In a Court of Queen’s Bench decision issued December 31, 2019, Judge Brenda Hildebrandt cited “principles of procedural fairness.”
“I find that there has been inordinate delay in the SHRC Proceedings and that Mr. Burke has suffered prejudice as a result thereof,” Hildebrandt wrote. “This finding is sufficient to grant a stay of the Proceedings insofar as they relate to Mr. Burke.”
“The complaint was made over four years ago, and the investigation is not yet complete,” Hildebrandt notes.
Canadian case law (Hildebrandt cites the Supreme Court of Canada’s 2000 decision in Blencoe v. British Columbia) requires that in order to grant a stay of proceedings “there must be proof of significant prejudice which results from an unacceptable delay.”
Judge Hildebrandt found that the SHRC investigation “has attached a stigma to Mr. Burke’s reputation that has caused significant negative repercussions, including the loss of employment with the Auckland Art Gallery.” Hildebrandt adds: “His circumstances fit within those recognized by the Supreme Court as constituting significant prejudice.”
The Remai Modern and its governing bodies will remain part of the ongoing SHRC investigation.
Lawyers for Gregory Burke, and Burke himself, responded positively to the ruling. “I was pleased that [the judge] went over all the material in detail and set out the facts accurately, in our view,” said Jay Watson, Burke’s lawyer in the case.
Watson says point #20 from Hildebrandt’s ruling is especially notable. That point reads that “there were no statements containing sexual content nor any overt acts of gender or sex-based discrimination alleged in the complaint.”
When asked for comment, Burke referred Canadian Art to a three-part public statement he issued on Twitter on January 2, 2020.
“I am greatly relieved that a complaint against me, falsely alleging discrimination of a former employee on the basis of gender, has been stayed,” Burke wrote in his public statement. “My time as the inaugural CEO of Remai Modern remains a career highlight,” Burke affirmed, adding, “I look forward to resuming my career in 2020.”
The Saskatchewan Human Rights Commission has filed an appeal, and did not respond to requests for comment.