July 28, 2010
Canada’s Human Rights Institutions At Risk
By Shelagh Day, Senior Editor and Publisher, Canadian Human Rights Reporter
It is time to go into worry mode about Canada’s human rights institutions. Here are some recent developments that cause concern:
• Saskatchewan’s Minister of Justice proposes to dismantle the Saskatchewan Human Rights Tribunal and send human rights complaints directly to the courts (see Potential Move of Human Rights Complaint Function to a Court). The legal amendments necessary to abolish the Tribunal and reroute complaints have not yet been introduced in the Legislature, but they are actively under consideration. If Saskatchewan sends complaints to the courts, this will be a significant change to Canada’s human rights infrastructure, and it will put more obstacles in the path of those who need to use their rights.
• The B.C. Law Institute has been asked by the Ministry of Labour to conduct “research and analysis in relation to workplace dispute resolution mechanisms in British Columbia”. The disputes in question include human rights employment complaints. The request from the Ministry follows publication by Peter Gall, an employer-side lawyer at Heenan Blaikie, of a paper claiming that labour adjudicators should have “not just the authority to deal with allegations of human rights violations in the workplace, but the exclusive jurisdiction to do so” (see Human Rights in the Workplace: The Case for a Specialized Workplace Tribunal at 3). Mr. Gall, who regularly represents the Government of British Columbia in employment matters, is calling for a specialized “super” workplace tribunal to displace the Human Rights Tribunal entirely on employment issues, and for other human rights complaints to be sent to the courts.
At the same time, Heather MacNaughton, the widely respected Chair of the B.C. Human Rights Tribunal, was not re-appointed. Human rights watchers speculate that British Columbia also plans to dismantle its Tribunal.
• The Supreme Court of Canada has granted leave to appeal in Canada (Attorney General) v. Mowat, a case about whether the Canadian Human Rights Tribunal has the authority to award legal costs to a successful complainant (see 2006 CHRT 49). This case arises because the Canadian Commission has stopped representing human rights complainants before the Tribunal and courts, and complainants are increasingly appearing unrepresented, with a high likelihood of losing, or they are hiring their own counsel. (For documentation of this decision see here). In the Supreme Court, the Commission will argue that the Canadian Tribunal should be able to award legal costs to successful complainants.
Donna Mowat is a former Master Corporal with the Canadian Forces. In 1998 she filed a complaint alleging sex discrimination and sexual harassment. The Canadian Human Rights Commission did not appear to represent her, and Mowat retained counsel. She was unsuccessful, except with respect to the sexual harassment component of her complaint. The Tribunal awarded her $4,000 for injury to dignity, and $47,000 for legal costs.
The Attorney General of Canada appealed on the grounds that the Tribunal had no jurisdiction to award legal costs. The Canadian Human Rights Act, R.S.C. 1985, c. H-6 permits awards for “expenses incurred”, but “legal costs”, the AG argued, are not included in this more general term. The Court of Appeal agreed and overruled the Tribunal. See Canada (Attorney General) v. Mowat, 2009 FCA 309.
Mowat’s claim is certainly sympathetic. Challenging the Canadian Forces, with all its governmental resources, Mowat had little chance of effectively making her claim unless she engaged legal counsel.
But, the unfortunate result, if the Canadian Human Rights Commission is successful, is that human rights complaints will be viewed increasingly as strictly private, that is as claims that are devoid of any public policy dimension. This is contrary to the view that is embedded in Canadian human rights jurisprudence: namely, that a human rights proceeding cannot be equated with a lis between parties in a court, because the ultimate goal is the promotion of human rights for the benefit of the community as a whole. (See, for example, LaForest J. in Scowby v. Glendinning, [1986] 2 S.C.R. 226).
The Canadian Human Rights Commission is making the case for Mowat getting costs from the respondent because she successfully proved that she was discriminated against. Instead, it should be making the case for the Commission having sufficient resources to ensure that all complainants get publicly funded representation before the Tribunal. There is no certainty of success in a human rights complaint. The public interest in the elimination of discrimination is not served when Canadian women and men cannot afford to take the risk of seeking vindication of their rights.
The effect of shutting down Tribunals, sending human rights complainants to courts, and using legal costs as a substitute for public access, will be to weaken Canada’s system of human rights laws and discourage Canadians from using them.
