Saskatoon

Gender-based discrimination complaint at Saskatoon art gallery merits court hearing: human rights commissioner

"A proper determination of the complaint on the merits requires a hearing in the Court of Queen's Bench," chief commissioner David Arnot wrote.

Gallery and complainant were asked to attempt mediation one last time

The chief commissioner of the Saskatchewan Human Rights Commission says a complaint of alleged gender-based discrimination made against Saskatoon's Mendel Art Gallery (now known as Remai Modern Art Museum) merits being heard in a public court. (Guy Quenneville/CBC)

Saskatchewan's human rights commissioner says a complaint about alleged gender-based discrimination at Saskatoon's premier art gallery should not be dismissed and has "sufficient merit" to be referred to a public court hearing. 

"A proper determination of the complaint on the merits requires a hearing in the Court of Queen's Bench," David Arnot, chief commissioner of the Saskatchewan Human Rights Commission, wrote in an April 3 letter.

Arnot stopped short of actually referring the case to court. First, he said, the gallery and the complainant should try to come to a settlement. 

"It is my hope that the parties will reach a mutually acceptable resolution," he wrote.

A female former employee of the city-owned Mendel Art Gallery, now called Remai Modern Art Museum, filed a discrimination complaint against the gallery in October 2015. She shared Arnot's letter with CBC News last week.

In her complaint, the woman alleged that the gallery's former CEO and executive director, Gregory Burke, repeatedly undermined and bullied her on the basis of her gender from March 2013 to October 2014. 

Burke has denied the allegations.

A commission investigation got underway in May 2017 and was concluded earlier this year after interviews with more than 20 witnesses. 

Citing the prolonged length of the investigation, Burke successfully petitioned the Court of Queen's Bench to have himself removed as a respondent to the complaint. The commission has appealed that decision, however, and a Court of Appeal hearing has yet to take place.

"Mr. Burke may become a respondent to the complaint again," Arnot wrote. 

Jay Watson, Burke's lawyer, declined to provide comment on Arnot's determination.

Kevin Wilson, the gallery's lawyer, also declined to comment. 

'A last-chance attempt at resolution'

Arnot concluded his letter by directing the complainant and the gallery to try mediation one more time before he potentially referred the complaint to a public hearing. The commission's latest annual report describes this step as "a last-chance attempt at resolution prior to involving the court."

"The mediator, who is independent from the commission, works with the parties to the complaint in an attempt to arrive at a mutually agreeable resolution," according to the report. "Settlement discussions in directed mediation are confidential."

Arnot could still ultimately dismiss the complaint if the complainant rejected a "fair and reasonable" settlement offer, according to his letter.

According to the commission's website, settlement terms could include anything from a letter of apology to compensation for lost wages. 

CBC News has reached out to the commission for an update on the status of the complaint. 

'3 potential narratives' laid out

In his letter, Arnot said "there appear to be at least three potential narratives arising from the evidence."

The first is the narrative laid out by the complainant, as described by Arnot. 

"She asserts that Mr. Burke bullied and undermined her in the workplace," Arnot wrote. "She … asserts that Mr. Burke treated some of her female colleagues similarly. A number of witnesses have provided evidence that they either saw Mr. Burke carry out this behaviour, or were subjected to similar behaviour by Mr. Burke." 

In the second narrative, according to Arnot, "Burke asserts that he was attempting to implement changes during the transition from the closing of the Mendel to the opening of the Remai Modern. Mr. Burke says that he was dealing with a number of challenges in this transition, including inadequate human resources support. According to Mr. Burke, a handful of employees, including [the complainant], resisted this change and his direction. 

"In the case of [the complainant], Mr. Burke asserts that she overstepped her authority on occasion. This prompted Mr. Burke to pursue potential discipline of [the complainant] before she resigned her employment. There is evidence supporting Mr. Burke's version of events." 

The third possible narrative, Arnot continued, is that Burke had difficulty communicating with both female and male staff and that the conflicts were not attributable to gender.

Arnot noted that the commission's ability to determine liability was made difficult by the conflicting witness statements, the lack of sworn testimony and the inability to cross-examine witnesses during the investigation. 

"While I am entitled to consider the probative value of the evidence, there is nothing in the evidence that would compel me to favour the evidence supporting Mr. Burke's version of events over [the complainant's]," Arnot wrote.

ABOUT THE AUTHOR

Guy Quenneville

Reporter at CBC Ottawa, originally from Cornwall, Ont.

Story tips? Email me at guy.quenneville@cbc.ca or DM me @gqinott on Twitter.

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