An appeal by the University from a judge’s conclusion that the human rights complaint against the University was not defective, was dismissed. A finding of “probable cause” under the old Saskatchewan Human Rights Code was procedural in character. As such, the requirement did not survive recent amendments. The conclusion that the complaint was filed by a person was a finding of fact which was entitled to substantial deference. The judge’s decision on that point was reasonable. The Commission had no obligation to obtain the consent of the person aggrieved to hear the complaint and therefore did not err in failing to consider that question.

27. June 2006 0

Administrative law – Human rights complaints – Discrimination – Gender – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Legislation – Retrospective operation – Procedural requirements and fairness

University of Saskatchewan v. Women 2000, [2006] S.J. No. 231, Saskatchewan Court of Appeal, April 17, 2006, Cameron, Richards and Smith JJ.A.

A group of seven women known as “Women 2000” filed an allegation of discrimination that the University of Saskatchewan discriminated against women by operating a hockey program for them which was inferior to the men’s program.

The University raised a number of preliminary objections with the Human Rights Tribunal as to the validity of the proceedings. First, it argued that under the old Human Rights Code and Regulations, a complaint could not be referred for hearing unless there had been a finding of “probable cause”. The Tribunal concluded that the “probable cause” requirement was procedural only and did not survive the amendments.

Second, the University argued that the complaint had been filed by “Women 2000”, an unincorporated association. It argued that unincorporated groups were not “persons” entitled to file complaints under the relevant provisions of the Code and that as a result, the complaint was a nullity. The Tribunal disagreed, finding as a fact that the complaint had been filed by seven individuals.

Third, the University contended that the Commission had failed to properly address the question of whether it should act on the complaint in light of section 27(2) of the Code. That subsection said that the Commission may refuse to proceed with a complaint “unless the person alleged to be offended against consents”. The Tribunal found it had no authority to review a decision of that sort. As a result, it dismissed the University’s objection.

The University then brought an application in the Court of Queen’s Bench seeking an order quashing the decision of the Tribunal. The chambers judge dismissed the application. The University appealed to the Court of Appeal.

The Court held that the “probable cause” feature which operated under the old Code and the old Regulations did not involve any vested or substantial right within the meaning of the applicable case law. It was procedural in character and therefore did not survive the amendments. The University’s appeal on this point therefore failed.

The Court then noted that a decision by the Tribunal that the complaint had been filed by seven women as opposed to “Women 2000” was a finding of fact. This determination attracted a substantial measure of deference. The Court noted that the section of the complaint detailing the particulars of the alleged wrongdoing consistently used the word “we”, thereby referring to the individual women involved in the proceedings. Taking into account the document as a whole, it was not unreasonable for the Tribunal to have reached the conclusion that it did. The University’s appeal on this point failed as well.

Finally, the Court noted that the Commission’s authority under section 27(2) of the Code was purely discretionary. It was free to proceed with the complaint without the consent of the victim of the alleged discriminatory action. The section merely empowered the Commission to refuse to act on a complaint in appropriate circumstances. As such, the Commission made no error by failing to turn its attention expressly to the question as to whether it should act on the complaint in the absence of consent from those said to be offended by the University’s alleged actions. Section 27(2) did not operate to constrain the Commission’s decision-making powers or to impose a pre-condition which the Commission had to satisfy before going forward with the complaint.

The university’s appeal was therefore dismissed.

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