ARCHIVED - Canadian Human Rights Tribunal - Report

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Chairperson’s Message

As the new Tribunal Chairperson, it has been my privilege to sit at the helm of an organization that not only gives effect to fundamental Canadian ideals such as equal opportunity and accommodation of needs, but also enables complainants and respondents to access justice in a timely and cost-effective fashion, with procedural fairness for all.

Since my arrival in November 2009 my main preoccupation has been to facilitate access to justice for ordinary Canadians. With the support of the Tribunal’s members, I have sought to make hearings and decisions speedier, fairer and more efficient.

The most notable change in Tribunal operations this year has been a more intensive approach to case management. Since late in 2009, parties to a complaint have been actively encouraged to identify and acknowledge all non-contentious issues and to accept one another’s affidavits in lieu of expert testimony, saving both legal costs for the parties and hearing costs for Canadian taxpayers. Pre-hearing conferences wherein parties concede key facts and distil the handful of points that need to be determined by the Tribunal have shortened hearing times by more than 50 percent in some cases. Because this streamlining of hearings was introduced late in 2009 and because the Tribunal tracks its cases from the calendar year rather than the DPR reporting period of a fiscal year, the effect of these changes is not sharply apparent in the results reported in Section II. However, the effect of the new approach to case management will be evident in next year’s DPR.

In addition to the pursuit of more efficient hearings, the Tribunal continued to promote and refine its alternative dispute resolution program. In November, I began exploring the use of dispute resolution models emanating from, among others, the superior courts in Alberta, as well as from other jurisdictions’ labour and human rights regimes, to encourage parties to better understand the strengths and weaknesses of their positions (evaluative mediation), which has led to greater settlements. In the last two months of the 2009–2010 fiscal year, of the nine cases where I used evaluative mediation, seven cases were settled. I also offered innovative process mediation to assist parties to attempt to resolve issues of evidence and process in complex cases. Such efforts are being offered to focus parties on issues of disagreement in an effort to reduce the length and complexity of hearings. These new approaches to conflict resolution are also to expected pay significant dividends in the form of higher mediation success rates when the 2010 case data is compiled in December. As well, the backlog has been cleared. These new approaches to conflict resolution are also to expected pay significant dividends in the form of higher mediation success rates when the 2010 case data is compiled in December. As well, the backlog has been cleared.

Section I: Overview

Raison d’être

The Canadian Human Rights Tribunal is a quasi-judicial body that hears complaints of discrimination referred by the Canadian Human Rights Commission to determine whether the activities complained of violate the Canadian Human Rights Act (CHRA). The CHRA was passed in 1977 to protect individuals from discrimination and to promote equal opportunity in Canadian society. The CHRA makes it an offence for federally regulated employers or service providers to discriminate against any individual or group on 11 grounds:

• race;
• national or ethnic origin;
• colour;
• religion;
• age;
• sex (includes pay equity, pregnancy, childbirth and harassment, although harassment can apply to all grounds);
• marital status;
• family status;
• sexual orientation;
• disability (can be mental/physical and includes disfigurement and past, existing or perceived alcohol or drug dependence); or
• conviction for which a pardon has been granted.

The Tribunal also adjudicates cases brought under the Employment Equity Act and, pursuant to section 11 of the CHRA, rules on allegations of wage disparity between men and women doing work of equal value in the same establishment.

Responsibilities

In hearing complaints under the Canadian Human Rights Act (CHRA) and the Employment Equity Act, the Canadian Human Rights Tribunal considers matters concerning employment or the provision of goods, services, facilities or accommodation. The Tribunal’s jurisdiction covers matters that come within the legislative authority of the Parliament of Canada, including those concerning federal government departments and agencies, as well as banks, airlines and other federally regulated employers and providers of goods, services, facilities and accommodation. The Tribunal holds public hearings to inquire into complaints of discrimination. Based on evidence and the law (often conflicting and complex), it determines whether discrimination has occurred. If it has, the Tribunal formulates a remedy and orders the respondent to compensate the complainant. The Tribunal may also order the respondent to adopt new policies or organizational behaviours intended to prevent future discrimination.

The majority of actions found discriminatory by the Tribunal are not done with malicious intent. Many conflicts arise from long-standing practices, legitimate concerns by employers, or conflicting interpretations of statutes and precedents. The role of the Tribunal is to understand the position taken by each of the parties and to establish fair and appropriate “rules” to resolve the dispute. The Tribunal may inquire only into complaints referred to it by the Canadian Human Rights Commission, usually after a full investigation by the Commission. The Commission resolves most cases without the Tribunal’s intervention. Cases referred to the Tribunal generally involve complex legal issues, new human rights issues, unexplored areas of discrimination or multi-faceted evidentiary complaints that must be heard under oath, especially in cases with conflicting evidence that involve issues of credibility.

The Tribunal is not an advocate for the CHRA; that is the role of the Commission. The Tribunal has a statutory mandate to apply the Act based solely on the evidence presented and on current case law. If there is no evidence to support an allegation, then the Tribunal must dismiss the complaint.

The Tribunal reports to Parliament through the Minister of Justice.

Strategic Outcome and Program Activity Architecture

In light of its narrow mandate, the Tribunal aims to achieve a single strategic outcome, which it pursues by means of two program activities, one operational and one management.

[D]

Summary of Performance

The following tables display the financial and human resources managed by the Tribunal in 2009–2010.

2009–2010 Financial Resources ($ millions)

Planned Spending	Total Authorities	Actual Spending
4.4	4.9	4.3

2009–2010 Human Resources (FTEs)

Planned	Actual	Difference
26	26	0

Strategic Outcome: Individuals have equal access, as determined by the Canadian Human Rights Act and the Employment Equity Act, to fair and equitable adjudication of human rights and employment equity cases that are brought before the Canadian Human Rights Tribunal.

Performance Indicator	Target	2009–2010 Performance
Tribunal decisions/rulings	Rendering decisions within four months of the close of the hearing in 80% of cases	Not met. The Tribunal was unsuccessful in delivering its written decisions within the sought-after four-month timeline from the close of hearing. Unlike hearings before the courts, Tribunal hearings often involve parties who cannot afford professional legal representation. This means they represent themselves in dealing with complex facts, evidence and law. This tends to make the hearing, as well as the post-hearing analysis stage, last much longer than is typically the case for administrative tribunals whose parties are represented by counsel.

($ millions)

Program Activity	2008–2009 Actual Spending	2009–2010*				Alignment to Government of Canada Outcome
		Main Estimates	Planned Spending	Total Authorities	Actual Spending
Hearing of complaints before the Tribunal	2.1	2.5	2.5	2.7	2.4	Social Affairs A diverse society that promotes linguistic duality and social inclusion.
Internal Services	1.8	1.9	1.9	2.2	1.9
Total	3.9	4.4	4.4	4.9	4.3

* Commencing in the 2009–2010 Estimates cycle, the resources for Internal Services are displayed separately, rather than being subsumed under the Tribunal’s other program activity, as was done in previous Main Estimates. This has affected the comparability of spending and FTE information by program activity between fiscal years.

Contribution of Priorities to Strategic Outcome

The Tribunal has a single strategic outcome: Individuals have equal access, as determined by the Canadian Human Rights Act and the Employment Equity Act,to fair and equitable adjudication of human rights and employment equity cases that are brought before the Canadian Human Rights Tribunal.

Operational Priority	Type	Status	Link to Strategic Outcome(s)
Continuous program improvement	Ongoing	Partially met The Tribunal’s computer-assisted case management system (toolkit) adopted in 2005 has enabled the Tribunal to better manage its workload and expedite its complaint inquiry process. Given the ever-changing nature of information technology (IT), however, the Tribunal this year began investigating the need to upgrade its toolkit. It conducted a business process reengineering study that recommended replacing the current toolkit with a new system. That system would support enhanced collaboration among Tribunal members and Registry staff, and allow more efficient monitoring and reporting of progress on hearings and case dispositions, enabling the Tribunal to make better use of its available technology resources. The Tribunal also developed and published a new set of guidelines for parties to a complaint, which sets out strict and detailed timelines for every phase of the inquiry and hearing process.	This priority makes the continued fair and equitable adjudication of human rights complaints a reality in Canada by ensuring that Tribunal decisions meet generally accepted standards of timeliness and quality.

 

Management Priority	Type	Status	Link to Strategic Outcome(s)
Improved corporate management	Ongoing	Partially met This year the Tribunal: completed and implemented a learning guideline initiated a process to develop a Tribunal-specific values and ethics statement; began reviewing the Tribunal’s human resources policy suite; and revised and approved its Integrated Business and Human Resources Plan. The Tribunal strengthened its compliance with the government’s Framework for Managing Information by implementing the government’s Records, Documents and Information Management System for management of its corporate records. It also completed and approved an Information Management Plan and made progress on an Information Management Strategy. The Tribunal continued to progress toward greater compliance with the government’s Management of IT Security Standard, implementing an IT security policy and a business continuity plan.	The Tribunal’s smooth functioning, especially in an era of mass retirements of baby boomers, demands that the Registry adopt state-of-the-art human resources management practices, including succession planning. Moreover, the Tribunal relies on strong information management practices and up-to-date IT infrastructure to enable it to conduct high-quality inquiries and fair and equitable adjudications despite its unpredictable caseload and modest resources.

Risk Analysis

A key aspect of the Tribunal’s operating environment is that the Tribunal has no control over the size of its case intake in any given year. The number of cases referred is entirely at the discretion of the Commission. Nor does the Tribunal have the luxury of choosing which cases to inquire into immediately (for example a balanced mix of straightforward and complex cases to optimize available resources) and which to postpone. Hearings before the Tribunal are becoming increasingly complex, with motions and objections ever more frequent. And hearings on the merits are longer and increasingly challenging. The Tribunal is also struggling to retain the expertise it needs to manage its workload.  

At the same time, the Tribunal has significant obligations to comply with government-wide horizontal initiatives. For example, it is committed to strengthening its accountability framework and information management capacity, implementing the government’s internal audit policy, and developing measures to enhance human resources management. The unpredictability of its caseload, together with its all too predictable commitments to comply with resource-intensive horizontal initiatives, seriously challenges the Tribunal’s efforts to expedite the hearings and decision writing processes that are its core business.

Expenditure Profile

Spending Trend from 2007–2008 to 2009–2010

[D]

Planned spending for 2009–2010 remained relatively constant at $4.4 million, while authorized spending increased from the previous year by $0.2 million. The difference in authorized spending is attributable to amounts received for salary expenditures relating to approved collective agreements and other salary expenses and to an operating budget carry-forward from 2008–2009.

Actual spending for 2009–2010 increased to near the planned spending amount. Some of the planned expenditures realized are salary expenses related to retirement and parental benefits paid, costs associated with the appointment of a new Chairperson and the completion of an IT Security audit. Other spending increases from 2008–2009 include fees paid to part-time Tribunal members and upgrades to the digital voice recording system.

Note that actual spending in the Expenditure Profile graph and in the Performance Summary table does not include $1.1 million per year for accommodation provided by Public Works and Government Services Canada and for government payments provided by Treasury Board to employee insurance plans.

The Tribunal does not participate in any initiatives for Canada’s Economic Action Plan.

Voted and Statutory Items
($ millions)

Vote # or Statutory Item (S)	Truncated Vote or Statutory Wording	2007–2008 Actual Spending	2008–2009 Actual Spending	2009–2010 Main Estimates	2009–2010 Actual Spending
15	Program expenditures	3.8	3.6	4.0	3.9
(S)	Contributions to employee benefit plans	0.4	0.3	0.4	0.4
Total		4.2	3.9	4.4	4.3

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