Resolving Disputes
The Commission is dedicated to resolving disputes in a fair, transparent and effective way. Increased focus on early dispute resolution through mediation and informal dialogue better serves those who contact the Commission about possible discrimination. Positive impacts for everyone affected include savings in time and money, reduced emotional distress, strengthened morale and increased productivity.
At year-end, the Commission had an active caseload of 576 complaints, down from 614 the previous year. The average age of its active caseload also decreased from 9.5 months in 2006 to 9.1 months in 2007.
A New Approach
In 2007, the Commission introduced new practices that provided earlier opportunities for parties to informally resolve their human rights disputes. This initiative is part of our overall focus on being more responsive to the needs of those who contact us.
The new approach was implemented by merging the Commission’s intake and alternative dispute resolution (ADR) services to create the new Resolution Services Division with the mandate to help parties resolve disputes as soon as they are brought to the Commission’s attention, at the time of an initial inquiry. With an expanded staff of professional mediators and senior officers, this Division provides an opportunity for the parties to immediately start thinking about possible solutions, and a venue to discuss them. In instances where this step is inappropriate or where a resolution cannot be achieved, a formal complaint can be filed.
The New Process
Resolution Services is the first point of contact for people who believe they have been discriminated against by a federally regulated employer or service provider. The first step is to determine whether the allegations of discrimination fall within the Commission’s jurisdiction as described in the Canadian Human Rights Act. If they do not, our intake personnel will assist the inquirer in identifying other places or ways to raise his or her concerns (such as raising them with a provincial commission).
Where the Commission does have jurisdiction, our legislation requires us to consider whether the alleged victim has exhausted "grievance or review procedures otherwise reasonably available" (section 41 (1)). If another process is reasonably available, the inquirer is encouraged to address the dispute through that process. Examples of other redress processes include union grievance procedures and complaint processes set up under other laws, such as the Tax Court, the Canada Labour Relations Board or the Canadian Transportation Agency. Due to their specialized knowledge and expertise, these processes can be very efficient and effective.
If no other process is reasonably available, the Commission supports the parties in trying to settle the matter. An officer speaks to the parties separately to explore possible solutions to the concerns raised by the inquirer. This process is called "early resolution."
Early Resolution
Early resolution is the first dispute resolution strategy in the Commission’s continuum of ADR services. This voluntary, on-the-record process of facilitated discussion is carried out by telephone rather than face-to-face. Sometimes referred to as "shuttle mediation," this process is the quickest and least formal of the Commission’s ADR services. Early resolution has special advantages. Providing parties with the ability to begin discussions immediately, without filing a complaint, can be less threatening than filing a complaint. The informal process also gives parties a chance to solve the problem before it escalates – increasing the likelihood of resolution.
Early Resolution Case Study 1: The inquirer had been denied disability leave and was afraid he might even lose his job. The Commission’s Early Resolution Advisor contacted the employer’s human resources director to discuss the situation. Within an hour, the employer agreed to approve the disability claim, and the parties worked out a return-to-work plan. Case Study 2: The inquirer had asked her employer for leave to care for a family member who had been diagnosed with a terminal illness. The employer was reluctant to grant the leave, and suggested that the employee resign. The Early Resolution Advisor contacted the employer and, within a week, leave without pay was granted. The inquirer had her job to come back to after the death of the family member. Case Study 3: The inquirer was retired. His employer provided medical benefits to retired employees and their families. The inquirer’s same-sex partner had been receiving these benefits until the company changed insurance carriers. The Inquirer had been trying for six months to get his partner’s benefits reinstated. The Early Resolution Advisor spoke to the company’s human resources representatives and, three weeks later, the benefits were reinstated. |
Preventive Mediation
If the parties are prepared to consider solutions but find it impractical to do so by telephone, the case is referred to a mediator. As with early resolution, the objective of preventive mediation is to encourage the parties to discuss the issues without delay. The mediator arranges a confidential, face-to-face meeting between the parties to look at settlement options in greater detail.
Preventive Mediation Case Study 1: The inquirer was injured at work. After a period of disability leave, he returned to work with a list of medical restrictions. He alleged that neither his employer nor his union made any effort to accommodate him in employment. The matter was settled with an agreement that his employer and union would facilitate his return to work as soon as he provided updated medical information. |
The Commission’s new approach has generated positive results. Preliminary data indicates that the Commission assisted parties in resolving 58 disputes through early resolution processes; that is, where no formal complaint was filed.
Complaints
If a dispute cannot be resolved through early resolution or preventive mediation and the inquirer wishes to pursue the matter, he or she can file a complaint. Once the complaint is accepted, the other party is notified and the file is referred to the Investigations Division for a preliminary assessment or an investigation. At any point, the case can also be assigned to a mediator, at the parties’ request.
Mediation Case Study 1: The complainant, a Caucasian woman, worked as a manager for an Aboriginal band council. She alleged that a senior member of the council encouraged the other employees and the larger community to file harassment complaints against her. The matter was settled when the band council agreed to revise its policy on workplace discrimination and harassment. The council also decided to make the settlement public, as a learning experience for the community. Case Study 2: The complainant, who is originally from Haiti, worked in a warehouse. He alleged that his employer treated him and other black employees differently while investigating a series of thefts in the workplace. The complainant was eventually fired. Mediation resulted in a settlement, which provided for the complainant’s return to his job. |
Client Satisfaction The Commission is committed to ensuring and measuring satisfaction with the mediation and conciliation processes. Parties are asked to complete a client satisfaction survey. Analysis of the data will begin in 2008. |
Preliminary Assessment
Preliminary assessment is a non-confidential process that encourages frank and open discussion between the parties. The assessor works with the parties to clarify the allegations and resolve the issues. The assessor can provide a non-binding assessment of the complaint (the strengths and weaknesses of the case) as well as the remedies that could be imposed by a Tribunal if the complaint were eventually substantiated. Once an assessment is completed, several things can happen. The assessor can refer the file for a full investigation, or draft a report to be submitted to the Commission in cases where there is sufficient information to make a decision on the merits of the complaint.
Preliminary Assessment Case Study 1: The Commission received a complaint dealing with membership in a Band. After several discussions with the parties, the assessor determined that the complaint raised constitutional issues. As a result, an investigation was not conducted, and the assessor prepared a report to the Commission recommending that the case be referred to Tribunal to clarify the legal issues. Case Study 2: The Commission received a complaint from an individual who was alleging discrimination based on religion. The complainant alleged that he had been prevented from traveling while wearing a kirpan (a ceremonial dagger). After Commission staff reviewed the file and the most recent case law with the parties, the matter was settled with the transportation company agreeing to change its policy. |
Investigation
During an investigation, the respondent is asked to provide its full response to the allegations and, once received, the complainant is asked to comment on the respondent’s position. The investigator reviews the information gathered and determines if further information is required. Further information can be obtained through witness interviews, requests for additional information from the parties or third parties, etc. At the conclusion of the investigation, an investigation report is prepared with a recommendation to the Commission. Parties are given an opportunity to comment on the report before the Commission makes a decision. After reviewing the investigation report and the parties’ submissions, the Commissioners can dismiss the complaint, appoint a conciliator, or refer the matter to the Canadian Human Rights Tribunal for hearings.
Conciliation
Conciliation is similar to mediation in that it offers a controlled environment in which the parties can exchange ideas and work towards a mutually agreeable solution. It differs from mediation, however, in that the accent is on the merits of the case rather than on facilitation. Although the conciliator uses the same techniques as a mediator to encourage discussion and negotiation, he or she is also mandated to give the parties an opinion on the likelihood of success in litigation and the remedies that are likely to be achieved in a number of significant ways. Conciliation also differs from mediation in that the conciliator can disclose settlement offers to the Commissioners with the consent of the party making the offer. If the complaint is settled at conciliation, the agreement is submitted to the Commission for approval. If no agreement is reached, the case can return to the Commission for further review and decision, or be sent directly to the Tribunal.
Conciliation Case Study 1: The complainant, a term employee, was let go after telling her supervisors that she was pregnant. She alleged that she had been promised a permanent job. The matter was settled when the respondent agreed to help the complainant prepare for upcoming competitions and offered her financial compensation for the time off work. Case Study 2: The complainant alleged that she was sexually harassed by a senior manager. She alleged that he asked for sex in exchange for his support. She eventually resigned to get away from the situation. Conciliation resulted in a settlement that provided for the complainant’s reinstatement, as well as financial compensation for lost wages, and for pain and suffering. |
Figure 9 - Number of Inquiries During the Last Three Years
| | 2005 | 2006 | 2007 |
| Inquiries* | 17,750 | 16,200 | 12,306 |
*The first contact a person or group has with the Commission regarding an incident, practice or policy that the person or group believes is discriminatory. The contact can take place by telephone, mail, email, or in person. |
Figure 10 - Signed Complaints by Types of Respondents
| | 2005 | 2006 | 2007 |
| # | % | # | % | # | % |
| Private Sector | 301 | 40 | 316 | 44 | 315 | 49 |
| Federal government* | 338** | 45 | 301 | 42 | 253 | 40 |
| Unions | 27 | 4 | 17 | 2 | 29 | 5 |
| Individuals | 52 | 7 | 49 | 7 | 21 | 3 |
| Reserves, Bands and Councils | 34 | 4 | 34 | 5 | 20 | 3 |
| Total | 752 | 100 | 717 | 100 | 638 | 100 |
* Includes employers in the core public administration, separate federal government organizations or agencies and crown corporations. ** The Commission accepted a group of 594 related complaints which are counted as one. |
Figure 11 - Signed Complaints by Province or Territory
| | 2005 | 2006 | 2007 |
| # | % | # | % | # | % |
Ontario | 361 | 48 | 379 | 53 | 305 | 48 |
British Columbia and Yukon | 113 | 15 | 95 | 13 | 104 | 16 |
Quebec | 84 | 11 | 70 | 10 | 75 | 12 |
Alberta, Northwest Territories and Nunavut | 77 | 10 | 57 | 8 | 61 | 10 |
Nova Scotia | 24 | 3 | 29 | 4 | 27 | 4 |
Manitoba | 40 | 6 | 33 | 5 | 22 | 3 |
Outside of Canada | 2 | 0 | 1 | 0 | 19 | 3 |
Saskatchewan | 32 | 4 | 20 | 3 | 17 | 3 |
New Brunswick | 15 | 2 | 18 | 2 | 5 | 1 |
Newfoundland and Labrador | 4 | 1 | 5 | 1 | 3 | 0 |
Prince Edward Island | 0 | 0 | 10 | 1 | 0 | 0 |
Total | 752* | 100 | 717 | 100 | 638 | 100 |
| * The Commission accepted a group of 594 related complaints which are counted as one. |
Figure 12 - Ground(s) of Discrimination Cited in Signed Complaints
| Ground* | 2005 | 2006 | 2007 |
| # | % | # | % | # | % |
Disability | 448 | 39 | 372 | 34 | 298 | 36 |
Sex | 130** | 11 | 160 | 15 | 113 | 13 |
Age | 64 | 5 | 68 | 6 | 99 | 12 |
National or ethnic origin | 138 | 12 | 145 | 13 | 98 | 12 |
Race | 133 | 12 | 112 | 10 | 79 | 9 |
Colour | 91 | 8 | 82 | 8 | 52 | 6 |
Family status | 61 | 5 | 56 | 5 | 37 | 4 |
Religion | 49 | 4 | 39 | 4 | 31 | 4 |
Sexual orientation | 27 | 2 | 36 | 3 | 18 | 2 |
Marital status | 21 | 2 | 20 | 2 | 14 | 2 |
Conviction for which a pardon has been granted | 2 | 0 | 0 | 0 | 1 | 0 |
Total | 1,164 | 100 | 1,090 | 100 | 840 | 100 |
* Total number of grounds cited exceeds the total number of complaints signed because some complaints dealt with more than one ground. ** The Commission accepted a group of 594 related complaints which are counted as one The numbers reported in our last Annual Report have been adjusted following a review of data during 2007. |
Figure 13 - Types of Allegations Cited in Signed Complaints
| Allegation* | 2005 | 2006 | 2007 |
| # | % | # | % | # | % |
| Employment-related (sections 7, 8, 10) | 1,235** | 80 | 925 | 72 | 774 | 73 |
| Services-related (sections 5, 6) | 131 | 8 | 120 | 9 | 106 | 10 |
| Harassment – employment (section 14) | 135 | 8 | 166 | 13 | 106 | 10 |
| Retaliation (section 14.1) | 13 | 1 | 18 | 2 | 30 | 3 |
| Union membership (section 9) | 14 | 1 | 5 | 0 | 17 | 2 |
| Hate messages (section 13) | 13 | 1 | 20 | 2 | 16 | 2 |
| Harassment – services (section 14) | 8 | 1 | 18 | 1 | 5 | 0 |
| Pay equity (section 11) | 1 | 0 | 9 | 1 | 2 | 0 |
| Notices, signs, symbols (section 12) | 1 | 0 | 1 | 0 | 0 | 0 |
| Total | 1,550 | 100 | 1,282 | 100 | 1,056 | 100 |
* Total number of allegations cited exceeds the total number of signed complaints because some complaints dealt with more than one allegation. ** The Commission accepted a group of 594 related complaints which are counted as one. The numbers reported in our last Annual Report have been adjusted following a review of data during 2007. |
Figure 14 - Final Decisions by Type
| Final Decisions by Type | 2005 | 2006 | 2007 |
| Section 40/41 Analysis* | 428 | 384 | 288 |
| Dismissed | 392 | 297 | 203 |
| Settled | 352 | 278 | 234 |
| Referred to Tribunal | 102 | 96** | 136 |
| Total | 1,274 | 1,055 | 861 |
* Under section 40/41 of the Act, the Commission may decide not to deal with a complaint because the complainant ought to pursue another redress mechanism, or because the complaint is out of time, out of jurisdiction, or considered trivial, frivolous or vexatious. ** Our last annual report showed 115 cases having been referred to Tribunal in 2006. That figure has been adjusted downward to 96 this year to reflect the fact that 19 of the cases were settled through conciliation during 2007, prior to Tribunal hearing. |