Employment Investigations and Prejudice: How Inordinate Delay Can End a Complaint

By Emma Banfield, Associate

A recent case out of Saskatchewan examined the effect of delay on an employee who was subject to a human rights complaint for allegedly discriminating against female employees. In the result, the Court decided that the investigation process of the complaint had resulted in inordinate delay, which caused the employee prejudice. The Court therefore decided to dismiss the appeal.

Although this case comes from Saskatchewan, Alberta employers should also be aware that the amount of time an investigation takes can lead to prejudice to the investigated person.

What happened in the case?

The Saskatchewan Human Rights Commission (“ SHRC ”) received a complaint about Mr. Burke, a Museum Director, in 2015. In December 2019, the SHRC was still investigating the complaint, including conducting interviews with fellow employees of Mr. Burke. Citing the inordinate delay in the process, Mr. Burke applied to have the proceedings stayed, or alternatively to have himself removed as a respondent because of the length of the investigation.

The SHRC acknowledged that the intake process and investigation into the complaint against Mr. Burke had taken longer than usual. However, they argued that the matter was complex, and that Mr. Burke was responsible for some of the delay. On that basis, the SHRC opposed the application, and asked the Court to dismiss it so they could continue their investigation.

What did the Saskatchewan Court of Queen’s Bench find?

The Court considered first, whether there had been unreasonable delay. The Court considered an “expected time line” the SHRC sent to Mr. Burke at the beginning of the investigation outlining the expected process. Under those timeline, the entire process should have been completed in less than a year and a half, and the investigation process should have been completed within nine months. The Court noted that as of December 2019, the investigation was still not complete.

The Court also looked at how long other complaints before the SHRC usually took to resolve, as well as processes in British Columbia. Noting that “the current case has already taken longer than what was in 2011 considered “excessive and unacceptable” to bring a matter to completion of a hearing” the Court found that the delay was excessive. Further, the allegation of delay on Mr. Burke’s part was not supported by the evidence.

The Court further found evidence of prejudice to Mr. Burke. He lost an employment opportunity because of the outstanding allegations, suffered health problems due to the publicity. The stigma to Mr. Burke’s reputation caused significant negative repercussions, including the loss of an employment opportunity, fit into the Supreme Court definition of significant prejudice.
Although the Court recognized the work of the SHRC as important, the Court found that the public is also interested in ensuring investigations are conducted and concluded in a timely fashion.

Takeaways

Although this case comes from Saskatchewan, Alberta employers should also be aware that the amount of time an investigation takes can lead to prejudice to the investigated person. Although the SHRC argued its investigations are “neutral and thorough”, the Court found that thorough investigations do not justify inordinate delay. The Court also held that when an investigation takes too long, and the focus changes over time, the neutrality of the investigation is brought into question.

This case is a reminder that respondents in an investigative process, including by human rights commissions, are owed procedural fairness, failing which the Courts are prepared to intervene. The mere fact that an investigation is intended to protect the rights of complainants is not enough to remove the necessity to be fair to the investigated employee.

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.