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Section II: Analysis of Performance by Program Activity

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.

Program Activity 1: Hearing of Complaints before the Tribunal

The Tribunal receives complaints referred to it by the Canadian Human Rights Commission, initiates an inquiry into each complaint, and seeks to resolve the complaint. Resolution can be by means of a mediated settlement or by means of a hearing and a written decision that either dismisses the complaint or substantiates it and orders a remedy. Tribunal members also conduct hearings into applications from the Canadian Human Rights Commission and requests from employers to adjudicate on decisions and directions given by the Commission under the Employment Equity Act. The entire process, from the referral to the closure of a case, is encompassed in the program activity Hearing of Complaints before the Tribunal.

Program Activity 1: Hearing of Complaints before the Tribunal

2009–2010 Financial Resources ($ millions)			2009–2010 Human Resources (FTEs)
Planned Spending	Total Authorities	Actual Spending	Planned	Actual	Difference
2.5	2.7	2.4	13	13	0

 

Expected Results	Performance Indicators	Targets	Performance Status	Performance Summary
Access to an adjudication process that is efficient, equitable and fair to all who appear before the Tribunal	Timeliness of initiating inquiry process	Initiate inquiry within 10 days of referral of the complaint by the Canadian Human Rights Commission in 90% of cases	Not met Although cases are officially logged in on the date they are referred by the Commission, the inquiry can not be initiated until key documents are also received. These documents frequently post-date referral by as much as a month.	Of the 80 complaints referred to the Tribunal in 2009, inquiries were initiated within 10 days of referral 19% of the time.
	Percentage of hearings commenced within timelines	Commence hearing within 6 months of receiving referral in 70% of cases	Met	Of the 17 cases that proceeded to hearings in 2009, 12 of them (70%) began hearings within 6 months of referral.
	Percentage of cases completed within timelines	Conclude inquiries within 12 months of referral in 70% of cases	Met	70% of cases closed in 2009 were concluded within 12 months of their referral to the Tribunal.
Clear and fair interpretation of the CHRA and the Employment Equity Act Meaningful legal precedents for the use of employers, service providers and Canadians	Number of judicial reviews (overturned vs. upheld)	Majority of decisions upheld or not judicially challenged	Met	Although a higher proportion of decisions than in previous years were referred for judicial review this year, the small number of cases (5 of 11) makes it inadvisable to assign significance at this time. The Tribunal remains satisfied that its decisions continue to meet the expected results. (See fuller discussion under Judicial Review.)

Tribunal 2009–2010 Decisions

The following summaries of Tribunal decisions from 2009–2010¹ illustrate the kinds of complaints brought before the Tribunal and how such cases affect all Canadians. Summaries of other Tribunal decisions rendered in calendar year 2009 can be found in the Tribunal’s 2009 annual report.

Vilven and Kelly v. Air Canada, Air Canada Pilots Association et al.
2009 CHRT 24 (judicial review pending)

The complainants were airline pilots who challenged the provision of their collective agreement providing for mandatory retirement at age 60, alleging that the provision resulted in age discrimination. Their employer and the bargaining agent took the position that the mandatory retirement rule was justifiable under the CHRA since the complainants’ employment had been terminated because they had reached the “normal age of retirement” for employees working in positions similar to their own. They also argued that mandatory retirement was justifiable under the CHRA on the ground that it constituted a bona fide occupational requirement (BFOR).

Since neither respondent established a BFOR in regard to the mandatory retirement rule and since the Tribunal found the CHRA’s “normal age of retirement” provision to be unconstitutional, the Tribunal decided the complaint was substantiated and proceeded to hear evidence and submissions on remedy.

Results for Canadians
In Canada the demographic challenges posed by an aging population and workforce become increasingly relevant and demand more urgent attention with every passing year.

The Vilven and Kelly decision explores vital issues and long-held assumptions in Canadian society about aging and employment, including the economic organization of the workforce, the dignity interests of older workers, and the reconciliation of collective bargaining rights and equality rights.

In particular, this decision provides valuable guidance on the interpretation that can be given to two significant limiting provisions of the CHRA—the normal age of retirement justification and the BFOR justification.

Warman v. Lemire et al.            
2009 CHRT 26 (judicial review pending)

The complainant alleged that the respondent had communicated or caused to be communicated material over the Internet that was likely to expose individuals to hatred or contempt based on prohibited grounds of discrimination (religion, race, colour, national or ethnic origin, and sexual orientation). The respondent denied this allegation, and asserted that the provisions of the CHRA dealing with hate communication were unconstitutional as they violated his freedom of expression guaranteed under the Charter.

The Tribunal found that, except for one article targeting homosexuals and Blacks, the complainant’s allegations were not supported by the evidence.

The Tribunal then ruled on the respondent’s constitutional arguments, in particular, that the hate message provisions of the CHRA constituted an unjustifiable infringement of the respondent’s freedom of expression as guaranteed by the Charter. In the Tribunal’s view, the impugned CHRA provisions, including the monetary penalty sanction that could be imposed after a finding of hate message communication, constituted more than a minimal impairment of the respondent’s freedom of expression. If Parliament wished to impose liability for hate communication without requiring proof of intent, it could only do so in pursuit of the objectives of harm prevention and compensation. The current CHRA scheme, however, with its penalty provision, now also sought to punish moral blameworthiness. Moreover, the addition of the penalty provision, when considered together with the Tribunal’s finding that the CHRA complaints process did not function in as conciliatory a manner as possible, led to the conclusion that the absence of an intent requirement rendered the hate message provisions constitutionally deficient. The Tribunal therefore refused to apply these provisions to the case, and did not issue a remedial order.

Results for Canadians
The Internet-generated revolution in mass communications continues to pose challenges for Canada’s liberal democracy as Canadians debate how best to balance freedom of expression with protection of the vulnerable. In Warman v. Lemire the Tribunal’s reflections on and analysis of the CHRA’s hate message provisions contribute significantly to this vital public discourse.

Hughes v. Elections Canada            
2010 CHRT 4

The complainant, who has post-polio syndrome and uses a wheelchair or walker, claimed that he was denied an accessible polling location and adversely differentiated because of his disability when he went to vote at a church in downtown Toronto on two occasions within a seven-month time span. He alleged that the respondent had discriminated against him in the provision of services.

At the hearing, the respondent admitted that it had adversely differentiated the complainant in the provision of a service. The Tribunal found that additional facts in evidence gave rise to a finding of discrimination on the part of the respondent, including the following: the respondent failed to record and properly investigate the verbal and written complaints precipitated by the complainant’s first polling day experience, and the respondent’s written response to the accessibility issues raised by the complainant was tardy, inaccurate and dismissive in tone.

Having found the complaint to be substantiated, the Tribunal turned to the question of remedy. It awarded the complainant compensation for pain and suffering experienced as a result of the discrimination. The Tribunal then accepted the offer of the Canadian Human Rights Commission (CHRC) to monitor the implementation of the terms of the Tribunal’s order. Some of the order’s stipulations included requirements for Elections Canada to:

• formulate a consultation plan to involve persons with disabilities and disability groups in matters touched on by the Tribunal’s order (e.g., the choice of polling locations, standards of accessibility, signage and training of personnel);
• stop situating polling stations in locations that do not provide barrier-free access;
• review its Accessible Facilities Guide, Accessibility Checklist and the accessibility sections of its manuals for various categories of electoral officers and workers;
• provide sufficient and appropriate signage at elections, so that voters with disabilities can easily find the best route to all accessible polling station entrances;
• review, revise and update its training materials concerning accessibility issues;
• implement a procedure for receiving, recording and processing verbal and written complaints about lack of accessibility at polling locations, and report publicly to Parliament about the number of complaints received for three general election cycles; and
• report to the Tribunal in at least three-month intervals about its progress in implementing the order.

Results for Canadians
In the words of the Tribunal in this case, “voting is one of the most sacred rights of citizenship and that includes the right to do so in an accessible context.” The quote aptly illustrates the significance of this decision. In Hughes the Tribunal also elaborated on the body of principles governing discrimination in the provision of services, an area of the CHRA that had not been as fully explored as employment-related discrimination. In particular, in issuing its multi-faceted remedial order, the Tribunal had an opportunity to concretely articulate general principles about the contents of “future practices orders.”

Roopnarine v. Bank of Montreal            
2010 CHRT 5

The complainant alleged that the respondent terminated her employment because of her disability, and that it used inaccurate performance appraisals and evaluations as a pretext to dismiss her when the real reason for her dismissal was the respondent’s unwillingness to accommodate her wrist injury.

The Tribunal noted that at the time the complainant’s employment was terminated she was suffering from a wrist injury, was on an accommodated leave for that injury, was receiving physiotherapy and was awaiting a specialist’s report to have the accommodation period extended. She was experiencing wrist pain consistent with a repetitive strain injury.

On the evidence, however, the Tribunal found that the complainant’s wrist injury was not a factor in the respondent’s decision to terminate her employment.

The Tribunal also did not find that the complainant had been subjected to adverse differential treatment based on disability prior to her dismissal; the complainant’s manager made every effort to help her improve her skills to facilitate future opportunities, but the complainant refused to accept criticism and direction, and in spite of training, failed to improve.

The respondent’s medical accommodation process in regard to the wrist injury was consistent with its duty to accommodate the complainant and was carried out promptly and in good faith. The complainant herself had an obligation to provide relevant medical information necessary for the accommodation of her disability.

Other accommodation requests by the complainant were not made to the respondent in a timely fashion, or were unsupported by medical authority. Finally, the evidence did not support the allegation that performance concerns were only raised by the respondent after it learned of her wrist injury.

Results for Canadians
The Roopnarine decision highlights some important aspects of the law surrounding disability accommodation. First, it reminds Canadians that the CHRA does not displace all aspects of the employment contract. In particular, employers are not precluded from terminating employees with a disability for non-discriminatory reasons, such as substandard performance unrelated to the disability.

Second, the decision highlights the important role played in the accommodation process by the timely exchange of accurate, relevant information, and prompt follow-up action once the necessary information has been received.

Judicial Review

As the table below illustrates, less than a third of the Tribunal’s 61 decisions of the past four years have been challenged, and less than 10 percent have been overturned. Although an exceptionally high proportion of Tribunal decisions were challenged (5 of 11) in 2009, the small sample size makes it difficult to ascribe statistical significance to this higher incidence of requests for judicial review. So far only one of the challenged decisions has been reviewed by the Federal Court, which upheld the Tribunal’s findings. The Tribunal remains satisfied that, on the whole, its decisions continue to provide fair and equitable interpretations of the CHRA and to set meaningful legal precedents.

Judicial Reviews

	2006	2007	2008	2009	TOTAL
Cases referred	70	82	103	80	335
Decisions rendered	13	20	17	11	61
Upheld	0	5	0	1	6
Overturned	3	2	1	0	6
Judicial review withdrawn or struck for delay	1	0	2	0	3
Judicial review pending	0	0	1	4	5
Total challenges	4	7	4	5	20

Note: Case referral and judicial review statistics are kept on a calendar year basis only.

Program Activity 2: Internal Services

Given the Tribunal’s modest size and straightforward mandate, the Tribunal functions as a cohesive whole, making it difficult to disentangle some organizational activities typically associated with internal services from the core operations of the organization. For example, the Tribunal Registry (which plans and arranges hearings, acts as liaison between the parties and Tribunal members, and manages the operating resources allocated to the Tribunal by Parliament) performs both operational and administrative functions. This is why the performance discussion on the operational priority in Section I was so focused on IT considerations and business process improvements. Similarly, because of the Tribunal’s administrative justice mandate, Legal Services, which in other departments and agencies would be considered an internal service, is actually integral to the Tribunal’s core business of adjudication. Somewhat more typical of an internal service provider is the Tribunal’s IT Services section. This section is charged with ensuring that the Tribunal has the technology required to perform its duties efficiently and effectively. It also provides advice on the use of corporate systems and technology available internally and externally and is responsible for ensuring system compliance with government-wide technology policies, as well as information system integrity, security and continuity. Human resources services are provided by Public Works and Government Services Canada.

Program Activity 2: Internal Services

2009–2010 Financial Resources ($ millions)			2009–2010 Human Resources (FTEs)
Planned Spending	Total Authorities	Actual Spending	Planned	Actual	Difference
1.9	2.7	1.9	13	13	0

 

Expected Results	Performance Status*	Performance Summary
The Tribunal’s human resources management policies and practices are integrated with the Tribunal’s business planning and fully aligned with the government’s public service renewal initiative by March 2010.	Partially met	This year, as planned, the Tribunal completed and implemented a learning guideline as per the Tribunal’s initial framework , initiated a process to develop a values and ethics statement, began reviewing its human resources policy suite, and revised and approved its Integrated Business and Human Resources Plan.
The Tribunal has in place a strategy for the integration of its information and data reporting capacity by March 2010.	Partially met	Given the Tribunal’s sizable and unpredictable caseload and its modest human resources, optimizing information management and IT infrastructure is vital to the smooth functioning of all internal services at the Tribunal. This year the Tribunal completed and approved an Information Management Plan and made progress on a more detailed three- to five-year Information Management Strategy. The Tribunal also responded to the recommendations of a 2009–2010 internal audit of its IT security with a plan to develop and implement a strategic IT plan, including directives on integrating technology management products, practices and policies.

* Because of the concrete and immediate nature of the expected results for this program activity, it was not necessary to develop performance indicators to assess whether these results were achieved.

Performance Analysis

The Tribunal continues to grapple with the ongoing challenge of expediting the disposition of complaints while ensuring high standards of fairness, fostering meaningful settlements and issuing well-reasoned decisions. Early in the fiscal year, the Tribunal re-examined its inquiry procedures and released a new guidance document targeting legal professionals and parties to complaints. The new Practice Note sets out detailed timelines intended to simplify and expedite every aspect of the inquiry and adjudication process. Although experience to date suggests that both the parties and the Tribunal are benefiting from the new guidance document, it is still early to confirm its efficacy. Another significant development this year was the launch of an initiative to re-engineer the Tribunal’s case management system (toolkit). The Tribunal remains optimistic that the adoption of a new software program and revamped case management system next year will improve its capacity to monitor the pre-hearing phase of inquiries, helping to address its perennial caseload-related challenges.

Lessons Learned

Faced once again with a high volume of cases in 2009, and given the increasingly complex nature of complaints referred and the vigorous advocacy displayed by the parties, the Tribunal believes that it will continue to have difficulty achieving some of its time-related service standards, particularly the four-month deadline for decision writing. Nevertheless, such targets are of great help in motivating the Tribunal to seek administrative and process efficiencies wherever they may be found. The Tribunal is also satisfied that its active case management techniques, which help the parties determine with greater precision which issues must be decided at hearing, materially expedite the inquiry and hearing process without exerting undue pressure on the parties. The Tribunal will continue to ferret out improvements that facilitate speedier disposition of cases without compromising the fairness, equity and quality of settlements and decisions.

In pursuit of broader government-wide outcomes, the Tribunal will continue to actively seek opportunities for sharing and collaboration through new technologies and interdepartmental partnerships.

Benefits for Canadians

As a key mechanism of human rights protection in Canada, the Tribunal gives effect to the Canadian ideals of pluralism, equity, diversity and social inclusion. It provides a forum where human rights complaints can be scrutinized and resolved and provides definitive interpretations on important issues of discrimination. The proximate result of the Tribunal’s program is that complainants can air their grievances and achieve closure in a respectful, impartial forum. In the longer term, Tribunal decisions create meaningful legal precedents for use by employers, service providers and Canadians at large.

During 2009–2010, the Tribunal issued 11 written decisions determining whether the CHRA was infringed in a particular instance (subject to rights of judicial review before the Federal Court). Although these decisions have a direct and immediate impact on the parties involved, they also have more far-reaching repercussions, giving concrete and tangible meaning to an abstract set of legal norms. Although the CHRA prohibits discriminatory practices and exempts certain discriminatory practices from remedy, it does not provide examples. Nor does the Act define the term discrimination. Tribunal decisions are therefore the primary vehicle through which Canadians see the impact of the legislation and learn the extent of their rights and obligations under the Act.

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