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QUEENS LAW JOURNAL Volume #26
Promises, Promises: Notes on Diversity and Access to Justice
*Faculty of Law, University of Windsor..An earlier, much shorter draft of this paper was presented at the Canadian Dept. of Justice Symposium, Expanding Horizons: Rethinking Access to Justice in Canada, held in Ottawa on March 31, 2000. The author wishes to thank Michael Lynk for his comments on an earlier draft.
Brian Etherington*
The author discusses important developments in the recognition of diversity interests within Canadian human rights regimes. He begins by tracing the significant growth in the substantive right to equality of members of diversity groups in the last two decades. Growth has occurred on two main fronts. First, there has been meaningful expansion in the prohibited grounds of discrimination under Canadian human rights legislation. Second, there has been a major transformation in the definition of fundamental concepts of equality and discrimination. We have moved away from limited notions of formal equality and an intent-based approach to discrimination, and toward a much broader concept of substantive equality and an effects-based approach to discrimination.
While these significant gains in the substantive rights of Canadians have greatly expanded the basis for claims of violation of equality rights, there have not been corresponding advances in the provision of public procedures and delivery mechanisms to ensure access to justice for members of diversity groups. The author identifies the deficiencies in the current human rights enforcement process, and notes a trend toward the privatization of dispute resolution mechanisms in the absence of adequate government resources. He raises serious concerns about the appropriateness of reliance on private dispute resolution procedures, such as grievance arbitration, for the protection and enforcement of public statutory rights. These efficiency-driven developments have imperilled access to justice for the protection of equality rights under current human rights regimes. The author urges governments to consider recent suggestions for meaningful reforms, in order to avoid increasing dissonance between the promise and the experience of our justice system in the area of equality.
Introduction
I. The Promise: Substantive Developments in the Recognition of Diversity and the Meaning of Equality and Justice
A. Increasing Recognition of Diversity
B. Evolution in Conceptions of Equality and Discrimination
II. The Experience: Problems in Delivery of Access to Justice for Members of Diversity Groups
Conclusion
Introduction
In this brief paper, I will present my perception of recent developments in the recognition of diversity interests and the meaning of justice and equality for members of diversity groups within Canadian human rights regimes. I will also identify some of the most serious problems inhibiting access to justice for members of diversity groups today. My thesis is quite straightforward. We have witnessed significant advances on the substantive side of the ledger, both in the recognition of diversity interests and in the meaning of justice and equality for members of diversity groups. However, those advances on the substantive side have not been met with corresponding advances in the delivery mechanisms and procedures necessary to achieve access to justice. In fact, consistent with the trend in Canada in the 1990s to downsize government and privatize the delivery of government services in order to provide tax cuts, there has been a hollowing out of government mechanisms and a significant attempt to privatize the resolution of diversity issues under human rights legislation in many jurisdictions across the country. The removal or withdrawal of governments from processes to resolve disputes concerning diversity cannot be a good thing for the recognition and protection of diversity interests. Diversity groups are generally minority groups, both in terms of numbers and resources. The imbalance of power faced by minority racial and religious groups in a market economy, and the failure of our courts to adapt the common law to protect minority interests against unequal treatment, led to the development of human rights legislation in the 1950s and 1960s. This legislation gave governments a major role in protecting members of minority groups from discrimination in their business lives. That large governmental role was essential to overcome the imbalance of power which determined outcomes in the private sphere. The recent return to a reduced role for governments in the protection of diversity interests has resulted in an increasing gap between the promise and the experience of access to justice for members of diversity groups.
I. The Promise: Substantive Developments in the Recognition of Diversity and in the Meaning of Equality and Justice
A. Increasing Recognition of Diversity
In the past twenty to twenty-five years there has been tremendous growth in the recognition of diversity interests deserving of protection from discrimination by our justice system. These developments have been the result of interaction between four agents of change: legislative amendment, judicial interpretation, the Canadian Charter of Rights and Freedoms and the diversity groups themselves. The growth has come both in the area of recognition of prohibited grounds of discrimination and in the definitions of discrimination and equality.
2.Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
Prohibited grounds of discrimination are nothing less than those attributes of diversity which we have determined should not be allowed to be the basis of differential treatment between individuals which imposes burdens or denies benefits. By recognizing a particular personal characteristic as a prohibited ground of discrimination for human rights or Charter purposes, we recognize that it would be an affront to our deeply held values concerning the right of all members of Canadian society to equality and human dignity to allow for the imposition of disadvantage on the basis of the proscribed ground.
There has been a significant expansion of prohibited grounds of discrimination since the inception of human rights legislation in Canada in the 1940s and 1950s. The earliest statutes generally included only race, colour and religion. The 1960s saw the addition of age and ethnicity, or place of origin, in most jurisdictions. This was followed by the addition of sex in the late 1960s and early 1970s. Marital status was added in most jurisdictions in the 1970s, followed by family status in the late 1970s and early 1980s. Disability or handicap was not recognized as a prohibited ground of discrimination in many jurisdictions until the early 1980s. Quebec has added social condition, and several jurisdictions have added receipt of social assistance as a prohibited ground for limited purposes, such as non-discrimination in access to accommodation.
.It should perhaps be noted that handicap or disability has been the most rapidly growing ground of discrimination in terms of the number of complaints filed with human rights commissions in Canada. In 1999, 34% of all new complaints received by the Canadian Human Rights Commission were based on disability. The next categories were sex with 18%, race/colour with 15% and national or ethnic origin with 14%. Canadian Human Rights Commission, Annual Report for 1999, (2000).
.Although the Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977 c. C-12, is the only Canadian human rights statute which currently prohibits discrimination on the ground of social condition, a recent report recommends that social condition be included as a prohibited ground of discrimination in the Canadian Human Rights Act. Canada, Justice Department, Promoting Equality: A New Vision Report of the Canadian Human Rights Act Review Panel (Ottawa: Canadian Human Rights Review Panel, 2000) (Chair: G.V. La Forest) at 113 [hereinafter La Forest Report on the CHRA]. The Report also recommends the addition of gender identity to the list of prohibited grounds (ibid. at 105).
The addition of sexual orientation as a prohibited ground is somewhat more complicated. It was first included by legislation in Quebec in 1977. Other jurisdictions did not follow suit until Ontario did so in 1986. This was followed by the legislative addition of sexual orientation in other jurisdictions in the late 1980s and early 1990s, including the amendment of the federal human rights code to add it in 1996 after many years of failed attempts.
5.During the late 1980s and early 1990s there were also several court challenges which sought to have sexual orientation added to human rights statutes as a prohibited ground on the basis that its omission was a violation of the equality rights found in s. 15 of the Charter. In 1992, in Haig v. Canada (1992), 9 O.R. (3d) 495 (C.A.) [hereinafter Haig], the Ontario Court of Appeal accepted these arguments and held that s. 15 required that the Canadian Human Rights Act, infra note 14, be interpreted and applied as if it included sexual orientation as a prohibited ground of discrimination. The federal government did not seek leave to appeal the decision but instead made several attempts to amend the legislation to comply with the Haig ruling, culminating in the 1996 amendment.
Finally in 1998, in Vriend v. Alberta, judicial pronouncement under section 15 of the Charter added sexual orientation to the Alberta human rights statute and to the statutes of the other provinces that had not yet included it. In Vriend and the earlier decision of Egan v. Canada, the Supreme Court of Canada held that sexual orientation was an attribute of diversity that should be recognized as a ground of discrimination analogous to those enumerated in section 15. The Court provided a definition of "analogous ground" which is likely to be instructive and influential for future development of prohibited grounds under the Charter and under anti-discrimination legislation. The Court emphasized the notion of a "deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs", and it urged consideration of whether persons who share the particular attribute of diversity "form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage."
.[1998] 1 S.C.R. 493 [hereinafter Vriend].
.[1995] 2 S.C.R. 513 [hereinafter Egan].
8.In addition, in M. v. H., [1999] 2 S.C.R. 3, the Court confirmed that differential treatment of same-sex couples in the conferral of benefits or protection under the law would constitute discrimination on the basis of sexual orientation and would have to be justified as a reasonable limit if it were to survive a Charter challenge. This has led to major legislative initiatives in most jurisdictions across the country to extend benefits and obligations to same sex couples equal to those provided to and required of heterosexual couples.
.Egan, supra note 7 at 528.
.Ibid. at 602.
B. Evolution in Conceptions of Equality and Discrimination
Even more important to the expansion of the legal recognition of diversity interests was the judicial and legislative evolution of our basic conceptions of equality and discrimination in the early to mid-1980s. The traditional meaning of equality as purely formal, in the sense of identical treatment for all regardless of their personal attributes, was rejected in favour of a new conception of substantive equality. The new version required equality of opportunity to demonstrate one’s potential without being impeded by barriers which are based on irrelevant diversity attributes or which have an unnecessary adverse impact on members of groups identified by a prohibited ground of discrimination. It was also recognized that access to justice in the form of equal treatment could often require the recognition of attributes of diversity and the accommodation of differences to enable full participation free of unnecessary barriers.
.For an influential articulation of this conception of substantive equality see Canada, Report of the Royal Commission on Equality in Employment (Ottawa: Canadian Government Publishing Centre, 1984) at 2-3. This report is commonly cited as the basis for the first federal Employment Equity Act, infra note 19, passed in 1985.
The modern conception of equality required a new definition of discrimination, and the Supreme Court of Canada and several of our legislatures obliged. In 1985 in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., the Court recognized for the first time that the concept of adverse effect discrimination was sufficient to satisfy a requirement for discrimination under human rights legislation. Adverse effect discrimination arises where an employer for business reasons adopts a rule or standard which appears neutral on its face and which applies uniformly to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or a group of employees in that, because of some special characteristic of the employee or group, it imposes penalties, obligations or restrictions not imposed on other members of the workforce. Thus, while intentional discrimination continued to be prohibited, the Court began in the mid 1980s to shift away from a fault or intent-based approach to the application and enforcement of human rights legislation and toward a results or effects-based approach.
.[1985] 2 S.C.R. 536.
A similar approach was reflected in the Court’s watershed decision in Action Travail des Femmes v. Canadian National Railway Company. In that decision, the Court defined systemic discrimination as discrimination that results from the simple operation of everyday established procedures of recruitment, hiring and promotion, none of which are designed to promote discrimination. However, systemic discriminatory procedures of that sort are reinforced by the very exclusion of members of disadvantaged groups which results from the procedures themselves, because such exclusion supports the belief or stereotype that members of the group are not capable of doing the work. Further, the Court upheld the granting of systemic remedial orders in the form of employment equity initiatives to obtain results in recruitment that would break the cycle of systemic discrimination. In the 1980s, some jurisdictions also amended their human rights codes to expressly incorporate the concepts of adverse effect and systemic discrimination.
.[1987] 1 S.C.R. 1114 [hereinafter Action Travail des Femmes].
.See e.g. the Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 10 [hereinafter CHRA].
A further significant expansion of legal protection of diversity interests in the workplace occurred in the 1980s with the judicial and legislative recognition that harassment on a prohibited ground of discrimination constituted discrimination for the purposes of human rights legislation. Many jurisdictions, including Ontario, amended their human rights legislation to remove all doubt, but for those jurisdictions which failed to do so, the Supreme Court of Canada settled the question in favour of protection against harassment in 1989 in Janzen v. Platy Enterprises Ltd. In addition, the theme of transition from a focus on employer fault or intent to a focus on the effects on employees has been maintained in numerous Supreme Court decisions on human rights issues in the last fifteen years. These have included decisions on employer liability for harassment by co-workers and on the relationship between a bona fide occupational requirement (BFOR) and an employer’s duty to accommodate. The recent decision in Meiorin will have a significant expansionary effect on the substantive grounds for individual employees to challenge employer rules or practices which have an adverse effect as not being BFORs because the employer did not go to sufficient lengths to accommodate the individual employee’s diversity interests in the original construction of the business rule or practice.
.[1989] 1 S.C.R. 1252 [hereinafter Janzen].
.Robichaud v. Canada (Treasury Board) [1987], 2 S.C.R. 84 and Janzen, ibid.
.British Columbia (Public Service Emp. Relations Comm.) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 [hereinafter Meiorin].
The common theme of these developments is a greater recognition of attributes of diversity and the importance of accommodating those diversity interests if we are to further the values of substantive equality and respect for human dignity that are central to the mission of the Charter and human rights legislation in Canada. At the same time, however, all of these developments significantly increase the potential for individual claimants to assert that their right to substantive equality has been violated by employer practices or by the conduct of unions or co-workers.
II. The Experience: Problems in Delivery of Access to Justice For Members of Diversity Groups
To what extent have we been able to expand or adapt procedures and mechanisms for protection of diversity interests to ensure that the increases in substantive rights and responsibilities are more than hollow promises? The short answer is that we have not been very successful in developing delivery mechanisms to meet the promise of recent substantive growth in the right to equality. How have we failed? Let me count the ways.
First, our experiments with government mechanisms to implement proactive employment equity measures on a jurisdiction-wide basis have been largely unsuccessful to this point. In a few rare cases, human rights adjudicators have been willing to order remedial measures which include an employment equity plan to correct systemic discrimination. However, many believe that the most effective way to provide substantive equality for diversity interests in the workplace is to adopt government mechanisms requiring employers and unions to be proactive in identifying and removing barriers to equality of opportunity. This belief led to the adoption of employment equity legislation in the federal jurisdiction in 1985 and 1996 and in Ontario from 1993 to 1995. The first federal act was generally viewed as little more than a flawed reporting mechanism to track the progress (or lack thereof) of members of the four designated groups (women, aboriginal persons, visible minorities and persons with disabilities) in a small portion of the federal workforce. However, the 1995 federal EEA and the now-repealed Ontario legislation are generally viewed as more serious attempts to implement substantive equality on a proactive system-wide basis. Common to both regimes are the following: the objective of removing systemic discrimination from private and public workplaces insofar as it affects the four diversity groups listed above; the obligation on employers to do workplace surveys to identify levels of representation of those groups in all occupational categories and to identify workplace barriers to equality of opportunity; the requirement that employers prepare employment equity plans to identify short-term and long-term goals for achieving representation of members of designated groups in their workforce consistent with the representation of those groups in the labour force and in the community, and to identify the positive measures and policies they will implement to meet those goals; provision for administration and enforcement by a government agency with the power to do compliance audits and issue compliance orders; and access to an adjudicative tribunal to challenge or enforce compliance orders.
.See e.g. Action Travail des Femmes, supra note 13 and National Capital Alliance on Race Relations v. Canada (Health & Welfare) (1997), 28 C.H.R.R. D/179 (C. Human Rights Tribunal).
.Employment Equity Act, R.S.C. 1985 (2nd Supp.), c. 23, as rep. by Employment Equity Act, S.C. 1995, c. 44, s. 54.
.Employment Equity Act, S.C. 1995, c. 44 [hereinafter EEA].
.Employment Equity Act, S.O. 1993, c. 35, as rep. by Job Quotas Repeal Act, 1995, S.O. 1995, c. 4.
.Note that while the Ontario legislation created an Employment Equity Commission and an Employment Equity Tribunal, the latest federal act assigns the bulk of the administrative and enforcement obligations to an already overburdened Canadian Human Rights Commission but does provide for a review of Commission compliance orders by an Employment Equity Review Tribunal under the EEA, supra note 20, s. 27.
While it is too early to tell if the new federal EEA has enough teeth to make it more effective than the 1985 legislation, these initiatives have obviously had a very limited impact on ensuring substantive equality to this point. The short-lived nature of the Ontario legislation means that today pro-active employment equity schemes are only in place for less than one million workers in the federal sector (less than 8% of the Canadian workforce). Serious concerns have also been raised about limitations built into the federal Act. That statute contains provisions which should generally prevent seniority schemes under collective agreements from being held to be barriers to equal opportunity, and it prohibits the issuance of a compliance order that would have the effect of imposing a quota requiring an employer to hire or promote a fixed number of persons during a given period. More flexible numerical goals can be specified. The 1995 EEA also amended the Canadian Human Rights Act to restrict the authority of the Canadian Human Rights Tribunal to order special remedial measures of the type employed in Action Travail des Femmes to deal with systemic discrimination problems evidenced by under-representation of designated groups. Finally, this model for protection and promotion of diversity interests in the workplace is very demanding in terms of resources, and some have expressed concern that as governments seek to reduce budgetary allocations for government programs, employment equity initiatives will be funded inadequately and at the expense of other anti-discrimination programs and mechanisms.
.EEA, ibid., s. 33.
24.La Forest Report on the CHRA, supra note 4 at 20. The Report also notes that the 1995 amendments resulting from the new EEA precluded complaints under the CHRA based upon information obtained under the EEA and generally precluded complaints based solely on statistical evidence of under-representation of members of designated groups. These limitations appear to be based on a desire to give the EEA preeminence as the mechanism to deal with systemic discrimination concerns.
.See for example, D.J. Mullan, Tribunals and Courts The Contemporary Terrain: Lessons from Human Rights Regimes(1999) 24 Queens L.J. 643 at 646, and B. Baines, Occupational Sex Segregation and Employment Equity: Lessons From Canada 8 C.L.E.L.J. [forthcoming in 2000].
The failure of governments and their agencies to adopt proactive or remedial employment equity initiatives on a more widespread basis leads us back to a consideration of how well we are doing at meeting the needs of members of diversity groups through the traditional complaint-driven mechanisms. Anyone familiar with this area will know that the incapacity of human rights commissions to deal effectively with complaints in a timely manner has been the subject of considerable criticism for many years now. Huge backlogs of complaints and lengthy delays of three to seven years before a complaint reaches an adjudicative tribunal have been the subject of academic and judicial comment and government reports since the late 1980s. This has also led to criticism from Auditors-General on occasion, particularly in the federal sphere, to the effect that human rights commissions are trying to do too many things and are taking too long to do them due to inefficient management. Over the years, spokespersons for human rights commissions have pointed out that the substantive developments referred to above have led to increases in their jurisdiction and workload, and they have argued that governments have not provided adequate resources to deal with that workload effectively. However, pleas for real increases in funding for human rights commissions, or for reforms which would enable complainants to have much more control over the processing of their complaints, have for the most part fallen on deaf ears.
.On the extent of these problems and the difficulties they present for access to justice for members of diversity groups protected by human rights legislation, see Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Queens Printer, 1992) (Chair: M. Cornish) [hereinafter Cornish Report] and the LaForest Report on the CHRA, supra note 4.
.See e.g. the discussion by Mullan, supra note 25 at 646.
.See e.g. the call by Mary Cornish for a more client driven process, in the Cornish Report, supra note 26 at 108. More recently, see the La Forest Report on the CHRA, supra note 4 at 54, which proposes that all claimants should have the right to file a claim directly with an adjudicative tribunal and to expect a decision by that tribunal on the claim. Note that the latter report concludes with an express plea for government commitment of sufficient resources to enable the remodeled Commission and Tribunal to be effective in carrying out their mandates to eliminate and provide remedies for discrimination. See recommendation 164 (ibid. at 149). It is too early to tell if the federal government will act on the sweeping recommendations for reform in the La Forest Report on the CHRA.
These problems have led to several related developments in the last five to ten years that have seen a significant transfer of human rights claims to other forums for the resolution of workplace disputes. In the first place, employees have voluntarily sought to make their claims in courts or other adjudicative forums, such as grievance arbitration or the Ontario Labour Relations Board (OLRB), to avoid the delays they find in the human rights commission process. In the earliest attempts by unorganized employees to go to court for relief against discrimination through civil actions, the bar to recognition of a tort of discrimination raised in Board of Governors of Seneca College v. Bhadauria was used to preclude such actions. However, beginning in the mid-1990s courts began to allow actions based on conduct addressed by human rights legislation to continue, as long as the claim was based on a traditional cause of action previously recognized at common law and did not seek damages based on a violation of the human rights code.
.[1981] 2 S.C.R. 181.
.See the discussion in A.L. Mactavish & A.J.F. Lenz, Civil Actions for Conduct Addressed by Human Rights Legislation Some Recent Substantive and Procedural Developments (1996) 4 C.L.E.L.J. 375. In some cases, the courts actually commented on the ineffectiveness of the human rights process as a reason for letting the court action continue.
Organized employees working under collective agreements were generally precluded from maintaining actions in court, but many began to seek the support of their unions to advance their claims in the grievance arbitration process. Arbitrators had gradually begun to accept jurisdiction to hear grievances alleging a violation of the human rights statute if there was a sufficient nexus with a collective agreement provision to give them jurisdiction. In 1993, this acquisition of arbitral jurisdiction over human rights issues was given legislative recognition in the Ontario Labour Relations Act. Several other jurisdictions in Canada also gave grievance arbitrators the jurisdiction to interpret and apply human rights legislation in their decision-making process. Some employees also sought to escape the human rights commission logjam by bringing their complaints instead to the OLRB under its occupational health and safety jurisdiction, claiming that discriminatory conduct by the employer (such as racial harassment or sexual harassment) had made the workplace unsafe due to the mental stress it put on them. In some cases, an employee might seek relief in several forums at the same time, to see which one would deal with her claim the most quickly.
.See Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 [hereinafter Weber].
32.See Labour Relations Act, 1995, S.O. 1995, c. 1, sch. A, s. 48 (12)(j).
.See e.g. the case history discussed in 3M Canada Inc. v. C.A.W., Local 27 (Chapman) (1997), 64 L.A.C. (4th) 213 [hereinafter 3M Canada].
The tightening of government budgets and the push to make the delivery of government services more efficient has led to a third significant development. Human rights commissions in several jurisdictions, most notably Ontario, have adopted a policy of almost complete refusal to take jurisdiction over human rights complaints by employees who work in an organized workplace and are subject to a collective agreement. Responding to criticisms of inefficiency, the Ontario Human Rights Commission (OHRC) in 1993 adopted a strict and rigorous policy of deferral to arbitration where the complainant works under a collective agreement. The OHRC claims the authority to adopt this policy under the discretion given to it by section 34 of the Human Rights Code to refuse to deal with a complaint which could or should be more appropriately dealt with under another statute. The Commission’s guidelines refer to the important public interest in stable and harmonious labour relations, and they express concern that the human rights process should not become a tool to replace the collective bargaining process. The guidelines do suggest that the Commission should consider each case on its own merits, and they note that one factor to take into account is whether there may also be complaints against the union. Nevertheless, recently published statistics and anecdotal evidence indicate that a refusal to process complaints submitted by organized employees has become the normal course of operations. Cases where the Commission has declined to process a complaint have tripled since the introduction of the policy in 1993.
.Human Rights Code, R.S.O. 1990, c. H.19, s. 34 also gives the Commission the discretion to decline to process complaints that are trivial, frivolous or made in bad faith, complaints that are outside of its jurisdiction and complaints that are untimely.
.Ontario Human Rights Commission, Guidelines on the Application of Section 34 of the Ontario Human Rights Code, (Toronto: OHRC, 1993) [hereinafter OHRC Guidelines].
.J. Sack, et al., eds., Ontario Complaint Guidelines Cause Rejection Rate to Triple (Jan/Feb. 1999) 15 Lancasters Hum. Rts. & Charter L.R. at 3.
Union-side counsel report that the OHRC refuses to process cases when it learns that the complainant works under a collective agreement, even in most cases where a concern is expressed that the union will not take a grievance to arbitration, and that a claim may lie against the union as well as the employer. The justification most often given for the Commission’s refusal to proceed in cases where the union may not press an anti-discrimination grievance, or may even be a party to the discrimination, is that the employee can seek redress before the Ontario Labour Relations Board (OLRB) through a duty of fair representation complaint against the union. Those familiar with the jurisprudence on duty of fair representation complaints before labour boards will know that the prospects of success in these claims are quite low. Nevertheless, this OHRC policy was recently upheld by the Ontario Divisional Court on judicial review of a Commission decision to refuse to process a complaint against both a union and an employer alleging discrimination in employment on the basis of handicap.
.Conversations by the author with union side labour lawyers in Toronto. Some counsel have suggested that employees now frequently bring a complaint against the union as well as the employer in the hope that this will force the Commission to process the complaint.
.Average rates of success in B.C. and Ontario in recent years fall between 1% and 5%. See T.R. Knight, Recent Developments in the Duty of Fair Representation: Curtailing Abuse in British Columbia [1996-97] Lab. Arb. Y.B. 151 at 152-158. There is an added problem with attempts to rely on OLRB processes to address discrimination and diversity issues under its duty of fair representation jurisdiction or under occupational health and safety legislation. Some labour lawyers have expressed the view that in this world of declining resources to fund its operations, the OLRB feels that it cannot afford to have downloaded upon it the OHRCs mandate to deal with employment discrimination issues. The OLRB has itself made several rulings in recent cases that while it may have jurisdiction, it should defer to the greater expertise of the OHRC on discrimination issues. See e.g. Meridien Magnesium Products Ltd., [1996] O.L.R.B. Rep. 964 in the occupational health context. See 3M Canada, supra note 33, for an example of the kinds of circles that an individual employee seeking redress on a discrimination in employment claim can face.
.Jette Steward v. Ontario (Human Rights Commission), [1999] O.J. No. 4768 (Div. Ct.), online: QL (OJ). The court gave very brief reasons which failed to indicate that the grievor had filed discrimination grievances against her employer which the union had refused to take to arbitration, that she had filed complaints with the OHRC against both union and employer and that she had filed a DFR complaint against the union at the OLRB. The court simply noted that the OHRCs power to bar certain complaints from proceeding further, regardless of their merit, reflects the legislators overriding commitment to considerations of administrative efficiency, and held that the Commissions decision could not be found to be patently unreasonable (ibid. at para. 3).
The OHRC has asserted that its 1993 policy has been a great success, enabling it to get to the point where it can now process in one year as many cases as it has opened in that year, or slightly more. It should be noted that the Commission has also recently embarked on pilot projects using private mediation services to attempt to help it clear its backlog. In 1999, it claimed that such efficiency measures allowed it to resolve approximately 60 per cent of its incoming cases within six months. But the question that has to be asked is what price has been paid in terms of access to justice in order to attain these efficiency gains.
.See J. Sack et al., supra note 35 at 3, citing the Commissions 1998 Annual Report. It should be noted, however, that the backlog was still large, with over 1200 cases that were at least two years old.
.It is also appropriate to question the extent to which the use of private mediators under contract to attempt to resolve complaints will protect access to justice for complainants or ensure adequate enforcement of statutory human rights policies. Some obvious questions might be asked. What are the levels of training and expertise in human rights and employer obligations possessed by the private mediators? What are the criteria of success stipulated in the contracts between the Commission and the private mediators; is the focus on clearance rates or on adequate protection and enforcement of human rights? What measures are undertaken to ensure that power imbalances between employers and employees do not compromise access to justice for employees in the mediation and settlement processes? There is a great need for independent and impartial study of the impact of mediation and other forms of ADR on access to justice for the protection of public statutory rights. For an early critique of the negative impact of some forms of ADR on access to justice for the disadvantaged, see L. Nader, The ADR Explosion The Implications of Rhetoric in Legal Reform (1989) 8 Windsor Y.B. Access Just. 269.
First, there is the very obvious concern that a three-fold increase in the number of complaints which the OHRC has declined to process must mean that some individual claimants are being denied access to any forum to protect their diversity interests from discriminatory treatment.
At the same time, however, far too little attention has been paid to the consequences which the increasing privatization and collectivization of processes for the administration and enforcement of individual statutory and Charter rights can have on access to justice for diversity groups. Human rights commissions are not alone in their new found respect for labour arbitration as the appropriate forum to protect the most fundamental rights of organized workers. In the 1995 decision in Weber, the Supreme Court of Canada held that grievance arbitrators should have exclusive original jurisdiction over common law and Charter claims of unionized workers, as long as the factual nature of the dispute could be said to arise expressly or inferentially from the collective agreement. In 1996, the Ontario Employment Standards Act was amended to make grievance arbitration the exclusive forum for complaints under that Act by employees who were covered by a collective agreement. Through such outright legislative transfers to private processes, through decisions like Weber and through the administrative practices of human rights commissions under statutory discretion provisions like section 34 of the Ontario Human Rights Code, we have embarked on a trend of transferring jurisdiction over claims based on statutory individual rights from public officials and tribunals to private organizations and procedures – that is, to unions and grievance arbitration.
.Supra note 31. For detailed discussion of Weber and its aftermath, see B. Adell, Jurisdictional Overlap Between Arbitration and Other Forums: An Update; D. Carter, Looking at Weber Five Years Later: Is It Time for a New Approach? and R. MacDowell, Labour Arbitration The New Labour Court? 8 C.L.E.L.J. [forthcoming in 2000].
.R.S.O. 1990, c. E. 14, s. 64.5, as am. by S.O. 1996, c. 23, s. 18. It should be noted that courts in most jurisdictions have refused to find that Weber, supra note 31, required arbitrators to take exclusive jurisdiction over human rights disputes where the collective agreement included anti-discrimination provisions. See e.g. Saskatchewan Human Rights Commission v. Cadillac Fairview Corp. (1999), 173 D.L.R. (4th) 609 (Sask. C.A.) (leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 492). Thus the problems I am describing concerning privatization of the human rights process in organized workplaces results from present administrative practice and policy and not from legal doctrine at this point.
This raises several questions. What is the impact on the protection and evolution of statutory public rights of assigning the adjudication of these rights to privately appointed arbitrators whose future employment depends on the satisfaction of the union and employer and not on the satisfaction of the individual or the government who, one assumes, are most concerned with the protection of such rights? What will be the long term effects of the assignment of responsibility for the protection of individual statutory rights to a process in which decisions on whether to support claims and seek enforcement will be affected by the collective concerns of the union? Unions and grievance arbitration are part of our collective bargaining regime, and their primary role is not to deal with issues of individual rights but to recognize collective interests without undue disruption of production. Although they have some capacity to deal with individual rights issues, we must always remember that this is not their primary mission or institutional bias. Giving jurisdiction over the protection of individual rights and diversity interests to private collective processes and institutions appears quite questionable in public policy terms, especially when one is considering the enforcement of constitutional and quasi-constitutional minority equality rights.
.Similar concerns might also be expressed about significant numbers of complaints that are being diverted to private mediation for resolution by mediators whose primary criterion of success may be their settlement rate and not the attainment of substantive equality or compliance with the principles and values of human rights legislation.
.It is beyond the scope of this paper to discuss the potential negative impact of these developments on the long term viability and acceptance of grievance arbitration as an institution well suited to the speedy, inexpensive and informal resolution of collective bargaining disputes. For further commentary on these issues, see the papers by Adell, Carter and MacDowell, supra note 42.
.Of course it must be recognized that collective and production interests are taken into account in resolving claims in human rights commission structures and the statutory provisions recognize their significance in the concepts of bona fide occupation requirements and the limitation of undue hardship on the duty of accommodation. But the issue addressed here is the impact of transferring jurisdiction over the role of giving meaning to these concepts to institutions and organizations that have a collective bargaining bias as opposed to a human rights bias. One example of the result of this bias could be the finding that arbitral damage awards for harassment in violation of the human rights code tend to be smaller than those awarded by human rights tribunals. See M. Cornish & S. Lopez, Changing the Workplace Culture Through Effective Remedies (1994) 3 C.L.E.L.J. 95.
.The notion that unions and employers could be placed in a position to barter the settlement of individual grievances concerning human rights or Charter claims in exchange for the protection or promotion of collective interests, and thereby foreclose access to any forum for consideration of those claims is very disturbing in terms of ensuring access to justice. With respect to the submission of jurisdiction over Charter rights to grievance arbitration, Arbour J.A. (as she then was) raised these concerns in the Ontario Court of Appeal ruling in Weber v. Ontario Hydro, (1992), 98 D.L.R. (4th) 32, but her reasons were ignored by the Supreme Court of Canada. See [1995] 2 S.C.R. 929.
It should be noted that most union officials are also not pleased with these developments. They recognize that the developments raise a concern for protection of individual rights. They are also disturbed by the downloading of the costs of enforcing human rights, Charter rights and other statutory employment rights from governments onto union budgets. Some union counsel have noted that the increased financial responsibilities placed on unions by this privatization process will result in higher union dues, which will make unionization and collective bargaining much less attractive to workers.
Inherent in any regime for the protection of human rights is a tenuous balance between the values of access to justice and substantive equality on the one hand and the values of the market on the other. The concern raised by the twin spectres of privatization and collectivization of processes for the enforcement of Charter and human rights is that the balance will gradually be skewed in favour of the values of the market. It was this tendency of private actors and private processes to favour market values over those of substantive equality and respect for human dignity that led to the call for significant intervention by public agencies to protect human rights in the post-war period. We need to be vigilant to ensure that the current ascendancy of the values of efficiency and less government do not undermine our ability to provide access to justice in the form of substantive equality of opportunity for members of diversity groups.
Conclusion
Recent legislative and judicial developments on the substance of our Charter and our human rights law have held out a promise of greater equality and protection for diversity interests than ever before. But the realization of that promise for many members of diversity groups is threatened by our failure on several fronts in recent years to develop appropriate delivery mechanisms for access to justice. These shortcomings include a failure to find acceptable and effective processes for the imposition of employment equity measures on a systemic basis for most Canadians, a failure to provide adequate resources for effective mechanisms to handle individual discrimination complaints under traditional human rights regimes, and a trend toward the privatization and collectivization of processes for resolving individual Charter and human rights complaints. All of these developments, with the possible exception of the first one, appear to be driven primarily, if not solely, by efficiency concerns. The struggle to overcome these shortcomings and to refocus our efforts on access to justice for the protection of diversity interests will be very difficult at a time when the values of the market and efficiency concerns are so prominent that Canadians, or at least Canadian governments, seem prepared to tolerate the underfunding of health and education delivery programs despite the attainment of budget surpluses and significant tax cuts.
.This comment is perhaps unfair to most Canadians, as public opinion polls at the time of the 2000 federal budget found that they widely favoured greater spending on health care and education as their top priorities, far ahead of tax cuts, which were sixth or seventh on the list.
The answer does not lie in recognizing a right, constitutional or otherwise, to sue in the regular courts for violation of equality rights. Nor does it lie in transferring the functions of government human rights commissions to unions or other private collective organizations. What is required is nothing less than a recommitment to the values of access to justice for the protection of diversity interests and a search for new resources and public mechanisms for delivery that will allow us to close the gap between promise and experience. But we must be careful, when considering alternative delivery mechanisms, to focus more on their effectiveness in protecting diversity interests than on their efficiency in clearing caseloads.
.Some critics have suggested this as a solution, at least on an interim basis until governments return to adequate funding of the public human rights regime. See Mullan, supra note 25 at 665. But this is obviously not a viable long term solution for access to justice for the majority of members of diversity groups because of the extremely high cost of civil litigation.
The recommendations of the La Forest Report on the CHRA may provide a starting point for reform. That report advocates rejection of the current framework, used in the federal jurisdiction and most others, which assigns a gatekeeper function to a human rights commission and gives it a broad discretion to refuse to process complaints where there may be another process available. It recommends the adoption of a new framework which would allow all claimants the right to bring their cases directly to the adjudicative tribunal themselves, with public legal assistance. The role of the Canadian Human Rights Commission would be to provide education, information and assistance for complainants, to promote equality, to initiate its own complaints and to support and join in some individual cases of broader or systemic significance.
.La Forest Report on the CHRA, supra note 4 at 53-58.
In its discussion of problems raised by multiple proceedings, the La Forest Report on the CHRA concludes that an individual or organization should always be able to file a human rights claim with the Canadian Human Rights Tribunal, so that organized workers and others would be in the same position with respect to protection of their equality rights. It would allow for deferral of a claim by the Tribunal to another process, but only where the Tribunal could be satisfied that the human rights claim would be dealt with and resolved by the other process, that the other process was available to the individual claimant, and that it had the capacity to decide the human rights issue properly and to provide an appropriate and adequate remedy. Otherwise the claim should proceed before the Tribunal without delay. The Commission, freed of its gatekeeping responsibilities, would be given a much broader and clearer mandate to promote equality by undertaking inquiries to expose systemic problems, by embarking on new initiatives in the creation of regulations, codes of conduct and policy statements, by taking on greater educational and promotional initiatives and by assisting and supporting individual claims which may have systemic significance.
.Ibid. at 87-88, recommendations 100 and 101. Note that the report also recognizes that the Tribunal would have authority to dismiss a claim that had been the subject of another competent dispute resolution process which had fully dealt with the human rights issues and had provided an adequate remedy on those issues.
The authors of the La Forest Report on the CHRA appear to give access to justice for the protection of equality rights a higher priority than efficiency concerns. It is quite telling that the lengthy report’s final one-page chapter contains "A Plea for Resources", which recommends that the government should provide the substantial funding that the much reformed Commission and Tribunal would need in order to carry out their new mandates effectively.
.Ibid. at 149.
It remains to be seen whether the federal government, and other governments in Canada, share a sufficient commitment to the values of access to justice for the protection of equality rights that they will begin to make good on the promises of substantive equality made by our judges and legislators in recent years. If they do not, the increasing dissonance between promise and experience will have negative consequences for perceptions of the justice system, particularly by members of diversity groups in Canadian society. We have promises to keep.