An appeal by an employer (“HJI”) from the decision of the Saskatchewan Human Rights Tribunal (the “Tribunal”) which held that HJI had discriminated against the female complainant on the basis of her sex was dismissed where the Court found that the conclusions reached by the Tribunal fell within the range of possible, acceptable outcomes based on the evidence and the findings of credibility, both of which were meticulously explained in the Tribunal’s decision

23. November 2010 0

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights complaints – Sexual harassment – Judicial review – Evidence – Similar fact evidence – Pattern of practice – Compliance with legislation – Procedural requirements and fairness – Natural justice – Standard of review – Reasonableness simpliciter

Howard Johnson Inn v. Saskatchewan Human Rights Tribunal, [2010] S.J. No. 557, 2010 SKQB 333, Saskatchewan Court of Queen’s Bench, September 14, 2010, M.D. Popescul J.

On May 16, 2007, the complainant went to HJI in Saskatoon to visit a friend. While there, the manager and owner (“Mr. Pontes”) approached the complainant and invited her to the office to apply for a summer job. The complainant alleged that Mr. Pontes made inappropriate sexual comments. She filed a complaint with the Tribunal. At the hearing, two former employees of the HJI, R.A. and C.S. also testified concerning prior similar incidents involving Mr. Pontes. This was tendered by the Commission counsel as “pattern or practice” evidence. The Tribunal found the complaint was well-founded and ordered HJI to pay the complainant the sum of $2,000 as compensation for the suffering with respect to feelings, dignity and self-respect. HJI appealed this decision.

The standard of review for appeals from the Human Rights Tribunal was noted to be reasonableness with respect to questions of law arising out of fact-finding.

The Court of Appeal rejected HJI’s argument that the Tribunal had failed to provide procedural fairness by failing to disclose all information in a timely manner. The Court found that the factual assertions made by Mr. Pontes to support the claim of denial of natural justice were obviously incorrect and accepted the evidence of the legal assistant to the Commission concerning delivery of all notices and documents. The Court noted that the evidence of Mr. Pontes was internally inconsistent, incompatible with other known facts and purposely evasive and misleading.

The Court also rejected HJI’s argument that the Tribunal had erred in law in determining that HJI had discriminated against this complainant. The Court noted that the findings of fact, and the conclusions reached by the Tribunal fell within the “range of possible, acceptable outcomes”. There was ample evidence adduced at the hearing on which the Tribunal could be satisfied that the elements of the complaint were made out.

The Court dismissed HJI’s argument that the tribunal had erred in failing to apply the legal test for pattern of practice and similar fact evidence. The Court noted that Section 31 of the Saskatchewan Human Rights Code, 1979, S.S. 1979, c. S-24.1, specifically permitted the Tribunal to accept evidence establishing a pattern of practice and allowed the Tribunal to receive and accept any evidence that it considered, in its discretion, appropriate, whether admissible as evidence in a court of law or not.

The Court also rejected the argument advanced by HJI that failure to allow an adjournment requested five days before the hearing was fatal to the Tribunal’s decision. The Court noted that the decision with respect to the adjournment was within the discretion of the Tribunal. The hearing had been set three months earlier and Mr. Pontes had insisted that he was able to represent himself at the hearing until five days prior to the hearing at which point he requested the adjournment to retain out of province counsel. The Tribunal’s decision to not allow the adjournment in the circumstances was a fair and reasonable exercise of discretion.

In the result, all grounds of appeal were dismissed with costs to the Commission.

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