September 13, 2002

The Honourable Geoff Plant, Attorney General
PO BOX 9044 STN PROV GOVT
VICTORIA BC
V8W 9E2

Dear Attorney General,

Re: Consultation on Proposed Amendments to the Human Rights Code

I am the President of the British Columbia Civil Liberties Association (the “BCCLA”). The BCCLA’s mandate includes not only the protection of civil liberties, but also of human rights, in the province of British Columbia. It is thus with considerable interest that we have reviewed your Government’s proposed amendments to the Human Rights Code.

In general, the BCCLA supports the desire to eliminate delay and duplication of resources, which appears to be the motivation behind many of the proposed amendments. There is no need to repeat in detail here the many criticisms which were leveled against the existing bifurcated Commission and Tribunal structure. The fact is that despite the undoubted good will and best intentions of those working within the Commission, the Code, as currently structured, mandates time-consuming, expensive (both for the system and for the parties) and often pointless procedures which do nothing to ensure fairer results, greater access to or improved public confidence in our human rights system.

Human rights, and the systems designed to protect and enforce them, are far too important to be allowed to be brought into disrepute by unworkable statutory structures.

The BCCLA therefore supports the bold experiment of eliminating the Human Rights Commission and allowing complainants direct access to the Human Rights Tribunal. But our support is conditional upon a structural and procedural framework and adequate resources being in place which will ensure that human rights will achieve full and fair protection under the new regime.

In this submission we will not comment on all of those proposed provisions with which we find ourselves in agreement, focusing our submissions instead on those areas in which we think further consideration or improvements are warranted.

I SUMMARY OF RECOMMENDATIONS

1. Tribunal Powers

It is essential that the Human Rights Tribunal have sufficient powers to enable it to fulfil its responsibilities fairly, flexibly and in a timely manner.

Screening Out Groundless Complaints
The Tribunal must have the statutory power to dismiss groundless complaints.

Flexible Hearing Procedures
The Tribunal must have the statutory and/or regulatory power to devise and implement flexible hearing procedures appropriate to the wide range of cases it hears.

Mediation
The Tribunal must have the power to encourage mediation, but mediation must remain voluntary on the part of the parties to be fair and effective.

Costs
There are difficult public policy issues raised by the new general power to order costs granted to the Tribunal. The Tribunal’s jurisprudence on this issue should be monitored to ensure that the public interest in human rights complaints being pursued is protected while at the same time minimizing unfairness to respondents.

Charter Jurisdiction
The question of whether the Tribunal should have Charter jurisdiction should be dealt with by way of an explicit statutory provision.

2. Tribunal Appointments and Resources

It is essential that the Tribunal be given sufficient resources, both human and material, to efficiently and fairly fulfil its responsibilities.

3. Time Limits

The time limit for filing complaints should not be reduced to six months but should remain at one year.

4. Public Education

The obligation to provide public education should be mandated by statute and should reside either within the Ministry of the Attorney General or in an independent body; it should not be included within the mandate of the newly formed human rights clinic.

5. Public Monitoring and Oversight

An independent body should be statutorily mandated to provide monitoring and oversight of human rights in the province.

6. Representation of Parties Before the Tribunal

The right to adequate representation before the Tribunal should be given statutory status. The human rights clinic has the potential to be a good model for the delivery of legal representation to complainants, but it is also essential that respondents who cannot afford to pay for counsel receive independent representation. In all cases, a party’s right to retain their counsel of their choice must be respected.

II TRIBUNAL POWERS

The elimination of the Commission alone will not be sufficient to cure the ills currently besetting our human rights scheme. While the Commission structure presented grave problems to the enforcement of human rights in our province, it is important to recognize that the Commission did perform certain functions that are essential to any workable human rights regime. The challenge will be to endow the Tribunal with all the powers necessary to fulfil its adjudicative responsibilities fairly, flexibly and in a timely manner.

a. Screening Out Groundless Complaints

One of the crucial, and generally unappreciated, functions which the Commission did play was the screening out of groundless complaints. It is essential that the Tribunal have the powers necessary to permit it to efficiently “weed out” those complaints which have no basis in fact or law. Not every one of the approximately 1,000 complaints which the Commission has historically received each year requires or merits a full hearing. The Tribunal, if it is not to be soon weighed down by a backlog of cases, must be able to fairly yet expeditiously dismiss such complaints. Similarly, the Tribunal needs to have the power to dismiss groundless defences to complaints.

It is questionable whether s. 27 of the Code, as amended, gives the Tribunal sufficient powers to dismiss complaints, and it gives it no power to dismiss defences. In particular, the deletion of s. 27(1)(c), which the Commission frequently used as the basis for dismissing complaints, may lead to the Tribunal being forced to hold hearings in cases where there is no prospect of the complaint being substantiated.

At a minimum, a provision analogous to s. 19(24) of the Rules of Court should be introduced to give the Tribunal the power to strike out a complaint, or part of a complaint, or a defence to a complaint, if:

it discloses no reasonable complaint or defence to a complaint, as the case may be,
it is unnecessary, scandalous, frivolous or vexatious,
it may prejudice, embarrass or delay the fair hearing of the complaint, or
it is otherwise an abuse of the process of the Tribunal.

b. Flexible Hearing Procedures

It is also essential that the Tribunal have a broad range of powers to be able to design different kinds of hearing procedures to deal with different kinds of cases. As you know, the Tribunal currently hears a great variety of cases, ranging from comparatively simple “he said, she said” harassment complaints to large, complex allegations of systemic discrimination. A one size fits all approach to such a range of cases will not serve the interests of the parties or the system at large.

While s. 35 of the Code, as it is proposed to be amended, does appear to give the Tribunal a broad range of powers in this regard, the regulations to be made under s. 49 will be crucial in terms of ensuring that the Tribunal will have the latitude, within the parameters of natural justice and administrative fairness, to create practices and procedures which will be responsive to the unique characteristics of each complaint which is brought before it.

Some attention should be given in this connection to s. 34(1) of the Code, which as amended will provide, in mandatory language, that a complaint is to be heard by either a single member or a panel. While fairness may require that all complaints be given some kind of hearing, the nature of that “hearing” may differ. For example, it may be appropriate for some complaints to be “heard” on paper only, without any oral hearing. Expedited hearing procedures should also be permitted and encouraged. In order to forestall judicial review applications challenging the fairness of such procedures, it would be advisable to make it clear that the nature of the hearing may differ according to the circumstances, and may not necessarily be an oral hearing.

c. Mediation

Also crucial to the fair and timely processing of human rights complaints is the availability of effective mediation services. Yet while mediation can be a highly effective and satisfactory means of resolving human rights disputes, it should not, in our view, ever be mandatory for parties to engage in mediation. Given the fundamental and yet highly personal nature of human rights it is, in our view, essential that mediation be voluntary. No complainant should be subject to any form of coercion to bargain away his or her human rights. Nor should any respondent be held hostage to mediating a groundless complaint made against them.

Two elements of the amendments cause us concern in relation to mediation. First, s. 27(1)(f.1) provides the Tribunal with the power to dismiss a complaint if a reasonable settlement offer has been made in respect of the complaint and has not been accepted by the complainant. We are opposed to this provision for three reasons. First, as a practical matter, this will not save the Tribunal any time because it will have to hear the case in sufficient detail to adequately assess whether an offer is appropriate in the circumstances. Second, it is simply unfair to place the complainant in the position of having to second guess himself or herself in mediation due to the threat of dismissal of the complaint. Inevitably, most complainants will settle for something less than they would otherwise be entitled to if they pursued their complaint on the merits in order to avoid that uncertainty and the stress of a hearing. Finally, there is an important public interest in the vindication of human rights which may be lost sight of in the amendment. For example, a complainant may be offered a sum of money which is consistent with what the Tribunal would award her were her complaint to be successful, but only on condition that she sign a confidentiality agreement. Such a complainant might reject the offer, preferring to pursue her complaint in order that there be a public airing of the dispute, in the hopes that the Tribunal will issue a decision vindicating her rights. When vindicated, such decisions can serve an important public education function. In our view, to permit complaints to be dismissed in such circumstances would be to undercut both the fundamental nature of human rights and the public interest in their protection.

The second provision which causes us concern in this respect is s. 35(1.1)(g), which would enable the Tribunal to make rules which would permit or require mediation. We have no quarrel with the proposition that the Tribunal should have the power to create rules which would permit and indeed encourage mediation; in fact, we strongly believe that such a power is necessary. At the same time, we do not believe that a party to a human rights complaint should ever be forced to enter into mediation against their will. For mediation to be fair and effective, it must be voluntary.

There are a number of reasons for this. First, parties forced into mediation against their will are unlikely to be able to resolve their dispute consensually, and thus the efficacy of such a procedure is highly questionable. Second, they are unlikely to come away from such an experience feeling they have been heard or treated fairly, thus leading to user dissatisfaction with the process. Third, it must also be recognized that there is a significant power imbalance between the parties to many human rights complaints. It would be unfair in such circumstances to force a complainant into mediation which could serve simply to reinforce that power imbalance. Finally, and as a matter of principle, it is simply never appropriate to force someone to bargain away their rights.

d. Costs

Under the proposed amendments, s. 37(4) would be amended to empower the Tribunal to award costs against a party to a complaint, including, but not limited to, circumstances in which a party has contravened a rule or order of the Tribunal. This represents a significant expansion of the Tribunal’s power to order costs, which formerly was limited to circumstances in which a party had engaged in improper conduct in the course of an investigation or hearing. Difficult public policy issues are raised by the subject of costs in a human rights proceeding. On the one hand, there is a significant public interest in encouraging complainants to make human rights complaints. If cost awards were routinely to follow the event, as in civil litigation, it would serve as a substantial deterrent to complainants pursuing their complaints, few of whom could afford to pay the respondent’s costs. On the other hand, defending against a human rights complaint can represent a significant cost to respondents, especially for small employers and service providers, which may appear unfair in cases where they are ultimately vindicated. It is also not clear how the power to order costs would interact with the provision of publically funded legal representation through the human rights clinic.

There can be no doubt that there are cases in which the Tribunal should have the power to order costs against a party: certainly cases of misconduct in the course of proceedings before the Tribunal, bad faith and contravening rules or orders of the Tribunal fall within this class. We are frankly unsure how much further the power to order costs ought to extend. It may be that the best course is to grant the Tribunal the general power to order costs and monitor how the Tribunal’s jurisprudence on this issue develops and what effect it has on both the parties to human rights disputes and the protection of human rights generally within the province.

e. Charter Jurisdiction

The white paper recently produced by the Administrative Justice Project, On Balance: Guiding Principles for Administrative Justice Reform in British Columbia, raises the question of which administrative bodies should have the jurisdiction to hear Charter challenges. We agree with the recommendation contained in that report that greater statutory direction should be given regarding which tribunals have the jurisdiction to hear Charter challenges, thereby avoiding time consuming and costly proceedings regarding the preliminary question of Charter jurisdiction. In the case of the Human Rights Tribunal, there are persuasive competing arguments both for and against granting the Tribunal Charter jurisdiction. The debate with respect to this issue will arise more directly in response to the white paper, but we wish to take this opportunity to state our firm view that the question of Charter jurisdiction for the Tribunal should be explicitly dealt with by statute so as to eliminate the ongoing uncertainty in this area.

III TRIBUNAL APPOINTMENTS AND RESOURCES

The proposed amendments to the Code raise issues regarding the staffing and resourcing of the Tribunal. The white paper, On Balance: Guiding Principles for Administrative Justice Reform in British Columbia, more directly addresses issues of tribunal appointments, resources and remuneration than does the current consultation process. But we wish to take this opportunity to make the following comments specifically in relation to the Human Rights Tribunal as the Government’s approach to these issues will be crucial to the success or failure of the new human rights regime envisioned by these proposed amendments.

First, it is obvious that the workload of the Tribunal will be substantially increased by the elimination of the Commission and the introduction of the direct access model. It will be necessary to increase the number of persons appointed to the Tribunal in order to address this increased workload. It will also be crucial that the Tribunal have sufficient front end intake staff to respond to the many potential complainants for whom the Tribunal will now be the first point of contact in the human rights system. We note that according to the Commission’s most recent Annual Report, their staff received over 19,000 telephone, e-mail and web site enquiries in 2001- 02. The administration of the human rights in this province will only be brought into greater disrepute if following these amendments the Tribunal develops a new backlog of cases due to inadequate staffing and other resources. The emphasis on mediation will also necessitate ensuring that there are sufficient, adequately trained, Tribunal staff, whether members or other employees, to provide mediation services.

Second, the legitimacy and credibility of our human rights system depends on the skill and expertise of the persons charged with making decisions under the Code. To this end, it is essential, in our view, that all persons appointed to the Tribunal be legally trained. The Tribunal deals with often complex legal and factual issues, and it is in our view simply unrealistic to expect that a person without legal training could perform the Tribunal’s adjudicative functions. This requirement should be enshrined in statute.

Third, consideration should be given to the remuneration paid to members of the Tribunal. Human rights are fundamental rights, quasi-constitutional in status. That status should be reflected in the remuneration paid to those persons entrusted with interpreting and enforcing them.

IV TIME LIMITS

Another area of concern is the amendments proposed to ss. 22 and 27(1)(g) of the Code, which would reduce the time period for filing a complaint from a year to six months. Persons who have been subject to a violation of their human rights may not be immediately aware of the fact that they have any legal recourse. Whether they are aware of their rights or not, the effects of the discrimination suffered may be such as to make it difficult for them to pursue their rights shortly after the events in question. Many acts of discrimination, including but not limited to cases of sexual harassment, are highly traumatic, with the result that a victim may need some time before he or she is able to file a complaint. We are unaware of any difficulties or unfairness to respondents created by the current one year limitation period and would strongly submit that that time period ought not to be reduced.

V PUBLIC EDUCATION

By eliminating the Human Rights Commission, its public education functions, which were formerly enshrined in the Code, have also been eliminated. We understand that as a matter of policy your Ministry has decided to create and fund an independent human rights clinic, whose functions will include preventative public education. This initiative, while a promising indication of your Government’s commitment to public education about human rights, is in our view inadequate in two respects.

First, the absence of any statutory requirement for public education in human rights is deeply troubling. Our human rights enforcement regime is designed to respond where a problem has already arisen and to provide redress where someone’s human rights have been violated. While this is essential, it would of course be far better to prevent human rights abuses in the first place. Public education is a crucial element in attempting to reach that admittedly unattainable goal. Given the importance of public education in this area, the obligation to provide such education should be explicitly created by statute, not left to the vagaries of the governmental policy of the day.

Second, it is in our view inappropriate for the human rights clinic to be given the task of providing preventative education and training. One of the frequent criticisms of the old Commission structure was that it combined too many, probably inconsistent, functions in a single entity. The potential for a conflict of interest, or at least a perceived bias, in a single Commission charged with public education, mediation and investigation of complaints, and representing the public interest in specific human rights complaints, was simply too great. One of the consequences of that combination of functions was that the Commission’s often excellent attempts at education were viewed with grave suspicion by the potential respondent community, especially by employers. Such persons and companies simply had a difficult time believing that the educational materials provided by the Commission were fair and unbiased, given the Commission’s perceived role as an advocate of complainants. This was so despite the fact that in its investigative and gate-keeping functions the Commission was at pains to make clear that it was neutral and did not function as a complainants’ representative.

How much greater will the opportunity for a perception of bias to arise if the human rights clinic, whose primary function is in fact to represent complainants, is also charged with the task of public education? We predict that any attempts on the clinic’s part to provide educational materials for respondents or potential respondents will be, at best, ignored.

The public education function should reside instead either with an independent body devoted solely to human rights education or alternatively within government itself, within the Ministry of the Attorney General. Again, given the crucial significance of public education on human rights, the requirement that such education be provided should be mandated by statute.

VI PUBLIC MONITORING AND OVERSIGHT

The proposed amendments would eliminate all oversight and monitoring functions performed by the Commission and the Human Rights Advisory Council, including those previously mandated by ss. 3(f), 6, 18, 19 and 20 of the Code. While there was unnecessary duplication of resources in both the Commission and the Council having oversight responsibilities, in our view, it is important that some independent body be charged with the function of monitoring the overall status and progress of human rights in this province. As part of that monitoring function, this body should be charged with producing an annual report which would include reporting on important cases decided by the Tribunal. If an independent body were created to fulfil the Government’s stated commitment to public education, this monitoring function could readily be combined with those public education duties. Again, the creation of such an independent body should be enshrined in legislation.

VII REPRESENTATION OF PARTIES BEFORE THE TRIBUNAL

We also understand that as a matter of policy the Government has chosen to fund an independent human rights clinic to represent parties before the Tribunal. We do not know whether it is intended that the clinic will represent both complainants and respondents or what the conditions or criteria for receiving assistance from the clinic will be.

We are pleased that the Government has chosen to fund a clinic and believe that this has the potential to be a good model for ensuring that human rights complainants receive adequate representation in human rights disputes. As in the case of public education, we are concerned, however, that the commitment to fund representation is being left as a matter of policy, rather than being enshrined in the Code itself. Given the often complex and personally trying nature of human rights complaints, it is essential that parties have adequate representation available to them—this right should be given statutory status.

Two other matters require comment in this regard. First, it is in our view wholly unrealistic to expect that the clinic will represent both complainants and respondents. Besides the obvious potential for direct conflicts of interest arising where both parties to a dispute are represented by the clinic, it is unrealistic to expect that a clinic which will have as its natural focus the representation of complainants will also be able to fairly represent respondents or that respondents would wish to be represented by such an entity.

Yet the problem remains of ensuring that no respondent to a human rights complaint is unfairly prejudiced by a lack of resources to retain adequate counsel. Many respondents will have the financial resources to pay for their own representation. But there will be some who cannot reasonably be expected to pay for legal representation. Some mechanism, such as a legal aid tariff available to the private bar, needs to be in place to ensure that respondents who are financially unable to pay for legal representation do have access to the legal advice and representation they need to ensure both that their interests are adequately protected and that the system is not bogged down with unrepresented respondents.

Second, while we have no doubt that the clinic as envisioned will provide good quality representation to qualified complainants, it is important that complainants’ freedom to retain the counsel of their choice be respected. Thus, it is important that complainants with the resources to do so remain free to retain independent counsel should they wish to do so.

CONCLUSION

We have been pleased to take this opportunity to provide our comments on your Government’s proposed amendments to the Human Rights Code. While our comments and recommendations have focused on those aspects of the amendments which we believe require improvement in order to strengthen the protection of human rights in our province and to ensure fairness to all parties involved in human rights disputes, we wish to emphasize our support for the introduction of the direct access model and the elimination of the Commission.

From the statements which you have made, both in the Legislature and in public press releases, it appears that your Government has a real commitment to ensuring that British Columbians are provided with a timely, affordable and fair mechanism for resolving human rights disputes. We commend you for this commitment and ask you to ensure that that commitment is fully reflected in these crucial amendments to the Human Rights Code. The human rights system in British Columbia has seen many, often well-intentioned yet always unsettling, legislative changes in the past years. The system has been held up to sometimes, though not always, well-deserved scorn in the media. British Columbians need to have a sense of stability in our human rights regime and to know that their Government is fully committed to ensuring a fair, affordable and accessible system of human rights protection for all our citizens. The BCCLA urges you to be open to making the further legislative amendments recommended in this submission and to take the time necessary to ensure that this round of legislative amendments to the Human Rights Code will bring British Columbians that sense of stability and commitment.

Lastly, and while it does not come within the ambit of the present round of procedural and structural amendments, the BCCLA wishes to take this opportunity to state our continued interest in the substantive review of our human rights law. In particular, as you may know, the BCCLA is opposed to s. 7 of the Code as inappropriate in a free and democratic society that respects freedom of expression. As recognized in your letter of March 26, 2002, the substantive review of the law governing grounds and protections is important, and we look forward to participating in that discussion.

We would welcome an opportunity to discuss our views on both the present procedural and structural amendments and possible future substantive amendments with you or your Ministry’s representatives.

Sincerely,

John Dixon
President