The following is the second 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 3, EVOLUTION OF HUMAN RIGHTS COMMISSIONS
When UPEI instituted a mandatory retirement policy, Thomy Nilsson knew it was going to discriminate against him when he eventually reached retirement age.
But Nilsson said there was nothing he could do about it until he turned 65 because he hadn’t been discriminated against yet.
“It’s sort of like you can’t charge a person with attempted murder until he attempts to murder you,” he said.
Eventually, he was forced into retirement and Nilsson joined a group of UPEI employees who took their complaint to the Human Rights Commission, got their jobs back and were awarded a settlement.
Nilsson is one of hundreds of Islanders the P.E.I. Human Rights Commission has dealt with since it was founded 36 years ago.
P.E.I. was the last jurisdiction in Canada to pass human rights legislation, which it did in 1968 with An Act Respecting Human Rights. But it wasn’t until 1976 that the province established the Human Rights Commission to administer the Human Rights Act, investigate complaints and attempt settlements.
Initially, if settlement attempts failed, the commission would refer complaints to the minister responsible for the Human Rights Act, who could then appoint a board of inquiry to continue the process.
Over the years, the commission adapted to changes in the Human Rights Act, including the addition of age and physical disability.
The commission also had to deal with a change to the definition of political belief in 1989, which would lead to a peak of 658 political discrimination complaints in 1997 after a change in government the year before.
That was up from 12 in 1996 and none in 1995.
By the time it was all said and done, the commission received more than 800 complaints related to the change in government.
These days, discrimination complaints related to employment make up the bulk of what the commission deals with.
Greg Howard, the commission’s executive director, said the commission panel handles about three or four complaints a year, although some may settle before a hearing opens. A lot more get settled before they even get to the hearing process, he said.
“It is very unusual for them to be referred to a hearing.”
According to the commission’s annual reports, the organization gets more than 1,000 phone inquiries every year from people concerned about their rights.
Howard said the commission has about 120 files open at any time and the commission gets about 55 or 60 new complaints every year.
“If only half a dozen are being referred to a hearing, you know that the settlement success rate is well over 90 per cent,” he said. “That tells you how much we try to emphasize settlement.”
There is also a lot of uncertainty about what will happen when a complaint goes before a panel for a hearing, Howard said.
“You never know what an adjudicator is going to do.”
That uncertainty is something Noel Ayangma has experience with, as both a complainant in several cases and an agent representing Aritho Amfoubalela in his case involving the French Language School Board.
Ayangma says P.E.I.’s entire complaint process is flawed, including the potential for delays, a lack of minority commissioners and commission panel members who are not knowledgeable in the law.
Ayangma said progress has been slow in dealing with discrimination in P.E.I. because the system allows it to happen.
“Discrimination is everywhere,” he said.
As for how Nilsson felt about the process, he said it took four years to get through his complaint after many delays that were largely for the convenience of the lawyers.
“The fact that I was put out of a job seemed to be of minor importance to a lawyer who could simply say, ‘we’ll have the hearing six months down the road’,” he said.
Delays can be costly, as was seen in Amfoubalela’s case in which the respondent racked up more than $228,000 in legal bills.
Howard said one thing parties should realize when it comes to a panel deciding the outcome of a complaint is commissioners can only order costs for a complainant and not the respondent.
“It’s generally all or nothing,” he said.
When it comes to panel hearings, the Human Rights Commission can carry a case for a complainant who doesn’t have their own legal representation.
Howard said that came about after Ann Magill filed a sexual harassment complaint, hired a lawyer and went through a hearing after which she got a small award for damages, which wasn’t enough to pay her legal fees.
The problem led to the change that allowed the commission’s executive director to carry a case for a complainant, Howard said.
Costs can be one of the things that stands in the way of settlement, but Howard said the change means a complainant doesn’t have to worry about having to recover legal costs associated with a hearing.
“They can rely on the commission to present their case so legal costs shouldn’t stand in the way of a settlement,” he said.
For Leo Trainor, who was the commission’s chair for 10 years, he said the commission has been reasonably successful and its biggest role has been educating people about established rights, which led to society looking at things differently.
“It was a battle,” he said.
Although one of the most important issues Trainor said the commission has dealt with over the years was discrimination based on sexual orientation, political discrimination was one of the biggest.
“The Human Rights Commission basically took a stand that these people had certain standing and they should be adhered to and they shouldn’t be discriminated,” he said.