To reduce case backlog, government redesigns its human rights complaints system
British Columbia plans to scrap the Human Rights Commission, making it the only province in Canada without one. The Human Rights Tribunal will now handle all complaints.
“The commission was too slow and never seemed to successfully resolve complaints early enough,” said Attorney-General Geoff Plant. “It had responsibilities that required it to be impartial and an advocate at the same time and I think that’s a structural conflict.”
In a letter to the government earlier this year, Doug Alley, vice-president of HR at the B.C. Business Council, said the commission “performs no useful function and is responsible for most of the undue delay and costs of the current system.”
Jim Sinclair, president of the B.C. Federation of Labour, said the plan only serves the interest of big business, and eliminates support for complainants.
“Every right we had — including access to our human rights — now depends entirely on the will of the employers, the landlords, businesses and this government. All those (people) who have power and control in society,” he said.
Currently, the B.C. Human Rights Tribunal and Human Rights Commission are two independent bodies. The commission receives and investigates complaints and in some cases refers complaints to the tribunal for a hearing. About 15 per cent of cases go to the tribunal for a hearing.
According to the government, the new model is intended to “remove duplication and delays” by making the tribunal directly responsible for receiving, mediating and adjudicating cases.
While the government and business groups blame the commission for slowing down the human rights complaint process, the labour federation fears getting rid of the commission will diminish human rights in the province.
The elimination of the commission takes away an important government-sponsored human rights advocate that promoted and proactively worked to expand human rights in the province, said Geoff Meggs, director of communications for the federation.
The federation does not oppose the tribunal, but it is a strictly complaints-based agency, said Meggs. “That is an extremely passive way to deal with a fundamental problem,” he said.
Since the tribunal is an adjudicative body, eliminating the commission may discourage people who can’t afford legal counsel from moving forward with a complaint, said Meggs.
As for the delays, Meggs said that while a backlog in complaints had been a concern for everyone, in the past couple of years the commission had cut the backlog in half.
It also doesn’t make sense to try to clear up the backlog by eliminating the commission, he said. “It is like closing a court room to eliminate delays in going to trial.”
While the government is encouraging public debate over the summer, it has already made some dramatic changes to the commission. Two of the commission’s most senior officials were fired on the day the legislation was introduced. Plant told the Vancouver Sun the firings were meant to ensure “a smooth transition” to the newly proposed system.
Acting chief commissioner, Harinder Mahil, and acting executive director, Chris Finding, were fired. Keith Saddlemyer, who previously headed up the tribunal, was appointed to replace Mahil.
“We decided that it was in the best interests of the public at large that we make a change in who was responsible for leading the commission through the period of transition,” Plant said.
Under the new model, the tribunal will promote mediation and mandatory settlement conferences as alternatives to formal hearings; have the power to dismiss complaints not considered in the public interest; have authority to defer cases dealt with in other forums such as collective agreement hearings; and dismiss cases if a reasonable settlement is offered.
The tribunal will be supported by an independent legal clinic offering preventive education, training and legal advice for both parties involved in complaints.
The government, as part of the administrative justice project, began reviewing the human rights system last year and considered seven potential models before making a final decision.
“We have put together something here that other jurisdictions can emulate,” Plant said.
But human rights expert, Lynne Sullivan of Sullivan and Associates, said it’s not likely other provinces will jump on this bandwagon.
“It’s hard not to see this as more than cost-cutting and ideology,” she said. “I seriously doubt it will be precedent-setting.”
Although the government is promoting the plan as user-friendly, Sullivan said she’s not convinced. There will be fewer people coming forward because they don’t have the commission to go to and get advice, she said.
“I don’t think the B.C. government is thinking about giving the same kind of back-up support to a complainant as what currently exists.”
The change is workable if it’s implemented properly, said Lorene Novakowski, a labour employment and human rights lawyer at Vancouver-based law firm Fasken, Martineau, Dumoulin. There is potential for a dramatic increase in workload for the tribunal if they’re not suitably staffed, she said. “If staffing is appropriate, I think it can be done.”
As for the argument from critics that the change will put all control into the hands of big business, Novakowski doesn’t buy it.
“The legislation is getting rid of the delay in the system — the black holes where files could disappear for five years and never be seen again. It’s giving complainants the chance to have their day in court more quickly,” she said.
“The commission was too slow and never seemed to successfully resolve complaints early enough,” said Attorney-General Geoff Plant. “It had responsibilities that required it to be impartial and an advocate at the same time and I think that’s a structural conflict.”
In a letter to the government earlier this year, Doug Alley, vice-president of HR at the B.C. Business Council, said the commission “performs no useful function and is responsible for most of the undue delay and costs of the current system.”
Jim Sinclair, president of the B.C. Federation of Labour, said the plan only serves the interest of big business, and eliminates support for complainants.
“Every right we had — including access to our human rights — now depends entirely on the will of the employers, the landlords, businesses and this government. All those (people) who have power and control in society,” he said.
Currently, the B.C. Human Rights Tribunal and Human Rights Commission are two independent bodies. The commission receives and investigates complaints and in some cases refers complaints to the tribunal for a hearing. About 15 per cent of cases go to the tribunal for a hearing.
According to the government, the new model is intended to “remove duplication and delays” by making the tribunal directly responsible for receiving, mediating and adjudicating cases.
While the government and business groups blame the commission for slowing down the human rights complaint process, the labour federation fears getting rid of the commission will diminish human rights in the province.
The elimination of the commission takes away an important government-sponsored human rights advocate that promoted and proactively worked to expand human rights in the province, said Geoff Meggs, director of communications for the federation.
The federation does not oppose the tribunal, but it is a strictly complaints-based agency, said Meggs. “That is an extremely passive way to deal with a fundamental problem,” he said.
Since the tribunal is an adjudicative body, eliminating the commission may discourage people who can’t afford legal counsel from moving forward with a complaint, said Meggs.
As for the delays, Meggs said that while a backlog in complaints had been a concern for everyone, in the past couple of years the commission had cut the backlog in half.
It also doesn’t make sense to try to clear up the backlog by eliminating the commission, he said. “It is like closing a court room to eliminate delays in going to trial.”
While the government is encouraging public debate over the summer, it has already made some dramatic changes to the commission. Two of the commission’s most senior officials were fired on the day the legislation was introduced. Plant told the Vancouver Sun the firings were meant to ensure “a smooth transition” to the newly proposed system.
Acting chief commissioner, Harinder Mahil, and acting executive director, Chris Finding, were fired. Keith Saddlemyer, who previously headed up the tribunal, was appointed to replace Mahil.
“We decided that it was in the best interests of the public at large that we make a change in who was responsible for leading the commission through the period of transition,” Plant said.
Under the new model, the tribunal will promote mediation and mandatory settlement conferences as alternatives to formal hearings; have the power to dismiss complaints not considered in the public interest; have authority to defer cases dealt with in other forums such as collective agreement hearings; and dismiss cases if a reasonable settlement is offered.
The tribunal will be supported by an independent legal clinic offering preventive education, training and legal advice for both parties involved in complaints.
The government, as part of the administrative justice project, began reviewing the human rights system last year and considered seven potential models before making a final decision.
“We have put together something here that other jurisdictions can emulate,” Plant said.
But human rights expert, Lynne Sullivan of Sullivan and Associates, said it’s not likely other provinces will jump on this bandwagon.
“It’s hard not to see this as more than cost-cutting and ideology,” she said. “I seriously doubt it will be precedent-setting.”
Although the government is promoting the plan as user-friendly, Sullivan said she’s not convinced. There will be fewer people coming forward because they don’t have the commission to go to and get advice, she said.
“I don’t think the B.C. government is thinking about giving the same kind of back-up support to a complainant as what currently exists.”
The change is workable if it’s implemented properly, said Lorene Novakowski, a labour employment and human rights lawyer at Vancouver-based law firm Fasken, Martineau, Dumoulin. There is potential for a dramatic increase in workload for the tribunal if they’re not suitably staffed, she said. “If staffing is appropriate, I think it can be done.”
As for the argument from critics that the change will put all control into the hands of big business, Novakowski doesn’t buy it.
“The legislation is getting rid of the delay in the system — the black holes where files could disappear for five years and never be seen again. It’s giving complainants the chance to have their day in court more quickly,” she said.
