Human rights commissions across Canada are adapting to an ever changing society
The following is the third in a three-part series on the P.E.I. Human Rights Commission.
CLICK HERE FOR PART 1, THE PRICE OF HUMAN RIGHTS
CLICK HERE FOR PART 2, HUMAN RIGHTS COMMISSION HISTORY
Decades after they were created, human rights commissions across the country are evolving to make sure Canadians’ rights are protected.
But dealing with human rights complaints is no small task, such as in Prince Edward Island where the Human Rights Commission gets about 1,500 phone inquiries a year from people who have concerns about their rights.
Only a fraction of those will lead to complaint investigations, and even fewer will ever end up in front of a commission panel for a hearing.
P.E.I. Human Rights Commission executive director Greg Howard said there is a settlement success rate of more than 90 per cent and it’s very unusual for complaints to be referred to a panel hearing.
“That tells you how much we try to emphasize settlement and the uncertainties of the panel process,” he said.
But even though most cases don’t make it to a hearing, the P.E.I. Human Rights Commission has more than 100 complaint files underway every year and the complaint process can take time.
It’s a process Halifax lawyer Randy Kinghorne, who has worked on several human rights complaint cases in Nova Scotia, has seen take years in some cases. He said that’s too long.
“Everybody, I think, has agreed on that,” he said.
Kinghorne said in any other litigation, or claim outside the human rights commission, the complainant has to decide what the value is to them, they hire a lawyer, go to court and fight for it.
But with the human rights commission, the process isn’t the same because the commission represents the complainant at the board of inquiry, he said.
“There’s no incentive to judge the value of your own case and decide whether or not it’s worth proceeding with,” he said.
Kinghorne said even if there is a finding a complaint was made in bad faith, the respondent can’t recover any of their costs.
“You still have no recourse as the proper respondent,” he said.
Although he’s not opposed to the system, Kinghorne said it would be better if there were other methods of recourse a complainant had to go through before the commission process, such as labour arbitration boards.
“If I had one major complaint about the human rights commission (it) is that it really tries to be everything to everybody,” Kinghorne said.
Wayne MacKay, a professor at the Schulich School of Law at Dalhousie University in Halifax and a former executive director of the Nova Scotia Human Rights Commission, said commissions around the country have been making changes.
MacKay said some provinces, such as Ontario and British Columbia, have a process that allows a complaint to move straight to a tribunal without going through an investigation first.
While he thinks progress is being made, MacKay said he isn’t convinced eliminating a commission’s gatekeeper role is a good thing because people then have to represent themselves or hire a lawyer and there is no confidentiality.
“That’s one of the problems potentially with the direct tribunal access is that it’s more expensive for complainants and it is public,” he said.
MacKay said that even with different tribunals there is a need for human rights commissions in some form, although they could be updated to deal with current issues, such as providing balance for everyone involved.
There are improvements that can be made to human rights commissions, but as long as they continue to evolve they will still be valuable for their roles in a fair, less discriminatory society, he said.
“They’ve been fairly successful on parts of their mandate, not so successful on others but as institutions go I think they’ve done a fairly decent job,” he said.
MacKay said there are a lot of people who don’t have a positive view of human rights commissions, often with the opinion that respondents aren’t treated fairly in the process.
“Sometimes that’s just a lack of proper information and sometimes it’s true.”
Among the provinces that have made changes is Saskatchewan where Mary Eberts, human rights chair at the University of Saskatchewan, said her province left the commission in place with a mandate to educate the public and investigate complaints.
But changes to Saskatchewan’s human rights laws gave the commission’s chief commissioner the power to force settlement or throw out a complaint, she said.
“So basically they’ve kind of made the chief commissioner the king of whether a complaint can go forward or not,” she said.
Eberts said the Saskatchewan Human Rights Commission has always been interested in negotiating settlements, but under the current system there are fewer investigators, which means the chief commissioner can force people to settle without knowing if the case has any merit.
If one side has more resources to look at the strengths and weaknesses of a case, it can give that party an advantage, she said.
“The people with the big pocket books can resist a settlement.”
That’s what Eberts said happened in Ontario where there is no investigation involved in the complaint process.
In Ontario it’s the complainant who has to bear the costs associated with the complaint, she said.
“I think it penalizes the human rights complainant.”
In P.E.I., the human rights commission investigates complaints and can dismiss them or eventually send them to panel hearings, if the two sides can’t reach a settlement.
Eberts said she doesn’t think there is much wrong with models like P.E.I.’s, which are fair to the complainant, although they are often underfunded and could do a better job of managing their workloads.
“A combination of better government funding and better management of the workload by the commission would have made that old model work much better,” she said.
When it comes to the P.E.I. Human Rights Commission, any changes would have to go the through the legislative assembly with amendments to the Human Rights Act. Howard said the system was revamped in 1998 and he didn’t know of any proposed changes to the way the process works on the Island.
“Other provinces are changing it to make it look more like ours,” he said.