Canada’s Human Rights Commission System: Introduction to the Canadian Human Rights Commission and Tribunal

Feature by Jay Makarenko || Nov 18, 2008

The Canadian human rights commission system is constituted by two key federal agencies: the Canadian Human Rights Commission and the Canadian Human Rights Tribunal. These agencies administer, promote, and adjudicate Canada’s federal human rights and employment equity legislation. This article provides an introduction to the history, role, structure, and key issues concerning these agencies.

History of the Canadian Human Rights Commission System

Creation and evolution of the Canadian Human Rights Commission and Tribunal

Organizational Design of the Canadian Human Rights Commission System

Mandates, personnel, and independence of the Human Rights Commission/Tribunal

Case Procedure under the Canadian Human Rights Commission System

How are cases of discrimination dealt with under the commission system?

Key Issues Concerning the Canadian Human Rights Commission System

Role of the state, necessity of the commission system, and delays in dealing with cases

Sources and Links to More Information

List of article sources and links to more on this topic


History of the Canadian Human Rights Commission System

Creation and evolution of the Canadian Human Rights Commission and Tribunal

Human Rights in Canada Prior to the Second World War

Prior to the Second World War, there existed very little in the way of anti-discrimination legislation in Canada, at both the federal and provincial/territorial levels. This was due in large part to the dominant political and social culture of the time (Howe and Johnson, 2000). On the one hand, discriminatory attitudes and beliefs were a common and often acceptable part of mainstream Canadian society. Prejudice, bigotry, intolerance, and racism were widespread attitudes amongst the general population.

These general social attitudes were often reflected in official state policy. Examples include the denial of political rights to segments of society (e.g. women, Asian Canadians, and native persons); exclusionary immigration policies that discriminated against non-whites; segregated school systems in Nova Scotia and Ontario that disadvantaged black communities; and restrictive labour and employment laws that prohibited Asian Canadian from employment in certain sectors of the economy.

Another important factor was the widespread belief in the principles of laissez-faire in social relations. Central to this “anti-state” perspective was a suspicion of government as a mechanism for social change. Legislated prohibitions against discrimination, it was often argued, would result a significant limitation of individual liberty and open the door to abuses of power by government. Instead of legal compulsion by the state, discrimination would be more appropriately confronted through private mechanisms, such as moral suasion and education.

Early Human Rights Legislation in Canada

The Second World War was a pivotal event in the evolution of human rights legislation in Canada (Howe and Johnson, 2000) Events such as the Holocaust, the war-time internment of Canadian Japanese, and Canada’s signing of the United Nation’s Universal Declaration of Human Rights served as catalysts for human rights awareness and societal openness to the principle of state enforced anti-discrimination legislation. Another contributing factor was the implementation of anti-discrimination legislation in the United States, which boosted support for similar laws in Canada.

The first piece of modern human rights legislation was enacted by the Government of Ontario in 1944. Referred to as the Racial Discrimination Act, this provincial legislation prohibited the publication, displaying or broadcasting of any materials involving racial or religious discrimination. In 1947, the Government of Saskatchewan pass the Saskatchewan Bill of Rights Act, which provided for the protection of civil liberties in the province, as well as prohibited discrimination in a number of areas, including employment, housing, the workplace, land transactions, and education.

These early Ontario and Saskatchewan statutes were quasi-criminal pieces of legislation, which approached discrimination as a crime to be dealt with by the police and through the courts. This approach had several weaknesses (Howe and Johnson, 2000). Under the criminal standard of proof, discrimination had to be proven beyond a reasonable doubt. This threshold, however, was often difficult to attain, as it was relatively easy for defence lawyers to argue that a certain employment opportunity or service was being denied for reasons other than discrimination. Another issue was the reluctance of the courts to apply the law to its full extent; many senior judges, for example, refused to recognize discrimination as a real crime. Even when there was a conviction, the legislation and court process did not fully remedy the situation. The legal sanction for discrimination was often just a small fine, which did little to help the victim or alter systematic practices of discrimination in society.

Introduction of Fair Practices Legislation

The 1950s and 1960s saw the introduction of a new type of human rights legislation, which were intended to overcome the shortcomings of the earlier criminal approach. Commonly referred to as “fair practices legislation,” these acts prohibited discrimination in employment, housing, and services. Initially focused on discrimination based on race and religion, these acts were eventually broadened to include other grounds, such as sex and age. The first province to enact fair practices was the Government of Ontario in 1951. By the 1960s, most jurisdictions in Canada, including the federal government, had passed some form of fair practices laws, although their precise scope and nature differed significantly from one jurisdiction to another.

These fair practices acts differed from the early quasi-criminal legislation in a number of key ways. Instead of relying on litigation through the court system, they emphasized conciliation and the settlement of complaints through negotiation between the relevant parties. Only as a last resort, and when all avenues of negotiation had been exhausted, might a case be referred for criminal prosecution. Responsibility for dealing with complaints was assigned to administrative officials (usually in the Department of Labour), as opposed to the police. These officials would investigate complaints of discrimination and attempt to negotiate a settlement agreeable to both the complainant and the respondent. Finally, these fair practices acts required only a civil standard of proof, as opposed to the criminal standard. As such, it was only necessary to show that discrimination had occurred on a “balance of probabilities,” as opposed to “beyond a reasonable doubt.”

Modern Human Rights Codes and Commissions

While many viewed this new system of fair practices legislation as an improvement over the early criminal approach to human rights, there still existed a number of significant issues (Howe and Johnson, 2000). There existed no dedicated administrative body to deal with human rights complaints. Instead, responsibility fell to civil servants in regular government departments. Dealing with human rights cases were often only one of their many responsibilities. Moreover, there often existed little public awareness of the available anti-discrimination legislation and procedures. As such, many victims failed to come forward, as they were unaware of their rights and/or the procedures for making complaints.

These issues led to arguments in favour of creating permanent human rights commissions that would be dedicated to the administration and enforcement of anti-discrimination legislation (Howe and Johnson, 2000). Such commissions, it was argued, should be staffed by full-time professionals who would be responsible for receiving complaints, investigating cases, mediating settlements, and educating the public.

Ontario was the first jurisdiction to implement these reforms. In the early 1960s, the provincial government consolidated previously separate fair practices laws into a single act: the Ontario Human Rights Code. Furthermore, the government created the Ontario human Rights Commission to administer the new code. This included administering a complaint procedure; developing a program to educate the public about the new legislation; advising the government on the future development of the code; and generally forwarding the cause of equality rights in the province. Other jurisdictions followed Ontario’s lead, and by the late 1970s every province had established a consolidated human rights code and commissions to administer the legislation. By 2003, each Canadian territory had also established some form of a human rights code, with dedicated officials to administer their provisions.

The precise scope of provincial/territorial legislation, as well as the powers and procedures of particular commissions, differ significantly from one jurisdiction to another. General speaking, however, each reflects the basic model established first by Ontario: a consolidated piece of legislation which prohibits discriminatory practices, with a dedicated administrative body that receives and investigates complaints and attempts to settle disputes through a process of conciliation.

Creation of the Canadian Human Rights Commission

At the federal level, the Canadian Human Rights Commission (CHRC) was established in 1977 through the Canadian Human Rights Act. The federal government was one of the last Canadian jurisdictions to introduce a human rights commission system. The was due in large part to Canada’s system of federalism and a recognition that the vast majority of persons needing human rights protection were subject to provincial jurisdiction and the authority of provincial human rights commissions (Howe and Johnson, 2000).

By the mid-1970s, however, it became apparent that a significant number of persons were unprotected by provincial human rights regimes (e.g. employees and persons receiving services from businesses under federal, as opposed to provincial/territorial, jurisdiction). This, in turn, led to the passage of the Canadian Human Rights Act and the establishment of the CHRC, which apply to areas of federal jurisdiction, such as federal departments, agencies and Crown Corporations, as well as federally regulated business and industries (for example, banking, transportation and communication).

For more information on the Canadian Human Rights Act:

The federal commission system is similar to most other jurisdictions in Canada. It is based upon a consolidated human rights act that prohibits discriminatory practices. Moreover, it contains a commission which is responsible for administering the Act, dealing with complaints, and educating the public. Like many of its provincial/territorial counterparts, the federal system emphasizes negotiation and conciliation in settlement of disputes. However, it does provide an avenue for litigation of cases through the Canadian Human Rights Tribunal (CHRT). This body is responsible for hearing and deciding cases that cannot be settled through conciliation.

  • See the Organizational Design of the Canadian Human Rights Commission System and the Case Procedure under the Canadian Human Rights Commission System sections of this article for more information on the basic operation of the federal commission system.

Evolution of the Canadian Human Rights Commission

Since its creation in 1977, the federal commission system has undergone some key changes. With the introduction of human rights codes in Canada, the question arose of whether parties could litigate complaints within the general court system, or whether they were limited to just the respective provincial, territorial or federal human rights commission system. In the 1981 case of Bhadauria v. Board of Governors of Seneca College, the Supreme Court of Canada ruled that human rights legislation, with their administrative and adjudicative components, indicated a clear intention not to invest any supplementary enforcement responsibility to the general court system. As a result, the human rights commission system was recognized as being self-contained: discrimination complaints under human rights legislation could only be brought before the commissions and tribunals, and not before the courts; however, commission or tribunal decisions could be appealed to the courts.

Another key event was the separation of the Canadian Human Rights Tribunal from the Canadian Human Rights Commission. When first created in 1977, the CHRT was subsumed under the CHRC. This, however, led to concerns of bias stemming from the fact that CHRC was mandated to act both as an advocate for human rights, as well as a judge of their violation. In order to address this issue, in 1988, the CHRT informally began to operate independently of the Commission. This independence was formally recognized in 1998 with an amendment to the Canadian Human Rights Act, which established the CHRT as a separate agency. Even though these agencies are independent of one another, it is nevertheless useful to speak of them as a single system, particularly in the context of how complaints are processed, investigated, and adjudicated.

In 1996, the jurisdiction of both the CHRC and the CHRT was expanded with the introduction of the federal Employment Equity Act. The purpose of the Act is to promote equality in the workplace. Like the Canadian Human Rights Act, the Employment Equity Act only applies to areas of federal jurisdiction, such as federal departments, agencies and Crown Corporations, as well as federally regulated business and industries (for example, banking, transportation and communication). The CHRC was given the role of administering the Act, while the CHRT was mandated to adjudicate issues arising from the Act.

For more information on the Employment Equity Act:


Organizational Design of the Canadian Human Rights Commission System

Mandates, personnel, and independence of the Canadian Human Rights Commission and Tribunal

Mandates of the Canadian Human Rights Commission and Tribunal

Under the Canadian Human Rights Act and the Employment Equity Act, the Canadian Human Rights Commission is mandated to receive and investigate allegations of discriminatory practices, as well as to attempt to resolve disputes through non-adjudicative means, such as mediation and conciliation. In addition, under the Employment Equity Act, the CHRC has the power to perform audits of public and private employers to ensure they are conforming to federal law.

For more information on the CHRC’s auditing process:

The CHRC is also responsible for developing and conducting information and prevention programs. Their general purpose is to raise awareness about human rights amongst the general public, as well as inform federally regulated employers and service providers of the obligations under federal law. The CHRC is also active internationally in the area of human rights. This includes chairing the United Nations’ International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights.

The role of the Canadian Human Rights Tribunal is much narrower than the CHRC. It is mandated to inquire into and adjudicate complaints of discrimination. In this context, the CHRT is much like a court (although, there are important differences). It hears evidence and arguments presented by the parties to a complaint, and then renders a ruling on whether the complaint is valid and what course of action should be taken.

In this role, the CHRT is quite different and independent from the CHRC. Whereas the latter acts as an advocate of human rights and anti-discrimination practices, the CHRT is mandated simply to interpret and apply the law in a fair and impartial manner. In its decisions, it is completely open to the CHRT to rule against the CHRC if it disagrees with its arguments or interpretations of the law. Finally, the CHRT is mandated simply to adjudicate cases. It does not, for example, pursue informational or prevention programs with the aim of promoting awareness of human rights.

As a quasi-court, the CHRT plays an important role in the development of anti-discrimination law in Canada. The Canadian Human Rights Act and the Employment Equity Act are often very vague in their meaning or application to specific circumstances. As such, it is up to the members of the CHRT to interpret and the law (as well as the remedies in cases where the law has been violated). Nevertheless, the CHRT does not have the final say in this regard. Its decisions may be appealed to the Federal Court of Canada (and up to the Supreme Court of Canada). As a lower judicial body, the CHRT is obliged to follow the directions and legal lines of reasoning set out by these higher courts.

For more information on specific decisions made by the CHRT:

Canadian Human Rights Commission and Tribunal Personnel

The Canadian Human Rights Commission consists of up to eight members (called “commissioners”) appointed by the Governor General of Canada. In practice, however, the prime minister and cabinet select whom will be appointed to the CHRC, with the Governor General simply performing the formal appointment. Commissioners may have a wide variety of backgrounds. As of June 2008 there were seven members, five of which had law backgrounds, one with an academic background and one with expertise in coaching, mediation and policy development related to equity, diversity and transformative justice.

For more information on the current CHRC commissioners:

The head of the CHRC is the Chief Commissioner, who is a full-time member and is appointed for a term not exceeding seven years. The other commissioners report to the Chief Commissioner, and may be appointed on a full-time or part-time basis, with terms of seven and three years, respectively. The Chief Commissioner is also supported by a Deputy Chief Commissioner and Secretary General.

The Canadian Human Rights Tribunal may have up to 15 members, which are appointed by the Governor General (as with the CHRC, however, it is the prime minister and cabinet whom select the members in practice). This includes a full-time chairperson, a full-time vice-chairperson and up to 13 full-time or part-time members. Each of these members may hear cases that come before the CHRT, but the full membership never sits together. Instead, one- or three-member panels are assigned to hear each individual case. Each member is equal in terms of rendering a decision. It is not the case, for example, that the chairperson may overrule or trump the decisions of other members.

In regard to qualifications, the Canadian Human Rights Act stipulates that persons appointed to the CHRT must have “experience, expertise and interest in, and sensitivity to, human rights.” Moreover, the chairperson and vice-chairperson, and at least two other members of the CHRT, must be “members in good standing of the bar of a province or the Chambre des notaires du Québec for at least ten years.” Finally, the Act also requires that appointments are to be made with regard to the need for regional representation in the membership of the CHRT.

For information on current members of the CHRT:

In addition to hearing cases, the chairperson is responsible for the day-to-day administration, planning and priorities of the CHRT. In this administrative role, s/he is assisted by the vice-chairperson, as well as by several administrative officers. The Tribunal Registrar has the responsibility of providing administrative support to the chairperson, as well as procedural and administrative guidance to the members. The Manager, Registry Operations administers the case management operations process. Furthermore, each case panel is assigned a Registry Officer, who is responsible for managing logistical support services.

Independence of the Human Rights Commission System

Both the CHRC and the CHRT are to be independent of the government of the day. This requirement is important, due to the fact that both agencies often deal with complaints of discrimination against the federal government itself. Moreover, the CHRC and CHRT are meant to interpret and apply federal anti-discrimination legislation independently of the ideological views of the current government and governing political party.

In its early days, the CHRC was required to report to the federal Minister of Justice. In 1988, however, this process was changed to create greater independence for the agency. Today, both the CHRC and the CHRT report directly to Parliament through the Speaker of the House of Commons. The Minister of Justice, however, is still administratively responsible for the Canadian Human Rights Act, and is accountable for the policy actions of the CHRC.

In the context of the appointment process, the prime minister and cabinet have discretion in whom they may choose as a member of the CHRC and CHRT (although, they must meet the qualification criteria set out by the Act – see above). Once appointed, however, members do enjoy some independence. Most are appointed for fixed periods of time, and may only be removed for cause. This is meant to ensure that the government of the day cannot remove a member of the CHRC/CHRT simply on the grounds of ideological differences.

Independence of the Canadian Human Rights Tribunal

It is also important to note that the Canadian Human Rights Tribunal enjoys organizational independence from the Canadian Human Rights Commission. Originally, the CHRC had full authority to refer a complaint to a tribunal, as well as the authority to select the members of the particular tribunal hearing the case. Once a tribunal was formed by the CHRC, officials from the commission would in turn argue the case before the tribunal.

This system was successfully challenged before the Federal Court in the 1985 case of MacBain v. Canada (Canadian Human Rights Commission). In that case, the court ruled that the CHRC’s power over the administration of the CHRT displayed a reasonable apprehension of bias in that the latter could not be reasonably perceived as an independent adjudicative actor separate and distinct from the CHRC. As a result of the decision, the Canadian Human Rights Act was amended so that the CHRT became a free-standing institution separate from the CHRC. Under the new framework, the chairperson of the CHRT, not the CHRC, selects members of the Tribunal to form a panel to hear cases. Moreover, cases are heard with the recognition that tribunal panel is not beholden to any approach or position advocated by the CHRC in a particular case.


Case Procedure under the Canadian Human Rights Commission System

How are cases of discrimination dealt with under the commission system?

While the Canadian Human Rights Commission and the Canadian Human Rights Tribunal are separate agencies, they nevertheless form a single system in the context of dealing with complaints of discrimination.

Case Screening

The CHRC is responsible for receiving and initially reviewing complaints of discrimination. In 2007, it received 12,306 inquiries by individuals or groups regarding an incident, practice or policy that the individual or group believed to be discriminatory (Canadian Human Rights Commission, 2007 Annual Report).

Upon receiving an inquiry, the CHRC examines the allegation to determine whether it falls within its jurisdiction. This includes determining whether it involves federal jurisdiction and/or whether the case is relevant to either the Human Rights Act or the Employment Equity Act. The CHRC also pre-screens allegations to ensure that they are made in good faith and are significant enough to warrant further action.

Once it has been determined that an allegation falls within its jurisdiction, the CHRC will often pursue early resolution and preventative mediation. This is a voluntary process by which CHRC officers will attempt to mediate a solution to the matter that is mutually acceptable to all parties.

If a dispute cannot be resolved through early resolution and preventative mediation, then the individual or group making the allegation of discrimination may submit a formal complaint to the CHRC. Once submitted, the commissioners review the complaint and determine whether the issue will be pursued further. Sections 40 and 41 of the Canadian Human Rights Act provide the CHRC with the discretion to refuse to deal with a complaint where the alleged victim has not exhausted other reasonable avenues of redress, or where the act occurred more than one year before the complaint was filed. These requirements are in addition to those stipulating that the complaint fall within the CHRC’s jurisdiction, and are not trivial or made in bad faith.

Investigation of Complaints

If the commissioners accept the complaint, it is then further reviewed to determine the best course of action. This may result in returning the parties to mediation in order to find a mutually acceptable solution to the matter. If mediation is not appropriate, or is declined by the parties, then the file will undergo either a preliminary assessment or will be referred directly to a full investigation. With regard to the former, an officer will speak with the parties to determine whether there is sufficient information to bring the case to completion, or if further investigation is required. If a full investigation is needed, then officers will gather evidence about the alleged discrimination and provide a full investigation report.

Conciliation

After the preliminary assessment and/or full investigation, the commissioners can decide to dismiss the complaint if they feel the evidence does not support the allegations. If they feel there is sufficient evidence, the commissioners can then choose to send the parties to conciliation. Conciliation is similar to mediation in that it offers a structured and controlled process by which parties can work towards a mutually agreeable solution. It differs, however, in that the officer is mandated to give the parties an opinion on the likelihood of success in litigation at the Canadian Human Rights Tribunal, and the remedies that are likely to be achieved. Settlements obtained through conciliation are submitted to the commissioners for approval and are enforceable through the Federal Court of Canada.

Referral to the Canadian Human Rights Tribunal

If conciliation is unsuccessful or is inappropriate for a particular case, then the CHRC will refer the matter to the Canadian Human Rights Tribunal for adjudication. In regard to complaints under the Canadian Human Rights Act, parties cannot submit their case directly to the CHRT. A case may only be referred to the Tribunal by the Commission itself, and only after all other avenues of dispute resolution have been explored.

Once a referral has been made, the CHRT will first encourage the parties to resolve their dispute through voluntary mediation before proceeding to a full hearing. If this is unsuccessful, then the chairperson of the CHRT will assign one or three members from the Tribunal to hear and decide the case. These members are often referred to as a “Human Rights Panel.”

Canadian Human Rights Tribunal Hearings

During the hearing, all parties are given time to present their case. This includes the presentation of evidence and legal arguments, as well as the cross-examination of witnesses. In some instances (but not all), the CHRC will participate in hearings in a role similar to a crown attorney, presenting arguments with the intention of proving the violation of the Act. The average hearing lasts from five to seven days, and is normally held in the city or town where the complaint originated.

While the CHRT is a quasi-court, its hearings are not identical to regular court proceedings. The former are conducted in a relatively informal and expeditious manner. Furthermore, key procedures, such as rules of evidence and standards of proof, differ significantly. In criminal court cases, for example, the Crown must prove the existence of the alleged facts “beyond a reasonable doubt.” In human rights cases, by contrast, the standard of proof is less stringent. The complainant is only required to show that it is “more likely than not” that discrimination has occurred.

Decisions of the Canadian Human Rights Tribunal

After hearing the evidence and interpreting the law, the panel decides whether a discriminatory practice has occurred. Decisions are usually delivered in writing to the parties and the public. If the panel finds that a discriminatory practice has occurred, it will outline what sort of remedy should take place. In this context, the panel has broad discretionary powers, including the power to order the party engaged in the discriminatory practice to cease the activity, to order the party to take measures to redress the practice or to prevent it from incurring in the future, as well as ordering compensation to the victim for expenses, loss of wages or pain and suffering resulting from the practice.

For more information on particular decisions of the CHRT:

A party may seek judicial review of a CHRT decision by the Federal Court of Canada. If the Court disagrees with the initial decision, the case is generally referred back to the CHRT with directions to reconsider certain aspects of case. In some instances, the Court may direct the entire process to begin anew before a panel made up of different members, or may simply set aside the CHRT’s decision. A party may further appeal the decision of the Federal Court all the way to the Supreme Court of Canada.

Hearings under the Employment Equity Act

In the case of hearings under the Employment Equity Act, the process is slightly different. When the Canadian Human Rights Commission finds an employer to be in violation of the Act, it may issue a direction to remedy the non-compliance. If the CHRC determines that the employer has not complied with this direction, it may then apply to the chairperson of the CHRT for a confirming order. It may also be the case that the employer disagrees with the CHRC’s direction and, as a result, may apply to the chairperson for a review.

Upon receiving the request for the application or review, the chairperson will appoint a tribunal, referred to as an Employment Equity Review Tribunal, to hear the case. During the hearing, both the CHRC and the employer are given an opportunity to present evidence and arguments. After the hearing, the tribunal will render its decision in writing, and may either confirm, vary or rescind the CHRC’s original direction. Tribunal decisions under the Employment Equity Act can also be appealed to the Federal Court of Canada.


Key Issues Concerning the Canadian Human Rights Commission System

Role of the state, necessity of the commission system, and delays in dealing with cases

Role of the State in Addressing Discrimination

One of the more fundamental debates centres on the role of the state in dealing with societal discrimination. Some detractors of the human rights commission system argue that the state should not be used as a mechanism for dealing with discrimination, at least not in the sense of creating and enforcing legal prohibitions. As discussed earlier in this article, this line of reasoning tends to be based on a strong suspicion of the state as a means of social change. The government cannot be trusted to exercise coercion over individuals in order to stamp out discriminatory attitudes and practices in society. To do so, it is argued, is to open the door to abuses of power by corrupt or overzealous government officials. Instead, discrimination should be confronted through less coercive measure, such as moral suasion and public education.

Supporters of the human rights commission system, by contrast, argue that the state can and should be used as a mechanism for confronting discrimination. This line of reasoning tends to emphasize the severe harms that can result from discriminatory attitudes and practices, both to individual victims and society in general. Prevention of these harms, it is argued, justifies the use of state coercion, even at the cost of certain individual liberties. Moreover, supporters are often highly suspicious of the laissez-faire approach to dealing with discrimination. While public education and moral suasion may be critical, they alone are not sufficient to deal systematic discrimination in areas such as employment, housing, and the provision of services. Stronger techniques, such as legal prohibitions, must also be used to change, or at least mute, long standing social attitudes and practices.

Rationale for a Human Rights Commission System

Even if one supports the use of the state in addressing discrimination, one may still question the use of a human rights commission system. It may be argue that human rights legislation should be administered through the regular court system, just like other key rights documents, such as the Canadian Charter of Rights and Freedoms. Central here is a concern over the conduct of human rights agencies that have powers similar to a court, but operate outside of many long-standing judicial procedures which are intended to ensure impartiality and fairness. Such a system, it can be argued, opens the door to abuses by officials that are not fully trained in judicial practices, or whom may be overly biased towards alleged victims of discrimination.

This is a real concern in the context of the Canadian human rights commission system, and has been the focus of key court cases (e.g. the case of MacBain v. Canada, which resulted in the separation of the Canadian Human Rights Tribunal from the Commission). Supporters of the human rights commission system, however, can point to a number of safeguards built into the system. Decisions made by the both the Canadian Human Rights Commission and the Canadian Human Rights Tribunal may be appealed to, and reviewed by, regular courts. Moreover, in reviewing human rights cases, these courts often take the time to outline how the law ought to be interpreted by human rights agencies in future cases. As such, the Commission and Tribunal are not the final say in the interpretation and application of human rights legislation. This responsibility, instead, falls to the regular court system.

Supporters also emphasize the benefits of dealing with cases outside of the formal court system. Instead of requiring years of costly litigation, the commission system is intended to provide avenues of redress for victims which are expedient and do not involve a heavy financial burden. Moreover, the commission system usually deals with complaints in a much different manner than the regular courts. A central focus of the CHRC is the settlement of cases through mediation and conciliation, which involves negotiating a mutually agreeable solution between parties. Only when all avenues of negotiation have been exhausted are parties able to adjudicate their case. This is in stark contrast to the regular court system in which dispute resolution is based solely on the adversarial, zero-sum contestation of issues and evidence.

It is important to note that a significant paradox has developed in this context. Over the years, the Canadian Human Rights Tribunal has adopted many traditional judicial practices in order to ensure greater professionalism in its adjudication of cases. A result of this evolution, however, has been the development of a hearing process that is quite complex and time consuming. Hearings were once very informal, straightforward and expedient affairs, requiring minimal preparation and cost by the parties. This made the process very accessible to victims whom have little or no legal experience. Today, however, hearings are a much more formal and adversarial process, often involving a great number of procedural motions and preliminary objections that require formal rulings by the panel (Canadian Human Rights Tribunal, Annual Report 2007). As such, hearings have lost some of their expedience and accessibility.

Delays in Dealing with Cases

Another key issue centres on the ability of the Canadian human rights commission system to deal with its caseload in an efficient manner. A 1998 report of the Auditor General of Canada found that approximately half of the 900 open cases in 1997 remained unresolved one year later. A 2001 internal review conducted by the CHRC found that the agency took up to two years to investigate a complaint.

Delays in dealing with cases are also an issue for the Canadian Human Rights Tribunal. At year-end of 2007, 79 per cent of 2007 cases before the Tribunal still remained open, as well as 23 per cent of 2006 cases, 11 per cent of 2005 cases, and three per cent of 2004 cases. All cases referred to the CHRT prior to 2004 had been closed (Canadian Human Rights Tribunal, Annual Report 2007).

A number of different factors have been attributed to these delays. One explanation points to a double trend faced by the human rights commission system. On the one hand, the CHRC and CHRT have experienced large increases in their caseloads. In 1997, for example, the CHRT only opened 23 cases. By 2004 that number had increased to 139 cases, representing an increase of 600 percent in less than ten years. Meanwhile, the resources of these agencies have not been increased accordingly and, during the 1990s, have even been contracted. As a result, it is argued, the CHRC and CHRT do not have the institutional capacity to deal with the number of cases they are faced with. This explanation has been argued both by the CHRC itself, as well as in academic studies of Canada’s human rights commission system (e.g. Howe and Johnson, 2000).

The 1998 Auditor General report on the CHRC, by contrast, highlighted inefficiencies in the CHRC’s process for dealing with complaints as a contributing factor to the delays. The issue, therefore, was not simply inadequacy of resources, but the manner in which the CHRC utilized the resources it does have. Another explanation, in the specific context of the Canadian Human Rights Tribunal, has been the growing sophistication of the hearing process. As discussed above, hearings today are far more adversarial, and involve a greater number of procedural motions and preliminary objections that require a formal ruling by the panel. This, in turn, it has been argued, has resulted in longer proceedings.

Several initiatives have been undertaken to address this issue. Beginning in the 1990s, the CHRC has been provided with additional funding specifically targeted to help it deal with its backlog of cases. Moreover, both the CHRC and CHRT have instituted reforms in their management of cases to streamline the process. In 2007, for example, the CHRC introduced early resolution and preventative mediation at the pre-screening stage in order to facilitate quicker settlement of cases and by-pass the formal complaint process (with its time consuming investigatory and conciliation components). In order to increase efficiency in its proceedings, the CHRT has developed Rules of Procedure that set out clear expectations for disclosure. It has also introduced a cases management system that is intended to help parties identify and resolve their disclosure disputes at an early stage, as well as offers guidance on how to streamline their case presentation.


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