Resolving Disputes

A Range of Tools

In late 2005, the Commission brought all of its services related to the resolution of human rights disputes under a single umbrella. The creation of the Dispute Resolution Branch, with its emphasis on conflict resolution, is another step in the Commission's broadening of the range of tools available to address human rights issues. The Branch's new mandate reflects the Commission's increasing emphasis on discrimination prevention, and its work with federally regulated employers and service providers to find better ways to handle disputes.

The new service delivery model

The new service delivery model emphasizes linking parties with appropriate dispute resolution options at the earliest possible opportunity. When someone contacts the Commission with concerns about possible discrimination, staff review the situation with the person making an enquiry to ensure it falls within the Commission's jurisdiction. If it does, the next question is whether the matter could be dealt with more appropriately and more quickly through some other procedure, such as a grievance or other process in the inquirer's workplace. The Commission supports the efforts of parties to deal with disputes within their own organizations. Internal processes often have the advantage of being faster, and of better reflecting the considerations and particular circumstances of the parties involved.

If no such other process is reasonably available, Commission staff will do what they can to encourage dialogue between the inquirer and the employer or service provider. The goal is to help the parties find a solution before a complaint is filed under the Act. Formal complaints often escalate disputes so that they become evermore difficult to resolve.

The Commission uses this resolution-oriented approach in most of the situations brought to its attention. If both parties are prepared to look at solutions at this stage, the process can be relatively quick. In some cases, discussions may be carried out through a process of early resolution, often by telephone. In more complex situations, or those involving more people, one of the Commission’s mediators may take over the file and invite the parties to a meeting.

The results of this new approach are already encouraging. In 2006, 65 parties agreed to try to resolve their disputes before the filing of a complaint. Of these, 28 parties reached a settlement. This settlement rate of over 40% is very promising for such a new program.

Building on our successes

When a situation cannot be resolved early on, and a complaint is filed with the Commission, the parties will be encouraged to participate in mediation if it has not already been attempted. Otherwise, the matter is turned over to an experienced human rights specialist to conduct a preliminary assessment. This approach, introduced in 2005, has proven to be highly effective.

The objective of preliminary assessment is to help the parties narrow the facts in dispute, provide information about the types of remedy that could be reasonably expected, and generally set the stage for the most appropriate next step in the process. In some cases, the assessor's work can result in a decision to withdraw the complaint or an agreement to enter into mediation. In other cases, the assessor may refer the matter directly to the Commission, bypassing a lengthy investigation. Or the assessor may feel that a more extensive investigation is required, and provide some guidance on the best way to proceed.

In cases where an investigation is required, the complaints are assigned to Commission teams made up of staff from Investigations and legal advisors and policy analysts from the Knowledge Centre. Each team specializes in specific grounds of the Act: one team for disability; another for race, colour, national or ethnic origin and religion; and a third for sex, sexual orientation, age, marital status, family status and pardoned conviction. A fourth team deals with complaints related to hate messages on the Internet, which may be linked to any of the 11 grounds of discrimination set out in the Act. By dedicating resources to grounds-based, multi-disciplinary teams, the Commission can more easily identify the best approach to dealing with a particular complaint. This in turn leads to more efficient, timely investigations, or other, more appropriate and creative solutions.

Parties can opt for mediation at any point in the process, and if the matter is resolved, the agreement is submitted to the Commission for approval. If an investigation is completed and the case is sent to the Commission for review, the Commissioners can decide to appoint a conciliator for one last attempt at resolution. The Commission can also decide to refer the matter to the Canadian Human Rights Tribunal for a hearing. In these cases, the Tribunal will normally also encourage the parties to settle the matter through mediation.

All settlements approved by the Commission are closely monitored, and can be enforced through the Courts if necessary.