Under the Canadian Human Rights Act, the Commission has a dual responsibility to promote and protect human rights in Canada. In this latter role, the Commission receives, investigates and attempts to resolve complaints of discrimination based on the eleven prohibited grounds in the Act. Here the Act's purpose is to provide a remedy to individual victims of discrimination, and to bring about changes to policies and practices with a potential impact on many people.

The Complaints Process

The Commission receives about 50,000 inquiries a year at its headquarters in Ottawa, or at one of its six regional offices; in 1999, the Commission received 49,737 (Table 1). Most inquiries deal with matters that are beyond the Commission's jurisdiction. In these cases, Commission staff will normally suggest other avenues the callers might pursue to deal with their concerns.

If the matter does fall within the Commission's jurisdiction - i.e., if the person making the inquiry is alleging discrimination in employment or the provision of services on one or more of the eleven prohibited grounds in the Canadian Human Rights Act - an employee takes down the information on the caller's particular concerns, and explains how the complaints process works. The process is illustrated by a diagram opposite.

In 1999, the Commission received 1,430 complaints, slightly less than the average over the past few years (Table 2).

On receipt of a complaint, the complainant may be encouraged to pursue other available mechanisms, such as a grievance process or procedures under other legislation. Alternatively, if the matter is relatively straightforward, staff may attempt to resolve the situation quickly by contacting the employer or service provider directly.

The Human Rights Process Canadian Human Rights Commission

When the Commission Receives an Inquiry

• Employees provide information to people contacting the Commission
• Employees may direct people to another agency if the problem is not within the Commission's jurisdiction

After the Commission Accepts a Complaint

• When appropriate, officers refer the complainant to another redress mechanism (such as the employer's internal complaints process or a union grievance procedure)
• Where possible, mediation is offered to the parties
• Officers investigate the complainant's allegations and submit reports to the Commissioners for their decision

When the Commissioners Make a Decision

• The Commissioners may approve a settlement between the complainant and respondent
• They may appoint a conciliator
• They may refer a complaint to the Canadian Human Rights Tribunal
• They may dismiss a complaint or decide to take no further action because no link could be established between the alleged act and a prohibited ground of discrimination

Canadian Human Rights Tribunal

• Mediation may be offered to the parties
• If mediation is unsuccessful, a tribunal panel will conduct hearings on the complaint
• It will then make a decision on the complaint and order a remedy if the evidence supports the complainant's allegations

Federal Court of Canada

• The Federal Court may carry out a judicial review of a decision by the Commissioners
• The Court may also carry out a judicial review of a decision or order of the Canadian Human Rights Tribunal

If, after discussing the situation with an officer, the complainant wishes to pursue the matter, he or she is helped to put the allegations of discrimination in writing. In 1999, a total of 566 such complaints were filed. A copy of the complaint form is then sent to the respondent (i.e., the employer or service provider in question) and, under newly adopted procedures described later in this chapter, the parties are invited to try to resolve the matter through mediation. If mediation is not an option in a particular complaint, or if it is attempted and fails to resolve the matter, then the complaint is turned over to an investigator to gather the facts in the case. Throughout the investigation, the parties have the option of opening or reopening discussions aimed at reaching a settlement.

After the investigation is completed, the investigator prepares a report, which is disclosed to the complainant and respondent for their comments. If, at this stage, either party introduces new facts or legal arguments, their submissions must be cross-disclosed, and additional investigation may be required. The matter is then presented to the Commissioners, who review the evidence gathered by the investigator along with any submissions received from the parties, and make a decision as to the disposition of the complaint.

Based on the evidence presented to them, the Commissioners can dismiss complaints, appoint a conciliator to attempt to resolve the matter, or ask the Canadian Human Rights Tribunal to hold a hearing into the complaint.

Table 1
Number of Inquiries During the Last Ten Years

1999: 49,737
1998: 55,398
1997: 47,200
1996: 46,796
1995: 36,574
1994: 40,112
1993: 46,292
1992: 52,170
1991: 52,284
1990: 52,792

An inquiry is any initial contact with the Commission by a person, group, or organization seeking information or wishing to bring a situation or concern to the Commission's attention.

The Canadian Human Rights Tribunal is a separate body that has the power to issue subpoenas and to take testimony from witnesses under oath. It can make a finding of discrimination and order an employer or service provider to provide the complainant with an appropriate remedy. Remedies can include damages for hurt feelings, and compensation for loss of employment, lost promotions, or other lost opportunities.

Table 2
Number of Complaints Received by Province or Territory, 1996 to 1999
(number and percentage)

1999
Newfoundland: 30 (2 %)
Prince Edward Island: 15 (1 %)
Nova Scotia: 85 (6 %)
New Brunswick: 61 (4 %)
Quebec: 255 (18 %)
Ontario: 533 (37 %)
Manitoba: 95 (7 %)
Saskatchewan: 69 (5 %)
Alberta, Northwest Territories and Nunavut: 91 (6 %)
British Columbia and Yukon: 196 (14 %)
Total: 1,430 (100 %)

1998
Newfoundland: 46 (3 %)
Prince Edward Island: 92 (5 %)
Nova Scotia: 95 (5 %)
New Brunswick: 62 (3 %)
Quebec: 261 (15 %)
Ontario: 579 (33 %)
Manitoba: 162 (9 %)
Saskatchewan: 78 (4 %)
Alberta, Northwest Territories and Nunavut: 86 (5 %)
British Columbia and Yukon: 315 (18 %)
Total: 1,776 (100 %)

1997
Newfoundland: 20 (1 %)
Prince Edward Island: 19 (1 %)
Nova Scotia: 121 (8 %)
New Brunswick: 50 (3 %)
Quebec: 202 (13 %)
Ontario: 525 (34 %)
Manitoba: 140 (9 %)
Saskatchewan: 97 (7 %)
Alberta, Northwest Territories and Nunavut: 88 (6 %)
British Columbia and Yukon: 265 (18 %)
Total: 1,527 (100 %)

1996
Newfoundland: 50 (3 %)
Prince Edward Island: 31 (2 %)
Nova Scotia: 125 (7 %)
New Brunswick: 56 (3 %)
Quebec: 256 (14 %)
Ontario: 647 (36 %)
Manitoba: 84 (5 %)
Saskatchewan: 69 (4 %)
Alberta, Northwest Territories and Nunavut: 128 (7 %)
British Columbia and Yukon: 353 (19 %)
Total: 1,799 (100 %)

The number of complaints from different parts of the country varies somewhat from year to year.

Not surprisingly, however, the highest numbers continue to originate in the country's three largest provinces, Ontario, Quebec and British Columbia.

The Commission can also approve a settlement agreed to by the parties, take no further proceedings in complaints that are otherwise resolved, or place cases in abeyance pending the outcome of similar cases or related litigation.

A conciliator is appointed by the Commission when there is evidence to support the complainant's allegations of discrimination. The conciliator is mandated to help the parties reach a settlement, and to report back to the Commission on the results. If conciliation is successful and an agreement is reached between the parties, the Commissioners are asked to approve the settlement. If conciliation is unsuccessful, the case is returned to the Commission to decide whether an inquiry by a tribunal is warranted.

Complaints are referred to a tribunal when the Commission believes there is sufficient evidence to support further inquiry, and it has been unable to help the parties resolve the matter. Complaints that are heard by a tribunal can be the subject of judicial review by the Federal Court.

Improving the Process

As mentioned in the introductory chapter to this report, the Commission has committed itself to a two-year renewal plan to improve its services to the public. Many aspects of this plan relate directly to the complaints process and efforts to make it more efficient. Over the past year, several initiatives were undertaken to deal more effectively with the complaints caseload and to streamline complaints-handling procedures.

In late fall 1998, the Commission set up a special task force made up of employees from all of its branches and regional offices to deal with 600 of the oldest complaints then under investigation. By the end of 1999, 90 per cent of these cases had been presented to the Commissioners for a decision.

Changes were also made to the schedule of Commission meetings in 1999 in order to expedite the process of reviewing completed cases. In the past, the Commissioners met once a month, with recesses in January and the summer months. In 1999, the Commissioners continued to meet over the summer to review cases, and more frequent use was made of smaller sessions involving up to three Commission members. The result was that some 500 complaints were presented to the Commissioners for a decision several months sooner than they would have been under the previous meeting schedule.

The Mediation Pilot Project

Increasingly, the courts, tribunals and regulatory bodies are turning to mediation as an alternative to investigation and litigation. In 1998, the Commission examined the possibility of incorporating a mediation service into the early stages of its complaints process, and a decision was made to begin offering mediation to complainants and respondents on a trial basis.

Unlike conciliation, which takes place after an investigation has been carried out and some evidence of discrimination has been found, mediation is a voluntary process that is made available to complainants and respondents before any investigation has taken place. As soon as a complaint form is signed, Commission staff determine whether the complaint could appropriately be referred to mediation. In most cases, mediation is a valid option. However, in some complaints alleging systemic discrimination, it may be more appropriate to proceed with an investigation to ensure that the broader implications of a complaint are thoroughly addressed.

If the complaint is considered suitable, the parties are asked whether they wish to participate in the mediation process. If either party declines, the complaint is assigned to an officer and investigated in the normal manner. If the parties agree to mediation, then the file is assigned to a mediator who arranges to meet with both parties together at the earliest opportunity. If mediation is successful, and the parties reach an agreement, the matter is referred to the Commission with a recommendation that the file be closed. If mediation is unsuccessful, the complaint is returned to the investigation unit and the matter proceeds in the usual manner.

In 1999, mediation was offered to the parties in 227 complaints. The parties declined to take advantage of the service in 86 cases, mediation was completed in 103 cases, and 38 mediations remained uncompleted at the end of the year. Of the 103 cases where mediation was completed, 62 were successfully resolved. These figures are encouraging. In its first year of operation, the mediation service had a 60 per cent success rate for mediated cases.

The pilot project on mediation will come to a conclusion during the year 2000, and the Commission will make a decision as to its continued use as part of the complaints process. In measuring the project's success, the Commission will consider the following questions:

• Will mediation contribute to clients' satisfaction with the complaints process?
• By reducing the number of cases requiring investigation, will mediation reduce the overall time required to process complaints?
• Will the overall cost to the Commission of processing complaints be reduced?

Monitoring Employment Equity Settlements

The Commission also monitors employment equity programs implemented by some 40 employers as part of complaint settlements or tribunal orders. This monitoring function arose as a result of complaints filed under the Canadian Human Rights Act, and before the establishment of the Commission's auditing responsibilities under the Employment Equity Act.

Measures that can be required under complaints settlements include providing outreach services to members of under-represented groups, sensitivity training, revising recruitment and selection tools to eliminate subtle biases, consulting community organizations, and setting numerical goals. The Commission's role is to review progress reports submitted by the employers in question, analyse accomplishments, and outline areas for further work. The analyses are sent to both the employers and the complainants who first brought the cases forward. The largest of these groups are the Assembly of Manitoba Chiefs and the Disabled Persons Employment Equity Human Rights Group, or DPEEHRG.

Patterns of Discrimination: Complaints Received in 1999

As mentioned earlier in this chapter, the Commission received 1,430 complaints in 1999, of which 566 were signed complaints requiring investigation (or mediation) and a decision by the Commissioners at the end of the process. Table 3 shows the frequency with which the eleven prohibited grounds of discrimination were cited by complainants. It should be noted that the number of grounds cited exceeds the number of complaints, since many complainants' allegations relate to more than one ground of discrimination.

The pattern of discrimination complaints has remained relatively constant over the past four years. In 1999, disability was once again the prohibited ground of discrimination most frequently cited. Discrimination based on disability was alleged in 600 cases, or 34 per cent of all complaints, a slightly higher proportion than in previous years.

Sex also continued to be frequently cited by complainants. In 1999, allegations of discrimination based on sex were raised in 325 cases, or 18 per cent of all complaints received.

Table 3
Number of Complaints Received by Ground of Discrimination, 1996 to 1999
(Number and percentage)

1999
Disability: 600 (34 %)
Sex: 325 (18 %)
Race/Colour: 258 (15 %)
National/Ethnic Origin: 250 (14 %)
Age: 134 (8 %)
Family/Marital Status: 129 (7 %)
Sexual Orientation: 42 (2 %)
Religion: 30 (2 %)
Retaliation: 7 (0 %)
Pardon: 6 (0 %)
Total: 1,781 (100 %)

1998
Disability: 597 (27 %)
Sex: 415 (19 %)
Race/Colour: 312 (15 %)
National/Ethnic Origin: 252 (11 %)
Age: 321 (14 %)
Family/Marital Status: 186 (9 %)
Sexual Orientation: 75 (3 %)
Religion: 48 (2 %)
Retaliation: 6 (0 %)
Pardon: 3 (0 %)
Total: 2,215 (100 %)

1997
Disability: 645 (26 %)
Sex: 407 (17 %)
Race/Colour: 339 (14 %)
National/Ethnic Origin: 305 (12 %)
Age: 453 (18 %)
Family/Marital Status: 199 (8 %)
Sexual Orientation: 70 (3 %)
Religion: 55 (2 %)
Retaliation: 6 (0 %)
Pardon: 4 (0 %)
Total: 2,483 (100 %)

1996
Disability: 685 (30 %)
Sex: 461 (20 %)
Race/Colour: 358 (15 %)
National/Ethnic Origin: 276 (12 %)
Age: 159 (7 %)
Family/Marital Status: 221 (10 %)
Sexual Orientation: 99 (4 %)
Religion: 47 (2 %)
Retaliation: 8 (0 %)
Pardon: 1 (0 %)
Total: 2,315 (100 %)

The number of grounds cited exceeds the number of complaints, since many complainants' allegations relate to more than one ground of discrimination.

Complainants raising allegations of "racial discrimination" generally cite the grounds of race, colour and national or ethnic origin, and these grounds, taken together, represented 508 cases, or 29 per cent of all complaints received. This, again, is a slight increase from previous years.

The remaining grounds of discrimination were raised in considerably fewer instances. Taken together, these grounds were cited in nineteen per cent of all complaints received. No significant changes are to be noted in the pattern of complaints over the past four years, except for complaints citing the ground of age. The fluctuation in the number of age-related complaints, however, can be explained by the fact that the Commission has tended to receive more groups of related complaints on this ground than on any other. Groups of age-related complaints received in the past have questioned age-based limitations on particular pension plans, or eligibility for separation packages.

Table 4
Complaint Outcomes for 1996 to 1999
(number and percentage)

1999
Settled¹: 213 (12 %)
Referred to alternate redress mechanisms: 174 (9 %)
Referred to conciliation: 242 (14 %)
Referred to a tribunal: 52 (3 %)
Not dealt with²: 44 (2 %)
Dismissed: 243 (14 %)
No further proceedings³: 109 (6 %)
Discontinued⁴: 713 (40 %)
Total: 1,790 (100 %)

1998
Settled¹: 189 (11 %)
Referred to alternate redress mechanisms: 297 (17 %)
Referred to conciliation: 83 (5 %)
Referred to a tribunal: 22 (1 %)
Not dealt with²: 23 (1 %)
Dismissed: 192 (11 %)
No further proceedings³: 129 (7 %)
Discontinued⁴: 824 (47 %)
Total: 1,759 (100 %)

1997
Settled¹: 217 (10 %)
Referred to alternate redress mechanisms: 301 (14 %)
Referred to conciliation: 120 (6 %)
Referred to a tribunal: 24 (1 %)
Not dealt with²: 28 (1 %)
Dismissed: 221 (10 %)
No further proceedings³: 147 (7 %)
Discontinued⁴: 1,087 (51 %)
Total: 2,145 (100 %)

1996
Settled¹: 325 (14 %)
Referred to alternate redress mechanisms: 327 (15 %)
Referred to conciliation : 110 (5 %)
Referred to a tribunal: 9 (0 %)
Not dealt with²: 18 (1 %)
Dismissed: 245 (11 %)
No further proceedings³: 198 (9 %)
Discontinued⁴: 989 (45 %)
Total: 2,221 (100 %)

² Cases that the Commission decided not to pursue because they were filed more than one year after the alleged act of discrimination, or were, technically, without purpose.

³ Cases in which the complainants withdrew or abandoned their complaints, the matters were outside the Commission's jurisdiction, or the complaints did not warrant referral to a tribunal.

⁴ Cases that were closed prior to investigation because the complainants did not wish to pursue them or because a link could not be established between the alleged act and a prohibited ground of discrimination.

Outcomes: Complaints Closed in 1999

In 1999, the Commission completed work on 1,790 files (Table 4).

The pattern of complaint outcomes tends to vary somewhat from year to year, but the figures for the past four years do not show any significant changes or trends in complaint outcomes, with the exception of a significant increase in the number of cases in which the Commission appointed a conciliator. In 1999, the Commission appointed conciliators in 242 complaints, up from 83 in 1998. In part, this increase can be attributed to the fact that the Commissioners reviewed a high number of cases in 1999 (Table 5) as a result of the backlog reduction project and changes to the Commission meeting cycle described earlier in this chapter. To deal with this large increase in the number of cases in conciliation, the Commission has redistributed some of its resources internally, and introduced new conciliation standards and monitoring procedures.

Also of interest, in terms of complaint outcomes, was the increase in the number of complaints that were settled, reflecting the early success of the mediation pilot project, and the higher proportion of cases referred to tribunals. Indeed, in 1999, the Commission referred 52 complaints to tribunals, more than twice the number referred in each of the previous two years. Twenty-four of these cases - almost half - were complaints of discrimination based on sex, and twelve of these were complaints alleging sexual harassment.

Table 5
Cases in Which Decisions Were Rendered by the Commission

1999: 1,039
1998: 656
1997: 808
1996: 1,024

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