Being both employers and service providers, universities face exposure to human rights complaints on dual fronts. Universities must adhere to human rights legislation and be prepared to deal with accommodation requests from employees. However, universities are also prohibited from discriminating against students and must be prepared to respond to the increasing demand for accommodation from students.

The recent decision of Dunkley v. UBC (2015) required the University of British Columbia to provide nondiscriminatory access to educational services beyond the classroom and into the realm of hybrid learning environments - residencies and practicum placements. The failure to accommodate the deaf complainant who required an interpreter in that case, resulted in an award of damages for injury to her dignity, feelings and self-respect in the amount of $35,000 (in addition to various other costs and lost wages).

The range of remedies available to a human rights complainant are broader than those typically available through the civil litigation process. For example, human rights commissions have the power to reinstate employees and award back-pay to the date of their termination. Given this potential exposure, human rights complaints are a reality which universities must be prepared to manage.

PUT YOUR BEST FOOT FORWARD

It is not uncommon for the full processing and hearing of a complaint to last two or more years - having a complaint dismissed at an early stage can save significant time, stress and resources.

Human rights commissions have significant flexibility to dismiss a complaint during the investigation process and often, beyond that. The initial written response to a complaint is the first and best opportunity for a respondent to run from the last alleged instance.

Some human rights commissions have the discretion to extend this filing deadline where they consider it reasonable to do so. Failing to file in time because a complainant is not aware of the right to do so is not grounds for an extension.  Consider whether the university will be prejudiced by the passage of this time limit – are there issues contacting witnesses who no longer work for the university? Have documents been lost over to request the complaint be dismissed, so it is important to put your best foot forward and consider the following factors.

1) Limitation periods

Each Atlantic Province has a one year limitation period for filing a human rights complaint with respect to an act of discrimination. If a complainant has not adhered to this timeline, it should be highlighted in the initial response. If the complaint is based on continuing discrimination (successive acts of discrimination of the same or similar character), the one year limitation clock will begin time? Etc. Mapping a timeline of events and highlighting limitation period problems is a simple process which can effectively remove part or all of the allegations contained in a complaint.

2) Parallel proceedings

Where a human rights complaint has already been appropriately dealt with in another proceeding, this may justify its dismissal.

In University of Saskatchewan v. Saskatchewan (Human Rights Commission) (2014) a student advised the university that he had a learning disability and required accommodation. The student failed to achieve and maintain the required academic standards and was forced to discontinue his studies. He unsuccessfully appealed this decision through the university's internal appeal board, where he alleged discrimination on the basis that he had not been accommodated. The student was represented by counsel and made written and oral submissions at the appeal board hearing.

The student also filed a human rights complaint and, following the internal appeal board's decision, the university applied to have the complaint dismissed on the basis it had been appropriately dealt with in another proceeding. While the Saskatchewan Human Rights Commission denied the application, on judicial review, the Court of Queen's Bench quashed that decision, finding the matter had been dealt with and noting, "Just because a legal matter bears a human rights aspect does not mean the Commission must deal with it in its entirety and to the exclusion of other properly constituted tribunals."

It is also common for human rights violation allegations to be dealt with in a grievance proceeding. It is well established that arbitrators have concurrent jurisdiction with human rights commissions in considering human rights legislation violations.

In such instances, reference to a parallel proceeding which has taken place (or a more appropriate avenue for appeal which ought to have taken place) should be highlighted in a response.

3) Frivolous, vexatious or made in bad faith

Human rights commissions may dismiss a complaint where it is frivolous, vexatious or made in bad faith. Does the complaint contain clear mischaracterizations, exaggerations or easily disproved allegations? Has the complainant met the burden of identifying discrimination on the basis of a protected ground and adverse treatment? Does the complaint have no reasonable chance of success?

After receiving a complaint, it is important to speak to those involved and develop a clear narrative which addresses all allegations the complainant has made. Leaving allegations uncontested means the human rights commission only has the complainant's side of the story. This is the time to thoroughly canvas any supporting documentation which can be provided such as emails with the complainant, accommodation plans, performance evaluations, etc.

IS MEDIATION APPROPRIATE?

Mediation is available throughout the complaint process and is generally encouraged by human rights commissions. This can be a good way for parties to learn about where the other stands and consider possible solutions and settlement.

When a complainant has unrealistic demands, human rights legislation in New Brunswick and Prince Edward Island allow for the dismissal of a complaint where the human rights commission determines that the complainant has declined a fair and reasonable settlement offer.

WHAT CAN STEWART MCKELVEY DO FOR YOU?

Beyond the initial written response, a complaint may also require a more detailed investigation which can involve commission investigators interviewing university management and other employees who are named in the complaint. Ultimately, the commission will decide whether to proceed to a formal hearing of the complaint which may involve multiple witnesses, evidence and the presentation of a legal argument. Stewart McKelvey can provide experienced representation throughout the investigation and the hearing process.

When dealing with accommodation requests, universities must accommodate both employees and students to the point of undue hardship. Determining whether that point has been reached can be a complicated analysis and Stewart McKelvey can provide you with the strategic legal advice required.

Ultimately, prevention is the best medicine. We can also help you to develop clear policies and guidelines to avoid human rights complaints in the first place, and put you in the best position possible to refute any complaints down the line.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.