Dismissal For Delay In A Human Rights Complaint

Case Comment: Burke v Saskatchewan Human Rights Commission, 2019 SKQB 339

In 2015, the Saskatchewan Human Rights Commission (the "Commission") received a complaint naming Gregory Burke as well as two corporate employers as respondents. At the time, Mr. Burke was the Museum Director for what is now the Remai Modern, and he was alleged to have discriminated against female employees.

The Investigation and Court Application

In 2019, four years after the Commission commenced an investigation into the complaint as part of the standard process, Mr. Burke brought an application to the Court of Queen's Bench seeking an order granting a stay of the entire proceedings or, alternatively, seeking an order both granting a stay of the proceedings to the extent they relate to him and removing him as a respondent. Mr. Burke argued that the investigation process resulted in inordinate delay, which caused him prejudice, and as a result the complaint against him ought to be dismissed.

In a decision dated December 31, 2019, the Court held that the four years taken to only partially conduct an investigation resulted in ordinate delay and that Mr. Burke had suffered prejudice as a result of the delay, which was sufficient to grant a stay of proceedings insofar as they involved Mr. Burke as an individual respondent. The Court went on, however, to provide commentary on the Commission's decision to expand the investigation's scope midway through the process.

Inordinate Delay

Although the Commission argued that the matter was "complex" and suggested some delay was attributable to Mr. Burke, the Court held that the complexity was only added when the Commission expanded the scope of the investigation. Moreover, the complainant was described as being uncooperative, having delayed scheduling interviews with the Commission and declining to participate in the mediation process.

As compared against the Commission's publicly stated expectation that unresolved complaints would normally proceed to a hearing within approximately 18 months from the point of filing, as well as the average length of time for a complaint to proceed to a hearing in other provinces, the Court concluded that "it is not difficult to find the delay unreasonable, given that the investigation had been ongoing for nearly four years and at the time of arguing the application was not yet complete."

Prejudice Resulting from the Delay

With respect to whether Mr. Burke had been prejudiced as a result of the...