The Canadian Human Rights Commission has a legislative mandate to protect and promote human rights and equality and an obligation to ensure that this mandate is met as effectively and efficiently as possible.
A series of reports has addressed the operations and future directions of the Commission, starting with the Auditor General’s report of September 1998, followed by the 2000 report of the Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision; the fall 2002 report of the House of Commons Standing Committee on Human Resources Development and the Status of Persons with Disabilities; the 2002 report of the Senate Standing Committee on Human Rights; and the January 2003 report of the House of Commons Public Accounts Committee. Many of the Commission’s stakeholders have provided and continue to provide valuable insights into the Commission’s past and present challenges and its opportunities for the future. The inescapable conclusion from these observations, comments and trends is that there are questions related to public expectations as to operational effectiveness and efficiency in certain aspects of the Commission’s work. The conduct of employment equity audits, for example, has been commended but the process for handling human rights complaints requires immediate attention. Canada has changed a great deal in 25 years, and the human rights challenges facing the Canadian public and the Commission today have changed from the ones envisaged by the drafters of the Canadian Human Rights Act in 1977. Demographic data show an aging, more diverse population with escalating disability issues. In addition, discrimination is generally more subtle and more complex today than it was 25 years ago. Human rights law and practice have come to recognize that inequality results not only from prejudice and deliberate discrimination, but also from seemingly even-handed policies and activities that exclude individuals and groups. When it was adopted, the Act was intended both to deter offenders and to encourage compliance. The Commission was mandated to hear individual complaints, as well as to conduct research, foster greater understanding of discrimination and educate the public about equality. But resource constraints - particularly with the rising number of complaints received by the Commission - and judicial decisions have had the effect of pushing the Commission toward a more adversarial process, forcing it to focus increasingly on investigation and litigation to address human rights disputes. To help realign this imbalance and increase the focus on remedial and preventive measures, the Commission will need new tools, new approaches and new ways of doing business. The Commission needs to have at its disposal a full range of education, prevention, compliance and enforcement tools that complement one another and work interdependently to promote respect for the Canadian Human Rights Act. In 2002, the Commission undertook a review of its business model and has begun to introduce significant changes. The Commission’s agenda for change is centred on three basic principles: Alternative dispute resolution, in many cases, provides a non-adversarial forum that looks at needs, interests and solutions and can promote healing.
The complaints handling process must be made more efficient, timely and effective.
The Commission must develop tools to identify and focus on those human rights issues that raise systemic or serious human rights issues and that have the greatest human rights impact.
Back to Top Alternative Dispute ResolutionThe first step is an increased emphasis on alternative dispute resolution, a direction which is being used to great effect by other administrative bodies in Canada. Alternative dispute resolution has enormous potential to resolve many complaints of discrimination. In the few cases where alternative dispute resolution is not appropriate - either because of the type of discrimination, the existence of a serious imbalance of power between the parties or the need for legislative change to remedy the human rights violation - the Commission can still apply its traditional process. But in many cases, alternative dispute resolution offers a non-adversarial opportunity to reframe the discussion from one about right and wrong to one about needs, interests and solutions. Alternative dispute resolution also tends to foster understanding and to promote healing, both of obvious value in situations where the parties expect their relationship to continue. Finally, alternative dispute resolution is relatively quick compared with investigation and litigation. This expedites remedies and reduces the likelihood that a protracted complaint process will poison the workplace. In 2002, the Commission laid the groundwork for a new Alternative Dispute Resolution (ADR) Services Branch in 2003. The new ADR Services will build on the Commission’s work over the past three years on an alternative dispute resolution pilot project. In 2002, of all cases in which parties agreed to mediation, 160 were resolved. This is a success rate of 64%. These examples illustrate the range of issues and remedies that alternative dispute resolution can address. The new ADR Services will make alternative dispute resolution available at every stage of the complaint process, enhance the effectiveness of the ADR program and work with complainants and respondents to encourage greater participation in alternative dispute resolution. Back to Top Reform of the Case Management SystemThe Commission’s main challenge with respect to case management is twofold: it must address its current caseload and put in place a new business model to ensure the effective and efficient processing of complaints in the future. In 2002, the Commission received 800 signed complaints, which exceeded expectations by more than 200. Over its nearly 25 years of operation, the Commission has continuously accumulated a caseload; by the end of 2002, it stood at 1,378. To enable the Commission to clear its caseload, Treasury Board allocated additional resources for four years beginning April 1, 2002. Additional resources are helping to address the caseload, but money alone is not the answer. The complaint process must also be reformed. In 2003, the Commission, by improving its case management system, will focus on eliminating the backlog and implementing measures to prevent the recurrence of a new one. This will be achieved by accelerating the overall process through such changes as multi-disciplinary teams, greater up-front assessment of individual complaints and a stricter approach to some of its own procedures regarding timeliness of complaints and submissions. Back to Top Serving the Public InterestThe Commission’s agenda for change also includes measures that will enable it to better address systemic human rights issues, inform employees, employers, service providers and the public, and prevent discrimination. Although there is a public interest in the resolution of every individual complaint of discrimination, it is clear that some cases raise broader human rights issues than others. Resolving these cases can result in changes to policies, programs, laws and corporate cultures—changes that can influence an entire workplace, or an entire sector of society. Advancing the public interest means being able to identify those cases and issues that are likely to have the greatest human rights impact. The Commission is doing these things to enhance its capacity to focus on systemic and serious human rights issues. First, within the complaint system, the foundation was laid in 2002 to allow the Commission to devote more energy to cases dealing with human rights issues with potentially major repercussions. The Commission is developing new approaches that will enable it to assess and prioritize cases, based on their complexity, substance and potential impact. This past year, a number of high-impact cases were resolved. In two cases involving a deaf complainant, settlements resulted in an undertaking on the part of the Canadian Broadcasting Corporation to ensure full captioning of all broadcasts and a provision that the text messaging facilities at airports would be more accessible for deaf passengers. In another case, the Canada Customs and Revenue Agency agreed to study the extent to which racial profiling may be occurring at the border and to implement training and educational measures to guard against it. These cases demonstrate how the resolution of individual complaints can address systemic problems and rectify human rights violations affecting many people. Second, the Commission is expanding the use of tools outside the current complaint system, such as public reports and policy inquiries, to respond to systemic human rights issues and complaints, identify their root causes and make recommendations for change. For example, in 2002, the Commission released a report on the human rights situation of the Innu of Labrador and a revised policy on drug and alcohol testing in the workplace. It also consulted with First Nations communities across the country on a policy on Aboriginal employment preferences and with female inmates and non-governmental organizations on the systemic human rights issues facing federally sentenced women, in preparation for the release of a Special Report on this issue in 2003. Back to Top Third, the Commission is moving to ensure that its role when it is before the Canadian Human Rights Tribunal is clearly identified and understood as being in the public interest, as defined in the Act. This will mean that over time the Commission will be putting forward the nature and scope of public interest at Tribunal in different ways from the current practice. Another tool is the Employment Equity Program. It illustrates how a remedial, preventive approach can foster compliance with human rights standards. Under the Employment Equity Compliance Program, the Commission continued to make steady progress in auditing employers subject to the Employment Equity Act for their representation of designated groups—women, Aboriginal peoples, persons with disabilities and visible minorities—in the workplace. By the end of 2002, the Commission had conducted audits affecting 75.4% of employees covered by the Act. Of the 253 employers under audit, the Commission found 105 in compliance with the Act, which means that they have put in place the measures required by the Act to make some progress in reaching a fair representation of the four designated groups in their workforce. About 80% of employers comply with the Act voluntarily, without the Commission having to resort to enforcement measures. The promotion and education functions of the Commission are an integral part of its mandate and, in light of the limited resources it is able to devote to these activities, the Commission will be examining a number of options. It already plans to increase its Web presence as an efficient and effective way to inform Canadians about the Commission’s services and about human rights and employment equity principles. As a next step, it will be important to look at refocussing the role of the Regional Offices so that they can better support the Commission’s core operations. The Commission believes that this mix of approaches holds the key to advancing human rights in Canada. During 2003, the Commission plans to further refine its business model and sharpen its focus on human rights issues with the greatest public interest and impact. With committed leadership, innovative new management systems, and perhaps targeted regulatory and legislative interventions, we believe that the Commission is capable of adapting to new circumstances and opportunities, and of addressing past criticisms. Patience is needed on the part of all stakeholders to allow this process to unfold in a sensitive but business-like way that is respectful of employees and stakeholders. Human rights are a fundamental part of Canadian law and culture, and changes to human rights administration must be thoughtfully and carefully planned and implemented. Back to Top |