainant to personally proceed to the inquiry stage; (4) With respect to the nature of the question to be decided, the reviewer had to determine whether the complaint should proceed to an inquiry. He was obliged to review the decision rendered by the Chief Commissioner and, in so doing, consider the methodology used and materials garnered by the Chief Commissioner and her office.

The court held that in light of these factors the standard of review was that of reasonableness simpliciter.

The court held that the Applicants failed to demonstrate that the member’s decision was unreasonable. The member’s explanation for reaching the decision he did was tenable, rational and supported his decision.

The application for judicial review was therefore dismissed.

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