Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Hearings – Unreasonable delay – Test – Judicial review – Delay – Judicial review application – Striking out – Premature
Ukrainian Museum of the Ukrainian v. Saskatchewan (Human Rights Commission),  S.J. No. 256, 2010 SKQB 162, Saskatchewan Court of Queen’s Bench, April 30, 2010, J.A. Ryan-Froslie J.
The Applicant, Ukrainian Museum of Canada of the Ukrainian Association of Canada (the “Association”), brought an application for an order staying or quashing the proceedings before the Saskatchewan Human Rights Tribunal (the “Tribunal”) on the grounds of inordinate delay. The complainant, Ms. Demczuk, had filed a complaint against the Association in November 2005. She delivered her material to the Saskatchewan Human Rights Commission (the “Commission”) in respect of conduct that had occurred between July and November 2005. On March 21, 2006, Ms. Demczuk signed and filed a formal complaint with the Commission. The complaint was originally directed to the Association and its director and CEO, (Danyliuk) and the president of the Association’s board of Directors (Jennie Ortynsky).
The Association responded to the complaint in June 2006. An investigation was commenced by the Commission in August 2006. Ms. Ortynsky and Ms. Danyliuk were interviewed several months later and the Commission’s investigator summarized the evidence in July 2007. The Association was provided an opportunity to comment on that summary.
In August 2007, the Commissioner referred the complaint (with respect to the Association only) to the Tribunal for a hearing. A hearing officer was appointed shortly thereafter but was not available for the hearing until November 2008. There were various other delays from October 2008 until the date of this application (March 25, 2010) due to illnesses suffered by the parties involved and difficulties coordinating the schedules of the parties and their counsel. The legal counsel for the Association raised the issue of delay at several points in the years leading up to the date of this application.
The hearing date had not been set but was likely to proceed on the last week of July 2010. The Association argued the delay to have this matter heard was inordinate and prejudiced its ability to defend against the complaint. The Association alleged it lost a key witness in Ms. Ortynsky, whose health had deteriorated to the point that she can no longer testify. In addition, the Association argued the delay had impaired its operations since it is a non-profit corporation dependent upon donations primarily from the Ukrainian community. The ongoing complaint fractured the Ukrainian community and financially impacted the Association.
The counsel for the Commission argued the application was premature. The Association could raise the issue of delay before the Tribunal and the Tribunal is in the best position to determine the extent of prejudice actually suffered by the Association as a result of the delay.
The Court reviewed the leading case of Blencoe. In that case, two types of prejudice were identified, which could arise from inordinate delay. The first is prejudice compromising a right to a fair hearing. The second is prejudice amounting to an abuse of process. Therefore, the Association, to be successful, had to establish inordinate delay and prejudice of one of these two types.
The Court turned to determine the preliminary issue of whether the application was premature. The Commission argued it was impossible to determine whether the Association’s right to a fair hearing had been prejudiced by the delay since the hearing had not yet proceeded.
The Association argued it lost a key witness in Ms. Ortynsky. However, there was insufficient evidence to support that assertion. It was not clear that she was the lead witness in the Association’s case. In addition, it was not clear whether any of her impairment would actually affect her ability to testify.
The Court stated that the Tribunal would be in a far better position to determine the importance of Ms. Ortynsky’s evidence and the extent of her impairment with respect to testifying. The Court dismissed the Association’s application as being premature.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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