Canadian Experience

926. The Canadian Human Rights Tribunal, a quasi-judicial body created by the Parliament in 1977 through the Canadian Human Rights Act, ⁹⁶⁴ is mandated to inquire into complaints of discrimination prohibited under the CHRA and other complaints prohibited under the Employment Equity Act 1996 only.⁹⁶⁵ The CHRA makes it an offence for anyone to discriminate against any individual or group on eleven grounds, including race, national

961 “The Human Rights Review Tribunal (New Zealand),” The Ministry of Justice (New Zealand)’s website, available at http://www.justice.govt.nz/human-rights-review-tribunal/index.html

962 R D C Hindle, “The Human Rights Review Tribunal (New Zealand),” (7 October 2005), available at http://www.coat.gov.au/word/nz_chapter_word_docs/HumanRightsReviewTribunal.doc

963 Id.

964 The Canadian Human Rights Act, RSC., 1985, c. H-6, June 1998, Article 48 (1).

965 Canadian Human Rights Tribunal’s website, “About CHRT: Jurisdiction,” (6 January 2005), available at http://www.chrt-tcdp.gc.ca/about/jurisdiction_e.asp

or ethnic origin, colour, religion, age, sex, marital status, family status and sexual orientation.⁹⁶⁶

927. The Tribunal holds public hearings to inquire into complaints of discrimination and subsequently determines whether discrimination in contravention of the CHRA has occurred. If it has, the Tribunal determines the appropriate remedy and policy adjustments necessary to prevent future discrimination.⁹⁶⁷

928. Currently, the Tribunal “may only inquire into complaints referred to it by the Canadian Human Rights Commission, usually after a full investigation by the Commission.”⁹⁶⁸ Most cases have been resolved by the Commission without the Tribunal’s intervention.

Only cases involving complicated legal issues, new human rights issues, unexplored areas of discrimination or multifaceted evidentiary complaints with conflicting evidence, where issues of credibility are central are referred to the Tribunal.⁹⁶⁹

929. The tribunal is currently made up of fifteen Tribunal members: one full-time Chairperson, one Vice-Chairperson and thirteen full- or part-time members from across Canada. ⁹⁷⁰ 930. The cases referred to the Tribunal by the CHRC for determination has been increasing

throughout years in terms actual number and the percentage of cases that the CHRC has handled. In 2005, in the 863 cases which the Canadian Human Rights Commission dealt with, a total of 119 (14%) cases were referred to the Human Rights Tribunal, as compared to 109/1224 (12%) in 2004⁹⁷¹, 158/1037 (12%) in 2003, 70/729 (10%) in 2002⁹⁷², 85/262 (12%) in 2001, 123/820 (15%) in 2000, and 52/661 (8%) in 1999.⁹⁷³ 931. With the increasing caseload, the Tribunal now endeavours to improve its case

management. In 2004, is reported that the tone of hearings before the Tribunal “has become more adversarial” and “the hearing process more frequently subjected to motions and objections”.⁹⁷⁴ This has led to additional hearing days and hence unnecessary expense to the parties, to the Tribunal and the public in general as well. To address the challenge, the Tribunal implemented an active case management process in 2005 by

“conducting case conferences with the parties at strategic points throughout the

966 Canadian Human Rights Act, RSC., 1985, c. H-6, June 1998, Section 3(1).

967 Id.

968 Canadian Human Rights Tribunal’s website, Jurisdiction.

969 Canadian Human Rights Tribunal’s website, “About CHRT: Operations,” (6 January 2005), available at http://www.chrt-tcdp.gc.ca/about/operations_e.asp

970 Id.

971 Canadian Human Rights Commission, Annual Report 2005 at 17-8, Figure 6, supra note 329.

972 Annual Report 2003 at 8, Table 1.

973 Canadian Human Rights Commission, “Annual Report 2001,” (Ottawa: Minister of Public Works and Government Services, 2002) ISBN 0-662-66352-7 at 32, Table 6.

974 Canadian Human Rights Tribunal, “Annual Report 2004,” available at http://www.chrt-tcdp.gc.ca/pdf/annual04-e.pdf at 6.

hearing stage of the inquiry.”⁹⁷⁵ The Tribunal plays an active role in guiding the parties toward a streamlined and fair approach to the conduct of cases.

932. In June 2000, the Canadian Human Rights Act Review Panel recommended that the CHRC should not investigate individual complaint anymore. Instead, the complaints should be directed to the Human Rights Tribunal without the need for the complainant to first lodge a complaint before the CHRC and to wait until the CHRC conducts the investigation. Under the proposal, the CHRC can advise on all cases and can intervene in the cases as it deems appropriate.⁹⁷⁶ The CHRA Review Panel said:-

“The Panel considered whether an equality claim should be filed first with the Commission or with the Tribunal. We decided that the benefits of filing directly with the Tribunal outweigh the advantages of the Commission retaining some type of early complaint processing function. Even if the Commission were to make only preliminary-type decisions, there would still be the appearance of a conflict in roles. This apparent conflict would have a chilling effect on the Commission’s ability to carry out promotional activities. As well, there would be delays inherent in any type of investigation function necessary for the Commission to make a preliminary decision. Any time saved in having a review of claims by the Commission would carry with it most of the disadvantages of the current system.

In the Panel’s view, it would be preferable to have the impartial decision-making body already established under the Act make these decisions rather than to expect the Commission to perform a decision-making function…” ⁹⁷⁷

933. However, there have been no substantive measures taken to implement the above recommendation. As states above the Tribunal currently inquires into complaints referred to it by the Canadian Human Rights Commission, often after a full investigation by the Commission.

934. The Canadian Human Rights Tribunal commented that the above recommendation to

“would dramatically transform the structure and function of the Tribunal.”⁹⁷⁸ The Tribunal would need to appoint more members to cope with the larger caseload necessitated; to increase its research and administrative capacity; and to develop new

975 Canadian Human Rights Tribunal, “Annual Report 2005,” available at http://www.chrt-tcdp.gc.ca/pdf/annual05-e.pdf at 6.

976 CHRA Review at 6.

977 CHRA Review, at 6 Recommendations 32 and 33, supra note 154.

978 Canadian Human Rights Tribunal, “2004–2005 Estimates, Part III — Report on Plans and Priorities,” available at http://www.chrt-tcdp.gc.ca/pdf/rpp04-05efinal.pdf, Section 3, At 8.

methods of operation, including a new system of case management. But the Tribunal said it is ready for any reforms forthcoming.⁹⁷⁹

935. In May 2002, the Minister of Justice announced his intention to introduce amendments to the Act that coming fall. However, such amendments have not yet been introduced.⁹⁸⁰ 936. Professor Martha Jackman of the Faculty of Law in the University of Ottawa, while

proposed the expansion of the mandate of CHRA to social, economic and cultural rights, went so far to recommend the establishment of a specialized social rights tribunal “to receive and to hear complaints with respect to the ‘progressive realization’ of these rights.” ⁹⁸¹ Under her proposal, “the [social rights] tribunal would have broad remedial powers, but its orders would not come into effect until the House of Commons had sat for at least eight weeks, during which time the order could be overridden by a simple majority vote of Parliament.”⁹⁸² This recommendation is yet to be accepted.