The Canadian Human Rights Commission's ("Commission") 2004 Annual Report ("Report"), released in late March 2005, emphasizes the "efficiencies" and "effectiveness" gained under its new business model. It will be of no surprise to human rights lawyers that the Report measures the results achieved under this business model primarily in statistical terms, as though a change in the numbers somehow equates with an improvement in substantive human rights in the federal jurisdiction.
A look behind the statistics suggests that in reality access to justice for victims of discrimination is being systematically outsourced, privatized and, in many cases, just plain denied.
The Chief Commissioner's preamble to the Report highlights the fact that, since 2002, the Commission's active caseload has been reduced by 26%, with a 70% increase in the number of final decisions. Is this a good thing? Not if one examines the reality reflected in these figures.
In 2004 over 60% of the 1,237 complaints filed were either "not dealt with" or "dismissed" by the Commission. In 2002, only 49% of complaints were determined in this manner. The sharp increase in this preliminary disposition of complaints reflects a deliberate policy, initiated by the Commission in 2003, to reduce its backlog of cases by directing complainants "to the appropriate body for resolution". However, in many cases complainants are referred to bodies that are not, from a complainant's perspective, "appropriate" for their individual human rights concerns.
Frequently, the Commission refers away human rights complaints arising in the context of unionized workplaces, requiring complainants to file grievances instead. However, the grievance process is often fraught with difficulties for individual complainants.
First, there may be timeliness issues, or the need to obtain union approval and representation as preconditions to the filing of a grievance. Even if a grievance is filed, there is no assurance that the grievance will be taken by the union to arbitration. Finally, some commentators, such as Brian Etherington, have expressed concern that by transferring jurisdiction over claims based on individual human rights from public officials and tribunals to private organizations and procedures, the public interest in achieving justice for individual victims of discrimination will be undermined in order to achieve the private interest in industrial peace shared by unions and employers.
Of even greater concern is the Commission's demonstrated unwillingness to deal with complaints where there is an internal complaint process available in the workplace. For example, if the complainant is a federal government employee, the Commission will not deal with the complaint so long as the employer department has agreed to investigate and deal with the matter in accordance with its own internal policies and procedures.
There are obvious problems with outsourcing to employers the control and management of human rights complaint processes to which they are a party. Even if the department retains external consultants to investigate the complaint, as is often the case, there is clearly an inherent bias in an internal process wherein the employer establishes the policies and procedures to be followed, sets the terms of reference for the investigation, and pays the consultants hired to determine the veracity of discrimination and harassment allegations for which the department may ultimately be liable. Also of concern is the entire lack of quality control over the consultants hired by employers to conduct internal investigations, in terms of them having any particular human rights training or expertise.
If a complainant is dissatisfied with the results of the internal complaint process undertaken in the workplace, she or he can, in theory, request that the Commission reconsider its earlier decision not to deal with the complaint. However, as is readily apparent from the Commission's statistically significant predisposition towards reducing its caseload, the likelihood that the Commission will resurrect a complaint that has already been referred elsewhere is remote indeed.
In 2004 there was a six to one ratio between complaints not dealt with or dismissed by the Commission and those complaints sent to the Canadian Human Rights Tribunal ("Tribunal"). When considered in comparison to the 2003 figures, there was a 37% decrease in the number of cases referred to the Tribunal.
Perhaps even more significant is the fact that complainants who make it to a Tribunal hearing are increasingly likely to find themselves on their own, without participation by Commission counsel in the proceedings. According to the 2004 Report, the Commission now decides, on a case-by-case basis, whether to participate in the formal Tribunal hearing having regard to such factors as "whether the case raises broad policy issues, new points of law, or relates to a major policy concern". The Report makes no mention of factors such as the merit or complexity of the complaint, the extent of the damage caused to the complainant, or the financial capacity of the complainant to retain independent legal representation.
In 2004 there were only 17 hearings before the Tribunal. Commission counsel appeared as a party of record in only six of the 17 cases heard, and three of those six appearances by Commission counsel pertained to proceedings commenced prior to 2004.
The active presence of Commission counsel at Tribunal-sponsored mediation was noted in the Report. In 2004, 77 of the complaints referred to the Tribunal were settled prior to hearing. The confidential nature of the settlement process makes it impossible to determine whether these settlements achieved the purposes underlying human rights legislation. However, the fact that complainants now face the likely prospect of being self-represented at a Tribunal hearing if they do not agree to a settlement has undoubtedly tipped the balance of power at pre-Tribunal mediations towards respondents.
In closing, the Report speaks of the need to reassure "stakeholders" that the "introduction of new measures and more flexible tools will not be pursued to the detriment of the Commission's traditional complaint-handling function, and that there will always be room for litigation in the human rights system". Having reviewed the Commission's 2004 Report, I, for one, am not reassured.
Denise Workun is a partner with Nelligan O'Brien Payne LLP in Ottawa, practising human rights and employment law.
[This article is reprinted with permission and first appeared in the June 2005 issue of The Lawyers Weekly.]