Human Rights: Parties to the Complaint
The status of the body known as the “Human Rights Commission” can be confusing. In all jurisdictions, apart from those that have implemented the direct user access system, the case starts by the complainant contacting the human rights commission, which investigates the allegation and initiates the case, often with the individual also as a party.
The jurisdictions with the “direct user access” system, by which the complaint process is started by the individual complainant, without the investigation of a human rights commission, are Ontario, B.C. and Nunavut.
In Ontario, the human rights commission usually is not a party to the case. It acts as an advisory body to the public and in cases of wide scale public interest or one involving an important legal issue, may seek to add itself as a party to the case. Typically the complainant is shown as the only party initiating the case. The applicant is a distinct and separate party at the hearing before the Tribunal. He or she has the right to participate and may take positions that are different from those expressed by the Commission, should it decide to seek an order to add itself to the case. 1
Only Nunavut does not have a body known as a human rights commission.
The tribunal which hears the case is referred to as a human rights panel, board, tribunal or board of inquiry.
In Alberta, the complainant is a party, as also is the Director of the Human Rights Commission in every case. Saskatchewan follows the same process, as does Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland & Labrador.
Quebec’s Charter of Rights and Freedoms allows the Commission to have carriage of the case. Should it decide not to pursue the claim, the individual may continue the case on his or her initiative.
The statute of the Yukon is a hybrid, incorporating elements of both systems. The user files the complaint and the Human Rights Commission then investigates the merits of the action. The Commission may advocate the position of either adverse party at the hearing before the panel, which is a novel and sensible approach.
The law of the North West Territories permits the complainant to commence the complaint or the Commission, in which latter case it is a party. The Commission may also advise the panel in which event it is also a party.
Group Action
The legislations of B.C., Canada, North West Territories and Nunavut allow for a group action to be commenced. This is a very valuable tool which dramatically adds to the impact of the claim and negotiating clout. It is odd that other jurisdictions have not allowed for this process, as quite often a systemic rule or practice implemented by an employer may have consequences for many people.
The potential power in the use of this process is reflected in a recent B.C. decision in which fifty-five complainants each recovered $10,000 for compensatory damages for injured dignity and self-respect. The case was based on unfair treatment due to race. In addition a lost income claim was awarded of up to 3 months at $1,000 a month to each person. 2
Power to Proceed
In systems which do not allow for a direct user access process, the Commission retains the power to determine if a particular case should proceed to hearing. The specific legislative provisions vary, but the substance is similar. Generally speaking, if the Commission feels that the case is without merit, or the complainant has remedies in other forums such as a union grievance, the Commission can order the case to be dismissed and no hearing will be held.
Some statutes state that if the Commission feels a reasonable offer from the employer is presented, and the complainant will not accept it, the Commission has the power to refuse to submit the case to hearing and dismiss the matter. This is the law in Alberta, Saskatchewan, Manitoba, Yukon and P.E.I.
Quebec’s Charter allows for the individual to continue the case where the Commission elects not to proceed. The law of N.W.T. allows for the employee to appeal the decision of the Commission to dismiss the case, as does that of New Brunswick.
Although the right of the review of such a decision of the Commission to dismiss the case is not specifically set out in other statutes, there can be doubt that this is a statutory decision entitling the employee to seek a review of such decision in a higher court.
Effectively, this means that the Commission is the gatekeeper, controlling the process by which cases proceed to hearing. The direct user access systems, as noted below, allow for pre-hearing motions by which the employer may argue, in similar terms, that the case is without merit and should be dismissed without a full hearing.
Ironically, in what has now become a leading case on the accommodation required to be given on account of “family status”, the federal Human Rights Commission found the case without merit and dismissed it before a hearing was held. The employee reviewed that decision and was able to set it aside. It was in this manner that new law was created.
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