Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights – Discrimination – Harassment – Investigations – Labour relations – Universities – Judicial review application – Premature – Estoppel and res judicata – Standard of review – Reasonableness simpliciter
University of Saskatchewan v. Peng,  S.J. No. 327, 2013 SKQB 188, Saskatchewan Court of Queen’s Bench , May 16, 2013, G.M. Currie J.
In July 2010, the Respondent employee (“Ms. Peng”) filed a complaint with her employer, the Applicant (“University of Saskatchewan”) alleging harassment based on her race, colour, creed and religion. Ms. Peng also made the same complaint to the Saskatchewan Human Rights Commission in April 2010 but the University did not learn of it until fall 2011.
After Ms. Peng made her complaint, the University appointed an external investigator, Mr. Robertson. Mr. Robertson conducted an investigation and issued a report in October 2010. He concluded that errors had resulted in Ms. Peng being treated harshly but no incidents were related to Ms. Peng’s race. He concluded that the University had not discriminated against Ms. Peng.
Ms. Peng asked her union to grieve the University’s decision and, in early 2011, the union decided not to. Ms. Peng then brought an application to the Saskatchewan Labour Relations Board (the “Board”) attempting to compel the union to grieve the University’s decision. In February 2012, the Board decided the union had not breached its duty and therefore dismissed Ms. Peng’s application.
In April 2012, the University applied to the Human Rights Commission asking for Ms. Peng’s complaint to be dismissed summarily. The University argued that the substance of the complaint had already been dealt with in another proceeding; namely, the University’s investigation and the Board proceeding. The University also argued that there was no reasonable likelihood that an investigation would find a contravention of the Human Rights Code. In October 2010, the Commission concluded that Ms. Peng’s complaint had not been adequately dealt with by Mr. Robertson’s investigation or the Board proceeding. The Commission was also not able to accept that an investigation had no reasonable likelihood of finding evidence of a contravention.
The University applied to the Court seeking judicial review of the Commission’s decision. The parties agreed, and the Court accepted, that the standard of review was reasonableness.
Ms. Peng objected to the application for judicial review. She argued that the application was premature because the Commission had not yet initiated an investigation. The Court rejected her argument. The Court then considered the merits of the application.
First, the Court considered the University’s argument that the substance of the complaint had already been dealt with. The Court considered the Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, relating to a multiplicity of proceedings in the context of BC human rights legislation. The Commission had considered the Figliola decision. The Commission concluded that the Saskatchewan human rights legislation contemplated a multiplicity of proceedings and the Figliola decision did not apply. The Court had to determine whether the Commission’s decision was reasonable.
The Court considered whether the Commission’s decision was defensible on the facts and on the law, in respect of the University’s internal investigation. The Court held that the range of acceptability and defensibility was narrow because the Commission’s decision was driven by an interpretation of the law. The Court held the decision was transparent and intelligible. The Court also held the decision was not fundamentally inconsistent with the facts or the applicable law. The Court held the decision was reasonable.
Second, the Court considered the argument that the Board had dealt with the substance of Ms. Peng’s complaint. The Commission had applied the Figliola decision and concluded that the Board had not dealt with the underlying grievance and therefore had not dealt with the substance of Ms. Peng’s complaint to the Commission. The Court held the decision was reasonable.
Third, the Court considered the argument that the Commission erred when it concluded that an investigation had no reasonable likelihood of finding a contravention of the Code. The Commission had rejected this argument because an investigator would have the choice to adopt parts of Mr. Robertson’s report. The Court concluded that this decision was reasonable.
The Court dismissed the University’s application for judicial review. The Court ordered that each party bear their own costs.
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.
To stay current with the new case law and emerging legal issues in this area, subscribe here.