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BC Human Right Tribunal – paulkasman

British Columbia Human Rights Tribunal

Paul Kasman

07/26/2012

Introduction

The BC Human Rights Tribunal (the Tribunal) has been the subject of significant criticism. It has been accused of taking away civil rights (Levant, 2009, p. 43) and threatening freedom of speech (“Human rights complain against Maclean’s dismissed”, 2008). Its work increasingly revolves around controversial issues (BC Human Rights Council [BCHRC], 2011, p. 7).  This paper describes the Tribunal and analyzes its adherence to some of the recommendations made in the Administrative Justice Project (AJP)discussion papers. Recommendations that will be discussed include those involving practice and procedure, speed, dispute resolution, operating agreements, and appointments. The Tribunal’s decision-making process and the merits of the criticism leveled against it will also be discussed.

Mandate

The Tribunal was established in 1997. Its mandate is to fulfill the purposes of section 3 of the BC Human Rights Code (the Code). The purposes of section 3 of the Code are:

1. to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
2. to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
3. to prevent discrimination prohibited by this Code;
4. to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
5. to provide a means of redress for those persons who are discriminated against contrary to this Code (BC Human Rights Tribunal [BCHRT], 2011, p.3).

A complaint must cite one or more areas and one or more grounds of discrimination from the Code. Areas include wages, employment, employment advertisements, services, tenancy, purchase of property, membership in unions, and retaliation against those who make complaints under the Code. Grounds include age, ancestry, colour, family status, unrelated criminal convictions, sexual orientation, sex (including pregnancy), religion, race, political belief, disability, place of origin, marital status, and lawful source of income (BCHRT, 2011, p. 5). The complaint must also provide facts which support a prima facie case (BCHRC, 2011, p. 16).

All of the Tribunal’s adjudications of complaints are made independently from the government. However, the Tribunal is accountable to the Attorney General of BC (Government of British Columbia [GBC], n.d., para. 2).

Tribunal decisions are enforceable in the BC Supreme Court (GBC, n.d., para. 2). Both the complainant and the respondent are entitled to petition for a judicial review in the BC Supreme Court. This must occur within 60 days of the Tribunal’s decision (BCHRT, 2011, p.18).

Staff

The Tribunal is staffed by a Tribunal Chair (BCHRT, 2011, p. 26), seven Tribunal members (GBC, n.d., figure 1), four legal counsels, an Executive Coordinator, two inquiry officers, seven case managers, and three administrators (BCHRT, p. 26).

The Tribunal Chair selects members who are trained in law. All current tribunal members have law degrees (BC Human Rights Tribunal [BCHRT], n.d.c.). The Chair and all members are ultimately appointed by the Lieutenant Governor in Council (GBC, n.d., para. 2).

    

Functions

The Tribunal performs functions in support of its mandate, some of which involve the dissemination of information. The Tribunal’s office and website provide complaint forms and information sheets to the public. Inquiry officers provide inquiring members of the public with information about human rights protection under the Code. They also provide information about the complaint process. Additionally, they refer inquirers to other organizations which provide assistance in human rights related matters. (BCHRT, 2011, p. 27).

The Tribunal’s main function is to process complaints, over 1100 of which are received annually (BCHRC, 2011, p. 7). A complainant files a complaint by filling out a complaint form and sending it to the Tribunal. (BC Human Rights Tribunal [BCHRT], n.d.d., p. 2). The complaint can be sent by mail, fax, hand, courier, or process server (BC Human Rights Tribunal [BCHRT], n.d.e., p. 7). A receptionist receives the complaint form and a case manager reviews it for completeness. The complaint must be filed within six months of the alleged incident (BCHRT, n.d.d., p. 2) and must be within the Tribunal’s jurisdiction (BCHRT, 2011, p. 4).

If the complaint is accepted, the Tribunal contacts the respondent, who may file a response (BCHRT, 2011, p.3). The Tribunal also allows the respondent to submit an application to dismiss the complaint. There are three common reasons for dismissal of a complaint. These are that it doesn’t contravene the Code, has little prospect of success (BCHRT, p.8), or wouldn’t further the purposes of the Code (BCHRT, p.9). If the respondent’s request for dismissal is successful, or if both parties settle the issue, the process ends here.

Alternatively, the Tribunal gives both parties the opportunity to participate in a Settlement Meeting. This is a venue for a Tribunal-assisted creative solution to a complaint. The goal is to avoid a Hearing, which is considered more adversarial. An example of a Settlement Meeting solution is an apology acknowledging a breach of the Code (BCHRT, 2011, p.6).

The final stage of the complaint process is a Hearing. Between 50 and 60 complaints proceed to the Hearing stage each year. This is 5.9 percent of all complaints (BCHRC, 2011, p. 26). To reach the Hearing stage takes approximately 12 to 14 months (BCHRC, p. 7). The Tribunal has several functions to prepare for a Hearing. These include collecting witness lists, relevant documentation, and the parties’ positions on a suitable remedy (BCHRT, 2011, p. 28). The Hearing is held in front of between one and three Tribunal members. The members decide whether discrimination is proven and whether the respondent has a valid defense. Based on this decision, members either dismiss a complaint or order a remedy (BCHRT, p. 28). A financial remedy is usually between $5,000 and $10,000 (BCHRC, p. 20).

Activities

The Tribunal serves as a quasi-judicial body operating under a complaint-driven direct access model (BCHRT, 2011, p.3). The direct access model provides access to justice to those who believe that they have suffered discrimination. For example, the Tribunal is designed to accommodate complainants who lack legal knowledge and financial resources (BCHRC, 2011, p. 24). The model is also used because it improves the Tribunal’s ability to specialize in human rights. Specialization is considered important because it is at the heart of administrative law (BCHRC, p. 5).

The Tribunal manages its own staffing, budget, real property, and contracting. The Tribunal office is located in Vancouver, BC It also conducts Hearings and Settlement Meetings in locations throughout BC (BCHRT, 2011, p.3).

Criticism and Controversy

The Tribunal has made some decisions that have motived critics to question it’s decision-making process. These include a 2007 section 13 (disability) decision. This decision awarded a complainant $50,000 for being fired from a McDonald’s restaurant for failing to meet a hand washing requirement (Levant, 2009, p. 55).  In a controversial 2002 decision, the Tribunal awarded a male-to-female transsexual complainant who had not been allowed to be a rape crisis counselor for women (Levant, p. 50). This decision was overturned by the BC Court of Appeal (Levant, p. 53).

The Tribunal has been criticized for policies perceived as being biased against respondents. For example, even respondents who win complaints pay their own legal fees. Complainants pay nothing (Levant, 2009, p. 28), and have access to free legal representation where respondents do not (BCHRC, 2011, p. 20). The Tribunal also protects complainants from law suits or prosecution relating to the complaint. This is even the case when complainants abandon their complaint well into the process (Levant, p. 29).

However, the Tribunal has supporters who endorse its decision-making process.  The BC Human Rights Council (the Council) (2011), argues that complainants and respondents usually receive a quick and fair resolution (BCHRC, p. 3). They also cite instances in which the Tribunal has awarded costs to the respondent where the complainant has acted improperly. An example of such an action has been making false statements (BCHRC, p. 20). The Council has not found any statistical evidence of problems with the Tribunal or its process (BCHRC, p. 25). In fact, it states that the Tribunal has innovated to successfully meet the goals of the AJP (BCHRC, p. 5).

The Administrative Justice Project

Major changes to the Tribunal came as a direct result of recommendations made by the AJP. One major result was the transition from a commission model to the direct access model discussed above (BCHRC, 2011, p. 4-5). This adjustment took away the Tribunal’s investigative powers and focused its efforts more on resolution (MacNaughton, n.d., p. 1). Despite this important change in the Tribunal, there is evidence that it must go further in implementing the AJP recommendations.

The AJP (2002a) suggests that as a general rule, administrative tribunals should establish their own practices and procedures (p. 45). However the AJP (2002b) also states that all administrative tribunals with decision-making functions are bound by natural justice and procedural fairness (p. 28). Upon review of some of the Tribunal’s decisions, it appears that it has followed the former recommendation at the expense of the latter. While viewing Kesey v. Moorehouse Management Ltd., I witnessed questionable practices and procedures. The Member, Penny Lane, failed to acknowledge objections made by the respondent’s Council. Pieces of evidence that had not been seen by the respondent or his council were accepted into evidence at random points during the Hearing. The testimony of an absent party who could not be cross-examined was accepted into evidence. The Member failed to intervene when parties talked out of turn and interrupted one another. The Member also spent almost all of the Hearing staring at her computer while typing; in doing so she may have missed important body language cues that could have changed her interpretation of events. No other Members or Tribunal staff were present during the Hearing to support her in this regard. All of these occurrences could reasonably be expected to have impacted the decision-making process.

Kesey was not unique in its concerning procedures and practices. The 2008 Hearing of Elmasry v. Rogers Publishing and MacQueen had similar problems. In Elmasry, the complainant failed to attend his own Hearing. This calls into question the basic element of natural justice that the target of a lawsuit may face their accuser (Levant, 2009, p. 25). It also violates the above mentioned AJP position that the tribunals are bound by natural justice. The Tribunal allowed the complainant’s legal researcher to act as a surrogate witness and provide hearsay evidence on the complainant’s behalf. As with Kesey, Council objections were ignored and procedural issues were allowed to proceed without intervention from Tribunal Members (Levant, p. 26). As with Kesey, the respondent’s council was not given access to various documents until part way through the Hearing (Levant, p. 27). As with Kesey, these occurrences could have impacted decision-making.

The prevalence of procedural concerns in these cases becomes less surprising upon review of a report written by Heather MacNaughton. She is the Member who presided over Elmasry. In Lessons Learned (n.d.), she states that while rules of procedure are important, flexibility to “waive and adapt rules” are as well. She suggests that tribunals should have “broad rule making power” (p. 3). These comments seem to diverge from the AJP’s suggestion that there be more consistency in the power to admit evidence (2002b, p. 22).

In at least one area, the government appears to have used statute to enforce an AJP recommendation on procedure. The Tribunal’s governing statute clearly lays out the tribunal’s ability to consider and admit evidence. Section 27.2 (2) states that:

Nothing is admissible in evidence before a member or panel that is inadmissible in a court because of a privilege under the law of evidence (Human Rights Code, 2012).

This statute directly meets the AJP (2002b) recommendation that evidence that is not admissible, particularly privileged evidence, be set out in statute (p. 22).

The AJP (2002a) argues that in establishing the appropriate level of tribunal independence and accountability, government should be guided by certain principles. One is that tribunals should be accountable for producing decisions in a timely fashion (p. 42). The Tribunal has seen definite improvements in this regard. Heather MacNaughton (n.d.) states that greater speed is one of the benefits of the direct access model established in response to the AJP (p.1). This model should allow a Hearing to occur less than a year from a complaint being filed (p. 2). This is a significant improvement from the three years experienced under the commission model (BCHRC, 2011, p. 2). However, the AJP does not indicate what constitutes a timely decision. Therefore, it is not clear whether one year is an acceptable timeframe. It would be beneficial for the government define “timely” so that appropriate action can be taken when the Tribunal fails to fulfill this expectation. Nonetheless, increased speed in decision-making addresses the criticism that “the process becomes the penalty” (Levant, 2009, p. 141).

The AJP (2002a) suggests that as part of tribunals’ service planning, they pursue early and alternative dispute resolution techniques (p. 46). The Tribunal does this. In Kesey, the parties attended an unsuccessful Settlement Meeting some months prior to the Hearing. At the beginning of the Hearing, the Member asked the parties whether they were interested in another Settlement Meeting (they declined). At the close of the Hearing, the Member instructed the parties that settlement was still an option through the tribunal or outside of it.

The AJP (2002a) recommends that tribunals maintain operating agreements with the government, which specify elements of their management framework (p. 49). The Tribunal does not have a Memorandum of Understanding (MOU). However, the Tribunal is governed by rules in the Human Rights Code and the Administrative Tribunals Act. For example, the Tribunal provides annual reports on its activities as laid out in the Human Rights Code (1996, para. 39.1). Also, the Tribunal Chair is given specific responsibilities which are laid out in the Administrative Tribunals Act (2004, para. 9). Other issues, such as identifying opportunities for providing shared services, are not discussed in these documents. The Tribunal might benefit from a comprehensive MOU to encompass this and other issues.

The AJP (2002a) suggests that tribunals improve accountability by using open, transparent, merit-based appointment processes (p. 42). It suggests fixed term appointments with a range of three to five years. Initial appointments for terms can be less than two years (p. 43). The Tribunal’s appointment policy follows these suggestions. Appointments to the Tribunal are merit-based by statute (MacNaughton, n.d., p. 6). Members are appointed for up to two six-month terms, or a renewable five-year term (BC Human Rights Tribunal., n.d.a., para. 3, 9). Five year terms are considered important for maintaining Members’ independence (MacNaughton, p. 6).

Conclusion

While the BC Human Rights Council argued that the BC Human Rights Tribunal has successfully met the goals of the AJP, this is only partially true. Important strides have been made in speed, dispute resolution, and appointments. There is still work to be done to improve practices and procedures and operating agreements. Instituting more of the AJP recommendations and reforms will not eliminate the criticisms and controversies associated with the Tribunal. Tribunal Hearings are inherently adversarial, so decisions cannot satisfy all stakeholders. However, instituting more of the AJP recommendations would likely improve the Tribunal’s decisions making process. This may increase respect for the Tribunal, ultimately reducing the scope of the controversy associated with it.

 

WC: 2398

 

References

Administrative Justice Project. (2002a). On Balance: Guiding principles for administrative justice reform. Retrieved from http://www.ag.gov.bc.ca/ajo/down/white_paper.pdf

Administrative Justice Project. (2002b). Providing administrative tribunals with essential powers and procedures: Report and recommendations. Retrieved from https://docs.google.com/viewer?a=v&q=cache:w8Wee50rpAMJ:www.gov.bc.ca/ajo/down/providing_adminstrative_tribunals_with_essential_powers_and_procedures.pdf+%22providing+administrative+tribunals+with+essential+powers+and+procedures%22&hl=en&gl=ca&pid=bl&srcid=ADGEESi2c_r5uRdVhkfJzDKx4f7ka99TzffekjkeAY1q5A1xApxUatW2-sIerhfjFca7FXeiDGnXIT4uLxHJj_2E19bQr81zZ5tooI9v3cqOX6wztMN17JSLeZ_Stdihv33IUtRgKLvy&sig=AHIEtbQKWOseG9rFKQMyRpsI_LyseVF6jA

Administrative Tribunals Act. (2004). Retrieved from http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_04045_01#

BC Human Rights Coalition. (2011). Human rights process in BC: The system explained. Retrieved from www.bchrcoalition.org/documents/HistoryandProcess2011_000.pdf

BC Human Rights Tribunal. (2011). Annual report 2010-2011. Retrieved from http://www.bchrt.bc.ca/annual_reports/info/Annual_Report_2010-2011.pdf

BC Human Rights Tribunal. (n.d.a.). Employment opportunities. Retrieved from http://www.bchrt.bc.ca/Employment_opportunities/index.htm

BC Human Rights Tribunal. (n.d.b.). Annual reports. Retrieved from http://www.bchrt.bc.ca/annual_reports/index.htm

BC Human Rights Tribunal. (n.d.c.). Tribunal members. Retrieved from http://www.bchrt.bc.ca/tribunal_members/index.htm

BC Human Rights Tribunal. (n.d.d.). Guide 1 – The BC human rights code and tribunal. Retrieved from http://www.bchrt.bc.ca/guides_and_information_sheets/guides/Guide1_2005.pdf

BC Human Rights Tribunal. (n.d.e.). Guide 2 – Making a complaint and guide to completing a complaint form. Retrieved from http://www.bchrt.bc.ca/guides_and_information_sheets/guides/English_Guides_2.pdf

Government of British Columbia. (n.d.). BC human rights tribunal. Retrieved from http://www.fin.gov.bc.ca/BRDO/boardView.asp?boardNum=128984

Human Rights Code. (2012). Retrieved from http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96210_01#section27.2

Human rights complain against Maclean’s dismissed. (2008, June 28). CTV News. Retrieved from http://www.ctv.ca/CTVNews/TopStories/20080628/steyn_commission_080628/

Levant, E. (2009). Shake down: How our government is undermining democracy in the name of human rights. Toronto, ON: McClelland & Stewart.

MacNaughton, H. (n.d.). Lessons learned: The BC direct access human rights tribunal. Retrieved from http://www.justice.gov.yk.ca/pdf/Heather_MacNaughton_Article.pdf