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 no 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. Such is the case in B.C.

Ironically, in what has now become a leading case on the definition of “family status”, the federal Human Rights Commission found the case without merit and dismissed it, denying the complainant even the right to proceed to hearing. The employee reviewed that decision and was able to set it aside. It was in this manner that new law was created. ¹