New Qualifications for Tribunal Members
   
Amendments to the CHRA that came into effect on June 30, 1998 created a new Canadian Human Rights Tribunal and introduced the requirement that persons appointed to it possess "experience, expertise and interest in, and sensitivity to, human rights".²⁵⁹ This requirement was challenged as creating a reasonable apprehension of bias, in that members of the Tribunal so qualified could not fairly balance equality rights interests under the CHRA against competing rights and freedoms under the Canadian Charter of Rights and Freedoms.²⁶⁰ Both the tribunal before which this argument was first raised and a Motions Judge hearing an appeal from the tribunal's decision rejected this contention. The tribunal found that the qualifications set out in section 48.1(2) of the CHRA related to human rights in the broadest sense, whatever their legislative or constitutional basis. Moreover, the over-riding duty of tribunal members is to strive for fairness and a just result regarding complaints of discrimination.

While the Federal Court of Appeal found that the new requirements introduced in 1998 did not technically apply to members of a tribunal constituted before that date, and therefore would have dismissed the appeal on that basis, it nonetheless considered the allegations of apprehended bias. It found that a tribunal composed of persons characterized by ‘sensitivity to human rights’ would not because of that fact be blind or insensitive to the interests or arguments of parties involved as respondents in adjudication under the CHRA. In its own words: "When read in association with the other qualifications for appointment, namely experience, expertise and interest in human rights, sensitivity implies no more than the need to recognize and be aware of human rights in the broadest sense. The word does not, as suggested by the appellant, require that appointees be individuals disposed to arguments supporting human rights or favourable to them as some dictionary definitions may indicate when taken in isolation. Sensitivity to human rights does not involve an insensitivity to other rights. It is only meant to exclude people with closed minds on human rights issues."²⁶¹

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End Notes