The Human Rights Act has been amended several times but not substantively reviewed since enactment in 1984. The B.C. Civil Liberties Association welcomes this opportunity to comment on the content and administration of the Human Rights Act (hereinafter referred to as ‘the Act‘).
Public policy on anti-discrimination finds expression in human rights legislation. Under it, the state acts through a designated human rights agency to carry out the dual functions of educating about and protecting human rights, and providing a legally enforceable mechanism for dealing with human rights violations. In some jurisdiction, human rights agencies take on a quasi-prosecutorial function by acting for the complainant in prosecuting a human rights violation.
Laws that seek to protect individuals from discrimination may be said to have quasi-constitutional status, giving such legislation preeminence over ordinary legislation. The BCCLA is vitally concerned that any review of human rights legislation consider the need to balance the public interest in eliminating illegal discrimination with the need to protect individual rights and freedoms from unwarranted interference by the state.
Speaking for the Supreme Court of Canada, Dickson, C.J., set out some guiding principles on the interpretation of the human rights legislation in C.N.R v. Canada (Canadian Human Rights Commission), [19871 1 S.C.R. 1114 at 1134:
Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation, the words of the Act must be given their own meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize these rights and to enfeeble their proper impact.
The same court in O’Malley v. Simpson-Sears Ltd.,[19851 2 S.C.R. 536 commented that human rights legislation aims to prevent or remove discrimination. Such legislation is remedial, not punitive; its primary focus is not to punish the discriminator but to provide relief to the victims of discrimination. Another no less important aim is to educate and promote respect for civil rights and freedoms. These principles are endorsed by the BCCLA and should, in our opinion, guide and inform us in the task of creating a fair and equitable human rights scheme.The two main areas of review in this submission are as follows:
(a) Does the current legislation provide adequate protection against discrimination?
(b) Is the process of investigation and adjudication fair and efficient?
In 1993, the Human Rights Amendment Act (Bill 33) amended Section 2 of the Act, which previously stated as follows:
2.(1) No person shall publish or display before the public, or cause to be published or displayed before the public a notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against a person or class of persons in any manner proscribed by this Act.
(2) Notwithstanding Subsection (1) but subject to the Civil Rights Protection Act, a person may. by speech or in writing, freely express his opinions on a subject.
Those familiar with the aims of our association are aware that we oppose any attempt by the state to restrict freedom of expression, even where well-intentioned as in section 2 above, where the state has legislated that prohibition of discriminatory messages is a valid restriction on speech and expression. We have previously argued against any form of hate speech laws. We believe that there are compelling arguments to be made against curtailing so-called discriminatory speech. We also question whether an administrative tribunal should set the boundaries for free expression, and what balancing process is needed to ensure that free speech protections are preserved.
Our recommendation is that section 2 of the Act be deleted; failing which, we believe that a carefully worded and narrow prohibition, with suitable free speech defences, would be the least intrusive incursion on free speech rights. Amendments to section 2 in 1993 deleted an exemption clause, protecting freedom of expression, which exemption language is found in the majority of human rights statutes across Canada.
Without the exemption language, the presently worded section 2 is a significant erosion of free speech rights.
The Supreme Court of Canada in Taylor v. CHRC(1990) 75 D.LR. (4TH) 577 commented on the effect of the exemption clauses in the following manner:
Perhaps the so-called exemptions found in many human rights statutes are best seen as indicating to human rights tribunals the necessity of balancing the objective of eradicating discrimination with the need to protect free expression… (per Dickson J.)
The current section 2 has no such exemption clause, and its wording is not directed expressly to prohibiting expressions of actual or intended discrimination “in any manner prohibited by this Act”.
In its attempt to promote tolerance, section 2 overreached; its effect, although unintended, limits non-harmful expression and stifles public discourse. For example, posters, buttons, notices or commentary in the print or electronic media which express a negative opinion, for example, on immigration on the grounds of race or place of origin, or otherwise comment negatively on same-sex spousal benefits as an unfair burden on society, may well be the subject of an attack under Section 2 of the Act. These very issues deserve a wide public hearing and ought to be the subject of vigorous debate. It is the position of the BCCLA that government-sanctioned restrictions on free expression, such as in section 2, are inimical to the furtherance of a free and democratic society. Nonetheless, if government policy is to provide, through legislation, public censure of discriminatory expression, there is a corresponding duty to remind tribunals that they must be prepared to justify that limitation on expression is constitutionally valid and does not cover expression the legislature did not intend to restrict.
The current section 2 raises several concerns: it is overly broad in its scope and it fails to expressly preserve the right of individuals to engage in the free expression of opinions and ideas; it fails to expressly set out the need to strike a balance between two competing interests, one being the right to be free from discriminatory conduct and the second being the right to engage in free expression of ideas, by speech or in writing; and it virtually denies the value of education and of debate in the formation of informed and tolerant public opinion, both of which produce the effect of non-discrimination sought through section 2.
Recommendation 1: Section 2 of the Act should be repealed or, alternatively, section 2 of the Act should be amended to
(a) limit the prohibition against discriminatory publication in the manner set out in Appendix A herein;
(b) include an “exemption clause” stating that nothing in section 2 shall be deemed to interfere with the free expression of opinion on any subject or the right of a person to communicate, by speech or in writing, opinions on any subject; and
(c) set out a strict standard of harm which must be satisfied by persons invoking the section, with defences for the respondents.
If restriction of speech is to be included in the Act, amendments (a)-(c) would strike a balance between the two significant interests of freedom from discrimination and freedom of expression, and would provide direction to the tribunal to consider and to weigh these competing interersts in any adjudication under the section.
This section prohibits a person from denying or discriminating against any person with respect to any accommodation, service or facility customarily available to the public unless the discriminator can establish a bona fide and reasonable justification. Subsection 3(2) expressly indicates that a person does not contravene the section by discriminating on the basis of sex, or on the basis of physical or mental disability, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.
Subsection 3(2) provides in essence a blanket exemption to insurers from complying with the non-discriminatory provisions of Section 3. If insurers are permitted by law to make distinctions on the grounds of sex, or physical or mental disability, in determining premiums or benefits under contracts of life or health insurance, then the onus must be on the insurer as the party seeking the distinctions to establish that the differential treatment on these grounds is based on reasonable and bona fide factors.
On this point, we refer to comments of the Supreme Court of Canada in Zurich Insurance Co. v. Ontario (Human Rights Comm.) 1992,16 C.H.R.R. D/255 (S.C.C.) asserting that a prima facie discriminatory practice in the insurance industry must be reasonable and there must be no practicable alternative. The Ontario human rights legislation requires an insurer who wishes to make distinctions on the basis of sex or disability to establish that those distinctions are made on reasonable and bona fide grounds.
Significantly, the words ’bona fide’ are qualifiers in subsection 8(3) but not so in subsection 3(2) of the B.C. Act. Under section 8(3), discrimination in employment may be permitted on the basis of age if under a ’bona fide’ scheme based on seniority. Also, discrimination on the basis of marital status, physical or mental disability, sex or age is permitted in employment if it relates to the operation of any ’bona fide’ retirement, superannuation or pension plan or to a ’bona fide’ group or employee insurance plan. It is inconsistent to require employment-related insurance plans to justify discrimination on any of the enumerated grounds but not so the provision of insurance services at large. We recommend that this inconsistency be removed.
Furthermore, we note that subsection 8(3) would permit discrimination on the basis of pregnancy in determining premiums or benefits under a group or employee insurance plan. That is, under section 8(3), a pregnant woman may be denied benefits or be discriminated against under an employment disability plan if she seeks payment of benefits due to health-related absences caused by pregnancy.
In Alberta Hospital Association et al v. Susan Parcels, the Board of Inquiry found that the hospital had discriminated against Susan Parcels by requiring that she prepay 100% of her benefit premiums during her maternity leave, when other employees who were absence for non-pregnancy health-related reasons were not so required. The Board ruled that employers must compensate their pregnant employees when they are absent from the work place for valid health-related reasons in the same way and at the same level as they compensate any employee absent on sick leave.
It is the view of the BCCLA that the onus should be on those seeking to make a distinction on the basis of sex, or on the basis of physical or mental disability, or on any other protected ground under the Act, to show that the distinction is indeed based on bona fide and reasonable grounds.
In this instance, we are of the view that the life or health insurance industry ought not to be given a blanket exemption but must satisfy a certain threshold of reasonableness in the setting of premiums or in the provision of benefits or other amenities to the public.
Recommendation2: Subsections 3(2) and 8(3) of the Act be amended to require that any permissible discrimination on the basis of a protected ground under the Act (i.e., age, disability, sex) whether in employment or in the provision of services or facilities to the public, be on reasonable and bona fide grounds.
Section 4 prohibits discrimination against a person seeking to purchase real property on the basis of a number of prohibited grounds which do not include age or family status. Presently, in British Columbia, persons may be denied the opportunity to purchase property because they are either too young, too old, or have children in their family group. There is no good reason why discrimination on the basis of age or family status may be permitted in the purchase of property. To permit discrimination on these two grounds is to foster the stereotype that persons under a certain age are not welcome neighbours or that persons who have young children in their households are not acceptable co-owners.
Multiple-unit housing complexes can control concerns about noise or damage by enacting and strictly enforcing appropriate bylaws. This remedy is directed at the individual level and does not unfairly impose burdens on prospective purchasers of property because of preconceived and negative stereotypes as to age and family status.
Under the tenancy provisions of the Act, complexes designated predominantly for tenants aged 55 years or older are permitted to exclude persons not meeting the age criterion. We believe that a reasonable compromise between the differing housing needs and interests of senior citizens and young families may be to provide exemptions available under subsection 5(2) of the Act for purchasers of real property. Subsection 5(2) of the Act prohibits discrimination in tenancy due to age or family status, but provides a limited exemption on the basis of age if every unit in a complex is reserved for persons at least 55 years of age.
Recommendation: Section 4 be amended to include age and family status as protected grounds in the purchase of property. A limited protection for senior citizens such as under the tenancy provisions would he permissible.
Subsection 5(2) of the Act permits discrimination on the basis of family status, or age in rental of units to persons 55 years of age or older. For the reasons set out above, we would recommend that the protection for seniors be preserved.
One further area in which discrimination arises in respect of tenancy is the source of income of the prospective tenant. Tenants who are on social assistance, unemployment insurance benefits, Workers’ Compensation benefits or other disability benefits may find that landlords are reluctant to rent premises to them because of a preconceived view that the tenant will not make good on rental payments. In fact, offers to pay the rent directly from income assistance to the landlord have been refused.
The Residential Tenancy Act was amended on May 26, 1994 to prohibit discrimination in rental accommodation based on a lawful source of income. Persons alleging discrimination on this basis will be able to file a complaint under the Human Rights Act.
The Human Rights Actshould also set out express protection available to tenants alleging discrimination on the basis of source of income, subject however to the right of a landlord to deny rental of premises if a credit investigation or reference check indicates that there are reasonable grounds for believing that the applicant would not be able to meet his or her contractual obligations or the timely payment of rent.
Recommendation: Section 5 of the Act be amended to include source of income, age and family status as protected grounds.
At present, the Act protects against discrimination in employment because of conviction for a criminal or summary conviction charge that is unrelated to the employment or to the intended employment of a prospective or current employee. There is no protection under the Act in tenancy, access to public facilities, purchase of property, et cetera, for a person with a criminal record. Our experience indicates that criminal record information is fairly widely available to landlords, albeit illegally if written consent to obtain a criminal record search is not obtained. The Act is inconsistent in providing protection in employment but not so in housing or in access to public facilities, and specific protection under the Act is warranted.
Recommendation: The Act provide protection against discrimination to a person with a conviction for a criminal or summary conviction charge in respect of public facilities, purchase or property and tenancy, with a defence available on the basis of a bona fide and reasonable justification.
It appears on a reading of the Act that those sections which were proclaimed in 1984 refer to persons in the masculine form. For example, section 10(2) states as follows:
The Lieutenant Governor in Council shall designate a member of the Council as Chairman.
Section 10(3) states that each member of the Council shall be paid the actual reasonable expenses incurred by him in discharging his duties. Yet, section 11(4) refers to the ’Chair of the Council’ instead of ’Chairman’.
Recommendation: The BCCLA recommends that the B.C. Human Rights Act be written in gender neutral language.
Under the present system, the B.C. Council of Human Rights is charged with receiving, investigating and adjudicating complaints of human rights violations. The Council is further expected to undertake public education initiatives on human rights throughout the Province. The demand on the Council and staff to dispose of complaints in a timely manner of necessity relegates public education to a secondary role. In fact, the Act does not specifically authorize the Council to carry out any public education duties even though the accepted wisdom is that a primary focus of human rights administration is to influence the attitudes of the general public through education, namely, to foster an appreciation of civil rights and protections (including human rights) necessary to develop tolerance of diversity.
The BCCLA is of the view that it is important to segregate the adjudicative functions that require considerable expenditures of time, money and resources, from the implied but equally necessary educative functions under the legislation. For the reasons outlined below, we recommend that the human rights machinery in British Columbia be administered by two separate divisions, one charged with the carriage of the adjudicative function and the other responsible for the educational and administrative functions of the agency.
The 1992/93 Annual Report of the B.C. Council of Human Rights indicates that of new complaints received in this period, 81% cited discrimination in employment. The largest category of complaint on the basis of prohibited grounds was sex discrimination, which includes sexual harassment and pregnancy. The singular and predominant focus of the government in promoting human rights should be to deploy its efforts in reaching employers’ organizations, occupational associations, and trade unions to outline protections and remedies available under the Act. Similar outreach educational programs could provide information about prohibited conduct and avenues for redress available under the legislation to women.
We think that it is preferable to have a two-pronged approach to human rights education. It is important to have an agency, such as a human rights commission, that sustains a public and officially sanctioned role in promoting human rights. It is equally essential to ensure that community groups and grass roots organizations have the resources to educate members of their own constituencies about protections available to them under the Act. So long as the present Council is required to carry out both the adjudicative and educational functions, we fear the educational function will of necessity become secondary due to the ongoing and pressing need to resolve outstanding complaints.
Therefore, it is the recommendation of the BCCLA that the Minister responsible for Multiculturalism and Human Rights create a Commission to which qualified individuals are designated whose primary function would be to promote human rights in the province and to report on the status of human rights on a periodic basis. We further recommend that a specific budget be allocated to educational activities as otherwise we would expect that the costs of investigating and adjudicating would absorb a significant amount of the agency’s resources.
We suggest that in addition to its educational mandate, the Commission be charged with receiving human rights complaints, investigation of such complaints, and pre-hearing disposition through mediation. By keeping track of the number and nature of the complaints, the Commission could determine what areas (i.e. employment, tenancy) should be given priority in public education or what constituencies require outreach.
We think the Commission should be independent of government and that members should serve for a set, non-rescindable term of tenure. The Commission should be able to initiate its own complaints and have carriage of such complaints through its own counsel. The Commission should be able to intervene in certain complaints if the case is one which has a systemic component.
Apart from education, an important role of any human rights agency is to receive, to investigate, and to dispose of human rights complaints in a fair and impartial manner. At the risk of oversimplifying the process, we think an agency’s work is divided into three general streams:
- complaint intake and investigation
- mediation or settlement
- complaint adjudication.
Investigations ought to be carried out by specially trained teams of investigators appointed solely to deal with human rights complaints. We understand that in 1992-93 the Council received the assistance of a team of trained investigators appointed solely to deal with human rights complaint. Their task was to collect facts surrounding the alleged discrimination, to obtain relevant records and documents, and to prepare a summary of results of each investigation. They helped to clear a substantial backlog of complaints in a short time.
We understand that nearly one third of all complaints received by the Council in 1992-93 were disposed of by settlement, predominantly during investigation. We later comment on whether this is the appropriate stage and mechanism for settlement.
It is important to keep the investigative branch in the same system as the educational branch so there is sharing of information. Those charged with educating the public should know the status of the human rights climate in the province from time to time, the nature and categories of new complaints and their disposition. At the same time, it is important to keep the investigative branch separate and apart from the adjudicative branch so that the ultimate trier of the case will be seen to be fair and impartial and not influenced by attempts at mediation or settlement, or perceived to be biased due to the adjudicator’s affiliation with the human rights machinery.
We do not propose to set out any detailed administrative structure at this time, as it is beyond the scope of the present analysis. We note, however, that other jurisdictions keep the adjudication of complaints separate and distinct from other human rights activities. We therefore suggest that the adjudicative branch be similar to the present structure of Council, being a Chairperson and four Council Members. The Administrative branch, which we refer to as the Commission, should be composed of three paid Commissioners charged with overseeing complaint intake, investigations and mediation, and education. It may well be appropriate for the Commissioners to carry out mediation at an appropriate stage of the proceeding. The Administrative Branch would be assisted by an Intake Manager and staff, a Manager of Investigations and staff, and support systems of personnel which is essentially similar to the set-up the Council presently enjoys.
Recommendation: Human right education and complaints handling be administered by an agency composed of a board of commissioners and staff. Educational programs and activities should be budgeted separately from investigation. The investigation of complaints, under the direction of the board of commissioners, be conducted by a team of trained officers whose duties are confined to human rights matters. The adjudication of complaint be conducted by a separate arm of the agency composed of a panel of adjudicators having the powers and term of tenure of council members under the Act.
In 1993, section 11 of the Act was amended to allow a group or class of persons to file a complaint under the Act. The Council retains discretion not to deal with the complaint unless the person alleged to have been discriminated against consents, or the complaint is in the interest of the group or class on behalf of whom the complaint is made. No person should be made to take part in an adversarial process as a complainant unless that person expressly consents.
If the complaint is of such a nature that it directly affects a vital interest of the community to which the third party or surrogate complainant belongs, then the third party ought to be given standing to launch the complaint if the threshold for standing is satisfied. It should be remembered that the third party complainant who meets the threshold for standing under the Act in fact becomes a party to the proceedings and may have conduct of the carriage of the complaint to its conclusion.
The Act, however, is silent on the question of intervenors. An intervenor is a person or class of persons whose legal rights of financial interest is not directly affected by the outcome of a particular complaint but the legal result of a case is important or significant to the intervenor. For example, the BCCLA’s views on freedom of expression may be useful to an adjudicator hearing a complaint of discriminatory publication under section 2 of the Act. Unless the BCCLA were to be a complainant, its views on this issue would not be heard unless it were granted intervenor status. When a specific issue is remitted for hearing that may have wide public import, it would assist the person hearing the complaint to have the discretion to permit interventions by persons or entities who bring a point of view to the issue that may not be raised by the original parties.
Recommendation: The Act contain a mechanism which allows for intervention where the applicant satisfied the adjudicator that the intervention will be of assistance and will be related to a question or issue to be determined by the adjudicator.
Under section 13 of the Act the Council has a discretion to decline to proceed with the investigation of a complaint on the basis that the complaint is not within its jurisdiction, is filed more than six months after the facts giving rise to the complaint arose, is more appropriately dealt with under another Act, or is trivial, frivolous, vexatious or made in bad faith.
Under B.C. Supreme Court Rules, specifically Rule 19(24), the Supreme Court has the discretion to strike out the whole or part of a pleading on the ground that, inter alia, it discloses no reasonable claim or defence as the case may be, or it is unnecessary, scandalous, frivolous or vexatious. A number of court decisions have interpreted the meaning of Rule 19(24), with the result that there is a considerable body of jurisprudence on the early disposition of a complaint on grounds similar to those contained in the Human Rights Act.
We recommend retaining the grounds for dismissal under section 13 of the Act.
It is our view that an administrative officer or Commissioner at the intake stage or an adjudicator at a later stage should have a discretion to dispose of complaints which appear on a careful examination to be without merit. Under the Saskatchewan Human Rights Code, Regulation Section 7(1), the director or assistant director is required to determine whether, upon the fact of the complaint, or during the investigative process, the complaint is without merit. If so, the complaint shall be dismissed, with the right of the complainant to apply to the Commission for reconsideration of the matter within ten days of the notification of dismissal. The discretion to dismiss a claim on the basis of a lack of merit, or that it discloses no reasonable claim, should be incorporated into the language of the B.C. Act, along with the right of the complainant to seek a reconsideration.
Whether a complaint lacks merit will have to be determined on the facts of each case. For example Council may receive a complaint that the men’s restroom of a facility has lesser toilets than the women’s restroom. On its face, there is evidence of unequal facilities on the basis of sex. Nevertheless, it should be within Council’s discretion to decline to proceed with an investigation on the basis that such a complaint lacks merit.
It is our view that since, under the B.C. Act, the complainant is not liable for costs if the complaint is not proven at the end of a proceeding, a respondent should be given an early opportunity to have the claim dismissed in a summary fashion if there is no reasonable basis for the complaint of discrimination. Without the means of a summary disposition or dismissal, a respondent will be forced to incur time and unnecessary expense in responding to a complaint that may be without foundation. Unless the Act is changed to permit costs, at the discretion of the adjudicator, to the respondent upon the dismissal of a complaint, the Act should provide an avenue where a respondent can persuade an adjudicator to decline jurisdiction or dismiss at an early stage on the basis of lack of merit or insufficient evidence.
The Ontario Human Rights Code permits a board of inquiry that dismisses a complaint to order that the Human Rights Commission pay to the person complained against, such costs as are fixed by the board.
Such an order may issue if the complaint was trivial, frivolous, vexatious or made in bad faith or in the particular circumstances undue hardship was caused to the person complained against. In Johnson v. East York Board of Education et al., (1991) CHRR D/175, the Board of Inquiry ruled that the complainant failed to attempt to advance his case in an orderly manner and there was no evidence before the Board to support the complaint. The Board then considered the issue of costs in circumstances where the initial complaint was filed December 3, 1984 and disposed of by dismissal on July 5, 1991. The Board ordered the Commission (which had carriage of the complaint) to pay the respondent’s legal costs on a solicitor/client basis.
Under the B.C. Act, there is no jurisdiction to order costs (payment of legal fees) or to order payment of disbursements. In our view, a discretion should vest with the adjudicator to order payment of expenses (excluding legal fees), to the successful party. A successful complainant would be permitted to recover expert witness fees, for example, and a successful respondent would recover similar expenses where the complaint has not be made out. If the carriage of the complaint is by funding through legal aid, the Legal Services Society would be permitted to apply for recovery of disbursements, but not solicitors’ costs. It should be noted that under the Small Claim Act, the judge has authority to order that the losing party pay the expenses but not the legal costs of the succeeding party and consideration should be given to providing similar authority to the Human Rights adjudicator.
Recommendation: The grounds set out in section 13 of the Act be retained for not proceeding with an investigation of a complaint. The Act provide for dismissal of a complaint in summary fashion prior to a formal hearing on the basis of a lack of merit or insufficient evidence. The adjudicator be provided with a discretion to award expenses, but not legal costs, to the successful party.
The B.C. Act has a six month limitation period, which may be extended if the Council is satisfied that the delay in filing the complaint was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
The six month limitation period is an unfair burden to impose on complainants, in our view. Harm caused to a person by reason of discrimination is in the nature of a civil wrong which is proscribed by statute. The statute provides in this instance for a six month period within which to file a complaint. While the Supreme Court of Canada in Bd. of Gov. of Senaca College v. Bahdauria  2 A.C.R. 183 declined to recognize a tort of discrimination, the damage which arises from discrimination parallels the damage which arise under tort. Damages for non-pecuniary loss such as suffering, embarrassment, humiliation as well as damage for pecuniary loss such as lost wages parallel the damages for pain and suffering and economic loss in tort claims.
Therefore, a compelling argument exists that the limitation period for filing human rights complaints should be consistent with the two year limitation under the Limitations Act for the filing of tort claims.
On the other hand, there is a significant difference between filing a tort claim and submitting a human rights complaint. In the former, the decision to launch a suit involves discovering that the damage has occurred, deciding whether one can afford a lawsuit, obtaining sufficient funds, meeting and retaining a lawyer, and so on. To rile a human rights complaint involves telephoning the human rights branch and obtaining, completing and submitting a complaint form.
Council’s 1992-93 annual report does not indicate what number of complaints were filed outside the six month limitation period or the degree to which Council exercised its discretion to extend the time for filing. We do not know how many complaints were not filed simply because six months had passed since the occurrence of the discrimination. Victims of discrimination (visible minorities, women, new immigrant) are likely to be unsophisticated about their rights, especially about the effect of limitation periods. The Act should provide a longer period within which to file a complaint than the present six months.
We recognize that any extension of the limitation period beyond six months will likely mean a corresponding delay in filing a complaint. This increases the risk that significant evidence will be lost or made more difficult to obtain or that critical witnesses may disappear. The risk of losing valuable evidence to prove a claim of discrimination, however, falls on the complainant who delays in filing the complaint in a timely manner. We are mindful that a delay in filing a complaint impacts also on the work of investigators whose job may be made more difficult when the sources for facts regarding the allegation are not readily at hand. Delay also impacts on evidence potentially available to respondents in defence of an allegation of wrongdoing under the Act. Accordingly, although it is tempting to adopt the two-year limitation period such as that for tort claims, we support a one-year limitation for filing human rights complaints. The present discretion vested in the Council to extend the limitation period in appropriate circumstances should remain.
Recommendation: The limitation period under the Act be increased from six to 12 months, with a discretion to extend the 12 month limitation for filing a complaint in appropriate circumstances.
A complaint which is not summarily dismissed proceeds to investigation. Section 11(4) of the Act states that the chair of the Council shall investigate a complaint and endeavour to assist the parties to the complaint to achieve a settlement. Typically, investigations have be conducted by Industrial Relations Officers affiliated with the Employment Standards Branch offices through the Province. The officers carry a case load that includes employment as well as human rights complaints. The task of an investigator is to gather relevant facts, discover documents and records, interview witnesses, with a view to determining, at least initially, if a prima facie case of a breach under the Human Rights Act can be made out. We have recommended that the investigators have special training and experience in human rights cases.
In reviewing the Council’s annual report 1992/1993, we note that 32% of all complaints were disposed of by settlement. Of those claims which settled, 12% occurred prior to investigation, 66% occurred during investigation, and 22% occurred after referral to a hearing. Thus 78% of all complaints that settled occurred before investigation was concluded. We ask whether respondents’ due process rights are at risk where settlement is attempted before the investigation is concluded. Certain complaints may be capable of early resolution, particularly if the facts are relatively straightforward such as in the case where the manager of a store asked a mother who was breast feeding to leave. This case was resolved by a letter of apology. In other instances, the respondent may admit during investigation that the conduct complained of was discriminatory and may want an early settlement.
In more complex cases, there is a risk that if cases are referred to mediation or settlement without proper discovery of the facts, and without disclosure of those facts to the parties affected, a fair disposition of the complaint may be jeopardized. This is a particular concern as the evidence in support of human rights complaints is often circumstantial and requires the trier of fact to draw the necessary inferences from the whole of the evidence adduced. The nature of a human rights complaint, and the type of evidence which may or may not support it, is aptly described by the Canadian Human Rights Tribunal in Gauvreau and C.H.PC. v. National Bank of Canada at 17 C.H.R.R. D/25 as follows:
Discriminatory practices cases do not generally lead themselves to ’smoking gun’ solutions. People who commit discrimination, intentionally or unintentionally, generally do not leave their calling card. It is not fashionable, nor for that matter legal, to engage in illegal discrimination and therefore no one readily admits to it…. Frequently, these cases must be resolved by means of circumstantial evidence or on the issue of credibility. (at D/57, ).
If the complaint is to be founded on circumstantial evidence, it is incumbent upon the investigator to provide to the respondent full particulars of the alleged wrongful conduct. Such particulars must contain enough detail to provide the respondent with exact and sufficient information to enable him/her to assess fully the merits of the complaint and to take steps to obtain further facts which might establish a defence or which may lead to ad admission of liability. Short of an admission of liability or a specific request for mediation consented to by both parties, settlement should not be attempted without particulars being furnished. Respondents should be permitted to petition for further and better particulars from the complainant under appropriate circumstances. Once particulars have been furnished, informal mediation of a complaint by a member of the administrative arm of the agency would be appropriate.
After the investigation has concluded, and before the matter can be remitted to a hearing before an adjudicator, it is our view that the parties to a complaint, or their representatives if applicable, should be required to attend at a settlement conference. The reason why investigation ought to be completed before formal settlement discussions arise is that the investigative findings will help the parties discover the case for or against each of them, and will contribute to a full and fair discussion of the merits of the complainant’s case, or the respondent’s defence (as the case may be) and what resolution, if any, is appropriate in the circumstances. It should be noted that at this stage, the respondent is facing allegations not proven before a trier of fact and law. A respondent ought to know the case to be met and ought to be in a position to weigh its merits before facing settlement demands. We contemplate this to be a formal attempt at resolution, with mediation being the more informal process. Mediation takes place with consent or the parties; settlement is a prerequisite to the matter proceeding to hearing and is mandatory.
The Small Claim Act requires that before a case can be set down for a hearing before a Small Claims Judge, the parties or their representatives must attend at a settlement conference before another Small Claims Judge who, informally, will canvass the issues and the evidence, and may, at the conclusion of the conference, outline the likely disposition of the action should it proceed to trial. The Small Claims Judge encourages the parties to consider settlement of the claim based on the Judge’s assessment presented at the conference. The parties are free to accept or reject the Judge’s assessment, and free to decline to make an offer to settle. Should settlement be reached, the terms of the agreement are set out in a document signed by the settlement conference Judge and this is filed in the Small Claims Court. If settlement is not reached, the matter is remitted to the registry to be placed on the list for hearing at a future time. The settlement file is privileged from production, and neither party may refer to the settlement at the hearing of the action. The settlement Judge is not the Judge who is appointed to hear the case should it proceed to trial.
In attempting to resolve cases, the rights of the respondent as well as of the complainant must be protected and the full results of the investigations made available to both parties, along with any recommendations that the investigator may have as to the further handling of the complaint. In this way, each party can make an informed decision as to whether the case is one which can proceed to settlement.
Recommendation: It is our view that there should be no effort to conciliate before investigation is completed unless consented to by both parties or unless an admission of liability is volunteered by the respondent during investigation.
Settlement of a complaint should not be attempted unless there are sufficient particulars to indicate that a prima facie case of discrimination can be established on the evidence. Unless there is an admission of discrimination by the respondent during the course of investigation, a determination of probable discrimination cannot be made until a summary of the investigation report, with full particulars, is provided to the parties, and they are provided an opportunity to comment.
The results of an investigation should be provided only to members of the administrative or education branch of the agency and not to members of the adjudicative branch other than a member appointed to hear a settlement conference.
We recommend that the settlement process currently employed by the Provincial Court in administering the Small Claims Act be considered as a model for seeking resolution of human rights complaints prior to the hearing.
It should be noted that the disclosure of particulars is not meant to include the entire investigation file of the investigator, but rather, facts, statements, and documents and records obtained in the course of investigation which are relevant to make out a complaint or to establish a defence.
For a helpful and pertinent discussion on the value of settlement, and the privilege to be granted to settlement negotiations, see Anita Hall v. A-1 Collision and Auto Service and Mohammed Latif (1992), 17 C.H.R.R. D/199 at D201-204.