Second of our 12-part Special Report: Human Rights Commissions in Canada
November 29, 2010
By Judy Monchuk
CALGARY, AB, Nov. 29, 2010/ Troy Media/ – Most Canadians take no notice of the sidewalk cuts that allow people in wheelchairs to travel up and down city streets, or that the waitress at their favourite coffee shop is displaying a prominent baby bump.
That’s because, over the last 30 years, disabled accessibility and women’s right to fair treatment while pregnant have become accepted human rights in Canada, thanks to the power of people who sought redress through human rights commissions.
Dianna Scarth is reminded of the power of ordinary people each time a person calls her looking for a way to right discrimination wrongs. “It takes courage
to file a complaint,” says Scarth, executive director of the Manitoba Human Rights Commission since 1996.
Thousands of complaints are filed each year with human rights commissions and tribunals across Canada. Ontario alone receives more than 2,500 complaints annually, with the majority of complaints being workplace related.
When Scarth talks about the purpose of her organization, she recounts the story of the Winnipeg waitresses who refused to accept the wandering hands of a restaurant cook as part of the job. And the pregnant Safeway cashiers who fought to retain their medical benefits. Their human rights complaints made it to the Supreme Court of Canada, which in 1989 delivered landmark rulings recognizing sexual harassment as a form of workplace discrimination and the rights of women to pregnancy coverage.
Lack of understanding a struggle
Human rights bodies have been making positive change in Canada for decades, yet most Canadians are unsure of what exactly these commissions and tribunals do. This lack of understanding in the public and the media creates a constant struggle for human rights advocates.
Human rights commissions exist to protect people from discrimination and harassment. The quasi-judicial bodies issue legally binding decisions, and focus attention on issues that might not otherwise get a public hearing.
There are 14 commissions in Canada: a federal body, plus one in each province and territory. This separation is needed because Canada’s Constitution divides responsibility for different parts of the economy; some issues are under provincial or territorial jurisdiction and others are federal.
“You couldn’t have one commission do all of this,” says Bill Black, a law professor at the University of British Columbia who has been involved with human rights issues since 1970. “That would interfere with the provincial powers to make their own laws.”
Basically, the human rights administrative framework is split into two major arms: the commissions, which accept complaints, mediate the conflict if possible and conduct research; and the tribunals, which hear any complaints that cannot be settled and determine whether discrimination occurred (see Where To Go at the bottom of this article). Individuals appointed to these bodies are named by order in council of the appropriate government and are chosen for their expertise concerning an area of discrimination.
In the 1960s, Ontario took the lead on combating discrimination and established a system for filing and reviewing complaints. In time, most other jurisdictions adopted a similar model.
In 2008, Ontario moved to a structure in which individual complaints go directly to the Ontario Human Rights Tribunal, while the commission handles broader issues.
“The previous system was very reactive,” says Barbara Hall, chief commissioner of the Ontario Human Rights Commission. “We dealt with things as they came in the door” – not necessarily the people with the greatest need.
Change not easy
Ontario is leading the move towards a proactive human rights commission. It has the power to conduct public inquiries, initiate its own complaints or investigations and intervene in tribunal hearings. It reports directly to the people of Ontario and focuses on spearheading measures to prevent discrimination.
In recent months, the commission raised concerns that people with mental health disabilities can experience discrimination in areas such as employment and housing. It also called for the Ontario government to include protection for seniors with dementia in its new legislation regulating retirement homes.
Hall calls the proactive approach “the way of the future.” Canada’s complex, diverse society can’t succeed as a “safe, healthy place for all of us to live
if we stick our heads in the sand,” she says. Problems will be solved only through “tough conversations” and dealing with the issues, “but not in a shaming, blaming way.”
Scarth agrees with the new model: “We can’t just sit back and wait for complaints to come to us.”
Some changes seem like small courtesies, but required major battles. For example, Toronto’s public transit began announcing subway and bus stops to riders in 2008, helping people with visual disabilities (to say nothing of tourists) to avoid missing their stop. The move came after a blind lawyer spent more than a decade fighting for that consideration.
Scarth took that Ontario human rights ruling to Winnipeg transit officials, who soon decided it would be better to create their own announcement system
for transit riders than to be forced to go through the negative publicity of a similar case in Manitoba. Instead, the situation was viewed as an opportunity to be progressive in disabled rights.
High-profile cases obscure real issues
Those involved say that, in recent years, a few high profile cases have obscured the vast majority which human rights bodies deal with daily.
The complaints processed each year include everything from discrimination based on sexual orientation to the rights of disabled children in the classroom. The vast majority of cases deal with disability or workplace issues.
Many are settled through mediation, far from the public eye. Mediation is an important step but parties need to be ready to budge. It can often speed up
a resolution to the complaint process.
Often, Hall says, people just want to tell their story, “to explain how they feel they’ve been humiliated, to make others know how they felt.”
Many of those decisions are not widely publicized.
Some commissions are better at educating the public about ordinary cases and resolutions, but there is no way to force the issues onto newspaper front pages and into public debate. In fact, it is difficult to even access most of those decisions.
In 1980, the Canadian Human Rights Reporter was started as a way to circulate and publish the decisions of human rights commissions across the country. In June, the Canadian Association of Statutory Human Rights Agencies launched a Web site (www.cashra.ca)
to showcase the work of Canada’s human rights agencies. But even with the information out there, it can be a tough sell to a public with abbreviated attention spans. People pay more attention to new areas of law or ground-breaking decisions.
“In a way, human rights commissions are at middle age,” says Black. “It’s harder for them to get the attention of the public. That’s made human rights law
more controversial. If it’s a clear case of sexual harassment, it’s not newsworthy. Unfortunately, that leaves the impression that all cases are cutting
Courts the wrong way to go
Yet things have been changing across Canada. British Columbia dropped its commission in 2003 and went to a “direct-access” human rights tribunal where cases are not screened prior to entering the system. Now, the B.C. government has declined to reappoint two members of the tribunal, including its chair.
Shelagh Day, editor of the Vancouver-based Canadian Human Rights Reporter and former director of the Saskatchewan Human Rights Commission, worries that the ability to handle complaints is being eroded across the country. She notes that Saskatchewan is talking about taking away tribunals and sending cases into the court system.
All of this may create a widespread legal access problem.
“The machinery across the country was set up to be quick, responsible and accessible . . . so people can find their way, to get the problem fixed as easily as possible,” says Day. But she has noticed a shift: “We’re starting to see human rights as a private dispute between parties: more like private law and contracts. I don’t want to see us go that way.”
Don’t blame the framework itself for the mistakes of commissions or tribunals, Day says. “The framework is an important part of the process of implementing public policy.”
Some worry that after more than 30 years of human rights advancement, the public may feel further fights aren’t needed.
Labour lawyer Lindsay Lyster says any such suggestions should be viewed as a wake-up call to human rights advocates.
“Women are still fired because they are pregnant,” says Lyster, a former member of the B.C. Human Rights Tribunal. “Women are still sexually harassed. People of colour continue to suffer discrimination.
“Until you’re the one who is fired because you are disabled or it’s your daughter who lost her job because she’s pregnant, you don’t think it’s a problem
anymore…. If people think these battles have all been won, those of us who care about human rights need to do a lot better job of educating them.”
Where to go
Many Canadians find the number of human rights bodies confusing, but there are reasons for the division of discrimination complaints. It comes down to the constitutional split of responsibilities between Ottawa and the provinces or territories.
Federal bodies (the Canadian Human Rights Commission and the Canadian Human Rights Tribunal) address discrimination concerns involving federally regulated employers or service providers. This includes federal departments, agencies or Crown corporations, First Nations, and any businesses or industries operating under federal jurisdiction including chartered banks, airlines, television stations and interprovincial telephone companies.
Provincial and territorial human rights legislation prevents discrimination in three key areas: employment, rental accommodation and goods and services customarily available to the public, with some local variation about other areas of discrimination. Workplace concerns fall under provincial or territorial authority if related to: schools, universities, hospitals, health care, and retail or hospitality businesses. Each jurisdiction also spells out its protection limits, or prohibited grounds of discrimination, including age, race, gender, religion, disability, sexual orientation and sexual harassment.
Channels: Wise Law (blog), Nov. 30, 2010