Executive Summary: Key Legal and Evidentiary Issues

• Scope of the Saskatchewan Human Rights Commission’s gatekeeping role under s. 29(1)(b) of The Saskatchewan Human Rights Code, 2018 when dismissing a complaint without investigation
• Characterization of “English only” workplace language policies and whether language, as used in this context, is inextricably tied to protected grounds such as race, ancestry, place of origin or nationality
• Application of the Moore test at the intake stage, particularly whether there were reasonable grounds to believe that Ms. Casila suffered an adverse impact connected to a protected characteristic
• Failure by the Commission to address central allegations that the English-only policy was racially motivated and prompted by discriminatory customer complaints about non-English languages
• Misinterpretation of s. 12 of the Code by focusing only on denial of service under s. 12(1)(a) and not considering broader discriminatory treatment in the provision of services under s. 12(1)(b)
• Adequacy and reasonableness of the Commission’s written reasons under the Vavilov framework, including omissions concerning key evidence and potentially relevant Code provisions

Factual background

Vanessa Casila, a Filipina whose first language is Tagalog and who identifies strongly with her Filipino culture, attended the Starbucks outlet at Royal University Hospital (RUH) in Saskatoon, operated by the Saskatchewan Health Authority (SHA). She attempted to place her order in Tagalog. The Starbucks employee told her that all transactions had to be conducted in English and that failure to do so would result in a formal reprimand from the manager. Consequently, she did not proceed with her preferred Tagalog-language order. Ms. Casila then filed a complaint with the Saskatchewan Human Rights Commission. She alleged that SHA had adopted a blanket “English only” policy at the RUH Starbucks that prohibited employees from communicating with each other or with the public in any language other than English or French, without exception. She further asserted that many employees at this Starbucks were Tagalog-speaking Filipinos and that the policy particularly affected this group as well as Filipina customers like herself. In her complaint, she described her use of Tagalog as intimately tied to her Filipina identity and a way of preserving her minority culture in Canada. She also alleged that the policy arose, at least in part, from racist customer complaints about hearing non-English languages being spoken by Starbucks staff. One such email, sent to SHA in December 2022 and attached to her complaint, demanded that SHA enforce a strict English-only rule and included “uncouth and intolerant commentary” about employees speaking other languages.

The English-only policy and related correspondence

While the full text of SHA’s internal policy was not actually before the Commission at the intake stage, Ms. Casila provided a description of it and attached a letter that had been sent by SHA to an RUH Starbucks employee. The letter stated that employees “must always speak only in English at the kiosk so as to not exclude coworkers and customers.” From Ms. Casila’s perspective, this showed that the rule was all-encompassing and without exceptions, extending beyond task-related communication to a general ban on speaking other languages in front of customers and colleagues. She argued that in characterizing non-English languages as exclusionary or disrespectful, the policy implicitly labelled Tagalog speakers—and by extension Filipino customers—as rude. Before the reviewing court, SHA later produced the relevant policy language, but the judge emphasized that this wording could not be considered because it had not been put before the Commission, which had chosen not to investigate the complaint. The challenge before the court therefore focused on the sufficiency of the material the Commission actually had when it decided to decline the complaint.

The Commission’s screening decision under the Code

The Commission dismissed the complaint at the intake stage under s. 29(1)(b) of The Saskatchewan Human Rights Code, 2018, stating that Ms. Casila had not provided sufficient evidence showing reasonable grounds to believe that discrimination based on a prohibited ground had occurred. In doing so, it referenced the well-known Moore test for discrimination, which requires proof that the complainant has a protected characteristic, experienced an adverse impact, and that the protected characteristic was a factor in that impact. The Commission invited Ms. Casila to submit additional material. She responded with a detailed letter, citing authorities to argue that language can be a factor in discrimination, particularly when it functions as a conveyor of culture and ethnic identity rather than merely a neutral communication tool. She contended that the English-only policy caused an adverse impact on her as a Tagalog-speaking Filipina customer because she could not interact in her first language and because the rule was tied to racist complaints about Filipino employees speaking Tagalog. Despite this, the Commission again declined to accept the complaint. It acknowledged that, in some circumstances, language could be protected where it is inextricably bound up with nationality and ethnicity, as recognized in earlier decisions such as Welen. However, it relied on authorities like Fletcher to say that language may also be simply a transactional means of communication, and in that context is not itself a protected ground. It also reasoned that ss. 9 to 19 of the Code had not been engaged because Ms. Casila had not been denied service or access under s. 12 and was not an SHA or RUH employee for the purposes of s. 16.

Legal framework: gatekeeping function and the Moore test

On judicial review, the court accepted that the applicable standard of review of the Commission’s decision was reasonableness, following the principles in Canada (Minister of Citizenship and Immigration) v Vavilov. The judge summarized that a reasonable decision must show internally coherent reasoning and be tenable in light of the legal and factual constraints, including the governing statutory scheme, relevant common law, the evidence, and the impact on the individual. Under s. 29(1)(b) of the Code, the Commission acts as a gatekeeper. It must determine whether the complainant has provided “sufficient evidence that reasonable grounds exist” to believe there has been a contravention, a standard described as a credibly based probability below the civil balance-of-probabilities standard. The court framed the Commission’s task as assessing whether the evidence raises reasonable grounds to believe that the Code has been breached, applying the Moore discrimination criteria at this preliminary stage. It emphasized that the Commission is not deciding the merits of the complaint, but rather whether further inquiry or investigation is warranted.

Language, culture, and discrimination analysis

The central legal question argued before the court was whether, on the facts alleged, the English-only policy could amount to discrimination connected to protected grounds such as race, ancestry, nationality or place of origin. The court reviewed the Commission’s prior reasoning in Welen, which recognized that language is often “the conveyor of culture” and in many circumstances is “inextricably bound” with nationality and ethnicity, making it effectively protected through those grounds. It then considered the more nuanced approach in Fletcher Challenge, which drew a distinction between language as an expression of culture and language as a learned communication skill used simply to accomplish work tasks. Further, the judgment referenced more recent decisions, including Dubois v Farfalla Hair & Esthetics and Macasiab v Cypress Railing and Gates Ltd., which similarly held that where language is used only for functional communication at work, it may be “unrelated to culture,” but also recognized that unreasonably prohibiting the use of a first language, especially based on unfounded suspicions about what is being said, can raise discrimination concerns. Applying this body of law, the court accepted that the Commission’s conclusion on the narrow question—namely, that language in this instance might not, on its own, clearly meet the protected-ground requirement—was not, by itself, unreasonable. The Commission’s references to Welen and Fletcher were not out of step with the legal context, and its brief treatment of the language issue, standing alone, would not have rendered the decision unreasonable.

Unaddressed allegations and misapplication of section 12

However, the reviewing judge identified more serious problems in the Commission’s handling of the complaint. Crucially, the Commission failed to engage with Ms. Casila’s core allegation that SHA’s English-only policy was racially motivated and prompted by prejudiced customer complaints about staff speaking non-English languages. She had provided an example email containing expressly intolerant comments and asking for a strict English-only rule, and she argued that Filipino, Tagalog-speaking employees were disproportionately affected, with Filipina customers like herself experiencing indirect discriminatory impact. The decision did not grapple with this alleged racist motivation or the broader context in which the policy was adopted. The judge found this omission troubling, given that discriminatory purpose or stereotypical assumptions underlying a policy are central to assessing whether there are reasonable grounds to believe a Code violation may have occurred. The court also concluded that the Commission had misread s. 12 of the Code. In its brief decision, the Commission treated s. 12 as only protecting against outright denial of service, reasoning that because Ms. Casila was able to obtain service in English, s. 12 did not apply. The judge explained that this analysis dealt exclusively with s. 12(1)(a), which covers denial of access or services, but ignored s. 12(1)(b), which prohibits broader forms of discriminatory treatment in how services are provided. Harassment and other discriminatory conduct in the course of providing services fall under this paragraph. By focusing only on whether she was denied access and failing to consider whether she might have experienced discriminatory treatment “with respect to” the service, the Commission applied an unduly narrow reading of the provision and failed to consider a key potential ground for the complaint.

Outcome and implications of the decision

Taking these deficiencies together, the court held that the Commission’s decision did not meet the standard of reasonableness. While its assessment of language as a potentially non-protected factor in purely transactional communication was defensible, its reasons were too brief and omitted analysis of essential aspects of the complaint, particularly the alleged racist impetus for the English-only policy and the broader scope of s. 12(1)(b) of the Code. The judge also noted that the Commission had not addressed s. 30, a provision this court has previously found prudent to consider in similar contexts, although no definitive view was expressed on its application here. Ultimately, the court quashed the Commission’s decision and remitted the complaint back to the Saskatchewan Human Rights Commission for reconsideration in accordance with the legal framework set out in the judgment. As a result, the successful party in this judicial review is the applicant, Vanessa Casila. The decision does not grant any damages or quantify costs in her favour, and from the text of the judgment the total monetary award and costs ordered, if any, cannot be determined.