Courts can hear human rights complaints in wrongful dismissal actions: Manitoba court

Manitoba judge blasts slow pace of human rights commission in ruling that could open the door to more human rights-based employment law litigation in the courts
|employmentlawtoday.com

A Manitoba court has opened the door for human rights complaints to be heard by the courts rather than only by human rights commissions. The decision could have a significant impact on employment law as employees could decide to turn to the courts — who are faster and tend to award higher damages than a human rights commission — when an employer breaches the human rights code.

Justice Colleen Suche of the Manitoba Court of Queen’s Bench had harsh words for the province’s human rights commission in her decision in

Sparrow v. Manufacturers Life Insurance Co.

Robert Sparrow was employed as a facility technologist from April 2001 to January 2003. During that time he developed an illness that affected his eyesight. Sparrow sought treatment for the condition, which was eventually diagnosed as blepharospasm in January 2003.

He was dismissed from his employment on Jan. 23, 2003. Sparrow said he was fired because of his eyesight problems and that he was attempting to seek long-term disability. His employer maintained it was due to corporate restructuring.

In April 2003 Sparrow filed a complaint with the human rights commission, alleging his employer had failed to accommodate his illness.

In January 2004, after hearing nothing from the commission, Sparrow launched a legal action against his employer and Manulife Financial, the company’s disability insurer. He alleged his disability had not been accommodated and he was seeking general damages. He also sought a declaration that he was totally disabled for insurance purposes or, in the alternative, a declaration that he is entitled to be accommodated within his employment.

In this case, Justice Suche was simply ruling on a motion brought forward by the employer to strike Sparrow’s claim — or at least parts of the claim — because it was an abuse of process. It said the claim concerned matters that were within the exclusive jurisdiction of a human rights adjudicator appointed under the

Human Rights Code

.

In the alternative, the employer sought a stay of proceedings on the grounds that there are proceedings elsewhere — the complaint filed with the human rights commission in April 2003 — that involve essentially the same matter. If both were allowed to proceed, it would be an unfair process, the employer argued.

The court said the basic question it had to grapple with was whether or not it had jurisdiction to hear an action for wrongful dismissal based on a breach of the

Human Rights Code

. It’s a question that has been a matter of controversy over the years, said Justice Suche.

She said Sparrow was party to a contract of employment, from which a common law right of action arises. That right can be enforced by the courts. It looked at other human rights decisions brought up by the employer, mainly

Bhadauria v. Seneca College of Applied Arts & Technology

, in which the Supreme Court of Canada concluded that no independent right of action is created by the prohibition against discrimination existing in Ontario’s

Human Rights Code

.

The

Bhadauria

decision was different from the facts in

Sparrow

in a number of critical areas, Justice Suche said. First, Bhadauria was not an employee of Seneca. She had applied for a job and then claimed she was not hired because of her race. Sparrow’s situation was quite different. He was party to a contract of employment, from which a common law right of action arises. That right can be enforced by the courts.

Second,

Bhadauria

was an Ontario decision and Ontario’s human rights legislation grants exclusive jurisdiction to decide all issues relating to a breach of the legislation to an adjudicator or a panel appointed under the legislation.

Human rights law ‘special’

The Manitoba Court of Queen’s Bench said the kind of harm alleged by Sparrow — discrimination in employment — is exactly what the code was designed to address.

Justice Suche said human rights legislation is “special” and often described as “almost constitutional.”

“It is paramount to any other legislation,” she said. “Thus, human rights legislation cannot be contracted out of, and is to be interpreted broadly, to give effect to its objectives.”

She said there is no question the code intends to incorporate its provisions relating to employment into every contract of employment it governs. She said the employer in this case did not contest that idea — it was merely arguing the only remedy available to Sparrow was through the commission.

But Justice Suche said there is nothing in the legislation that excludes court action. In addition, wrongful dismissal is an existing common law right over which courts do have jurisdiction.

“Employees who have claims for wrongful dismissal, which include a breach of the code, would be required to launch two separate proceedings to determine or enforce rights arising from one contract of employment,” said Justice Suche. “This would not make for a good law, or provide appropriate remedies.”

She said an employee’s rights arising under the

Human Rights Code

are not limited to a complaint to the commission, and an employee is not prevented from bringing an action in court to enforce rights arising within an employment relationship. She dismissed the employer’s motion and said she would allow a court to tackle the case.

Four-month stay

But the court did grant a four-month stay to see if the Human Rights Commission would take any further action on Sparrow’s complaint. While she said courts are open to hearing human rights complaints in wrongful dismissal actions, Justice Suche said it would be unfair if an employer had to fight two complaints at the same time.

“For both matters to proceed in tandem, there is a real possibility that different interpretations and different results could occur,” said Justice Suche.

She said there would be no prejudice to Sparrow in giving the commission a bit more time to complete its process.

“My concern, of course, is that I do not have any information as to how, when (or even if) the commission will proceed with the complaint,” said Justice Suche. “It hardly seems fair to stay these proceedings to await the outcome of a process that might never proceed. I think the appropriate remedy is to grant a conditional stay of proceedings for four months, to allow some further information to be obtained, or progress to be made, with the complaint.”

She said if the case was referred to adjudication by the commission, or otherwise appeared to be near resolution, then a further stay might be appropriate.

Harsh words for the Human Rights Commission

Justice Suche didn’t pull any punches in her criticism of the commission and the turtle’s pace it appeared to be working at.

She said an investigation is presumably underway by the commission, but to Sparrow’s knowledge nothing has happened in the 18 months between the time he filed his human rights complaint and the time the Manitoba Court of Queen’s Bench made its ruling.

“I pause to say that is seems incredible that an investigation into a straightforward complaint of discrimination in employment cannot be concluded in a year and a half,” said Justice Suche. “This is particularly so given the statutory obligation of the commission to investigate a complaint as soon as reasonably possible. The situation is regrettable and should be something of an embarrassment to the commission, an agency that was created to provide a simple and cost effective manner of determining individuals’ rights under the code.”

She said if she had “any confidence” that the complaint would be processed in a timely way, she would have had no hesitation in granting a stay pending the resolution or completion of the human rights process.

For more information see:

Sparrow v. Manufacturers Life Insurance Co.

, 2004 CarswellMan 535, 2004 MBQB 281, 2005 C.L.L.C. 230-004 (Man. Q.B.)

Bhadauria v. Seneca College of Applied Arts & Technology

, 1981 CarswellOnt 117, [1981] 2 S.C.R. 181 (S.C.C.)

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