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Section II - Analysis of Program Activities by Strategic Outcome

Analysis of Performance by Program Activity

The Tribunal's two program activities, described below, together with its management and corporate administration activities, achieve the strategic outcomes and results for Canadians as shown in the logic model (Figure 1).

Program Activity: Public Hearings Under the Canadian Human Rights Act

Financial Resources (Millions of Dollars)

Planned Spending	Authorities	Actual Spending
4.3	4.6	4.6

Human Resources

Planned	Authorities	Actual
26	26	26

Description

Inquire into complaints of discrimination to decide if specific practices contravene the Canadian Human Rights Act.

Results

Clear and fair interpretation of the Canadian Human Rights Act; an adjudication process that is efficient, equitable and fair to all who appear before the Tribunal; and meaningful legal precedents for the use of employers, service providers and Canadians.

This program activity actions all the priorities identified in Section 1.

Performance Indicators

Client satisfaction Serving Canadians Number of cases commenced, pending, completed, withdrawn/discontinued, by time lines Number of cases heard/decided/settled Number of judicial reviews (overturned/upheld)

Program Activity: Review Directions Given Under the Employment Equity Act

Financial Resources (Millions of Dollars)

Planned Spending	Authorities	Actual Spending
0	0	0

Human Resources

Planned	Authorities	Actual
0	0	0

Description

Conduct hearings into: requests from employers to review directions issued to them by the Canadian Human Rights Commission (the Commission); or applications from the Commission to confirm directions given to employers.

Results

Clear and fair interpretation of the Employment Equity Act; an adjudication process that is efficient, equitable and fair to all who appear before the Tribunal; and, meaningful legal precedents for the use of employers, service providers and Canadians.

No activity occurred for this program activity during the period covered by this performance document.

Figure 1 Logic model

Key Results
1. Timely and well-reasoned determinations of human rights disputes referred by the CHRC under the Canadian Human Rights Act, as well as matters heard under the Employment Equity Act, that are consistent with both the evidence and the law.	2. Efficient and expedient registry and administrative services that fully and effectively meet the needs of tribunal members in conducting human rights and employment equity inquiries, and the needs of the parties that appear before them.

LONG-TERM OUTCOMES

En application de la Loi canadienne sur les droits de la personne et de la Loi sur l'équité en matière d'emploi, les individus bénéficient d'un accès équitable aux possibilités qui existent au sein de la société canadienne grâce au traitement juste et équitable des causes relatives aux droits de la personne et à l'équité en matière d'emploi qui sont renvoyées devant le Tribunal canadien des droits de la personne

IMMEDIATE  & INTERMEDIATE OUTCOMES
Quality Service	Compliance	Awareness	Fairness	Credibility	Accessibility

OUTPUTS
Orientation Leadership Training and Sustainability Plans Conferences Member Continuing Education	Liaison Correspondence Panel Selection Case Processing Evidence Gathering Decisions Mediation	Policy and Procedures Advice/Guidance Recommendations Contracts Translation	Information Sharing Reports Communications Computer Systems	Liaison Document Management Record Keeping Work Plans/Budgets Cheques/Invoices Financial Controls Communications Computer Systems

ACTIVITIES
Awareness/ Education Inquiries and Reporting Legal Case Review Liabilities Management	Case Management Case Planning Case Coordination Pre-hearing/ Hearing Deliberation/Decision-drafting	Contract and Procurement Security Facilities Management Translation Services	Information, Tools, and Communications Information Technology Research and Analysis Systems Development and Support	Reception Human Resources Management Modern Comptrollership Information/ Consolidation Allocate/Secure Funds Accounting and Financial Management
Canadian Human Rights Tribunal

Summary of Results Achieved

The Tribunal's primary purpose is to conduct hearings and render decisions. The followingis an overview of 14^[1] final decisions that were rendered in 2006–2007, four of which are profiled in greater detail on page 26.

The Tribunal rendered five decisions regarding complaints filed under s. 13 of the CHRA. Section 13 makes it a discriminatory practice to telephonically communicate hate messages based on a prohibited ground of discrimination. All five cases involved communication over the Internet, and in each case the complaint was substantiated.

The Tribunal rendered two decisions involving employees of the Canadian National Railway. In one case, the complainant was seeking accommodation of his disability, epilepsy. In the second, the complainant sought accommodation of her pregnancy and family obligations. Both complaints were substantiated.

Two cases were also filed against First Nations councils. In one case, the complainant unsuccessfully alleged discrimination in connection with the calculation of her maternity leave top-up benefit. In the other, the Tribunal found that the respondent failed to accommodate the complainant upon return to work following cancer treatment. However, a separate allegation of retaliation by that First Nation for filing the complaint was dismissed.

A complaint against Canada Post regarding accommodation of a disability resulted in a divided ruling. While the employer was entitled to seek out certain medical information regarding the complainant's capacity to do her job, other aspects of the disability management process were found to be discriminatory.

A decision with respect to the National Capital Commission's duty to accommodate a wheelchair user in the design of a public stairway gave the Tribunal the opportunity to address the issue of access to services or facilities customarily available to the public.

Accommodation of disabilities was also at issue in a decision involving the administration of the Canadian Forces' health care plan. In this case the complainant, a member of the Canadian Forces, was denied funding for a fertility treatment.

Finally, the Tribunal dismissed two complaints filed against banks: an age discrimination complaint filed against the Canadian Imperial Bank of Commerce in connection with employee downsizing and pension eligibility, as well as a gender discrimination complaint filed against the Royal Bank of Canada regarding pension buy-back eligibility rules.

1The term « final decision » as used here connotes only those decisions that dealt with the question of whether discrimination occurred, that is to say, decisions on the merits of the complaint. Excluded therefrom are interim decisions and rulings that dealt solely with procedural, evidentiary or remedial issues.

Key Activities

To achieve its strategic outcome, the Tribunal must perform the following key activities:

• It must manage the Tribunal's workload.
• It must provide efficient and effective coordination of complaint cases.

Tribunal's Workload

The Tribunal experienced its highest-ever workload during the period from 2003 through 2005. Although the volume of complaint referrals began to ease in 2005 and 2006, the combined average of cases received during the three years from 2003 through 2005 represents a 145% increase over the Tribunal's previous seven-year average of 44.7 cases per year (see Table 1). Also, in addition to the high number of litigants appearing at hearings without expert legal representation, the preliminary and substantive issues requiring rulings or decisions are increasingly complex, as the nature of human rights in the modern Canadian environment rapidly evolves.

A question often arises as to how closely an adjudicating body should manage the adjudication process to ensure its efficiency. While much depends on the nature of each particular case, the dramatic increase in the workload in recent years has meant that active management of complaint cases before the Tribunal is necessary to avoid delays and minimize additional costs.

This is particularly important for cases where parties are less familiar with the adjudication process and without legal representation, as time invested in case management can engender savings at hearing – minimizing the potential for debates that are irrelevant to the key points for decision.

Case Coordination

As a small organization, the Tribunal must maximize its limited resources to meet the challenge of its current workload. This requires the coordination of mediations and hearings, the pre-hearing process, potential hearings to decide preliminary issues, as well as case management conferences, for cases where mediation is either declined or unsuccessful.

The Tribunal's Registry closely monitors the deadlines for parties to meet their pre-hearing obligations, such as disclosure, identification of witnesses and facts, and submissions on preliminary issues.

From one office in the National Capital Region, the Tribunal's efficiency and effectiveness is challenged when conducting multi-party conferences and hearings at locations across Canada.

In 2006-2007, the Tribunal's Registry enhanced its operational processes, including the manner and nature of its communications with parties, without change to the Tribunal's case management system.

The Tribunal also continues to investigate opportunities for technological advancements, following the successful standardization and harmonization of its computer systems in 2006-2007. An Intranet Committee was initiated to assist in the design of a more effective operational communication tool, and the Tribunal's Information Technology section also completed research into Digital Voice Recording, which will replace the need for stenographic services at Tribunal hearings as of July 2007. These initiatives will create efficiencies within the Tribunal, while realizing considerable cost savings.

Performance Accomplishments

1. Monitoring of Inquiry Performance Targets

Planned Activities	Results Achieved
Monitor the Tribunal's case management initiative and, if appropriate, adjust measures.	Measures confirmed as adequate, although requiring further monitoring.

The Tribunal has identified three leading performance measurement targets for ensuring the timely and effective delivery of its hearing process to clients:

• Commence hearing within six months of receiving the case referral, in 80% of cases;
• Render decisions within four months of the close of the hearing, in 95% of cases; and
• Conclude cases within 12 months of referral.

These targets were reviewed in 2004-2005 through an exercise to develop a Results-based Management and Accountability Framework for the Tribunal. Although the Tribunal's heavy workload has stressed the limits of these measures, we believe they are still relevant for the purpose of evaluating the Tribunal's performance.

Achieving these targets in 2006-2007 proved difficult, due to delays requested by the parties; the complexity of the complaints themselves; and the record high number of complaint referrals to be addressed, despite the easing number of new referrals (see Table 1). Although workload continues to impact the Tribunal's ability to render decisions within its targeted timeframe, delays requested by the parties remain the primary factor affecting the Tribunal's ability to fully meet these targets.

• In 2003-2004, of the 28 cases requiring a hearing, only 12 (42.9%) commenced within a six-month timeframe. The greatest delays were incurred during the earliest period of the transition to the Tribunal's new procedures, which were revised in response to increased workload and changes to the extent of the Commission's participation in inquiries. In 2004-2005, only four (26.7%) of the 15 cases began hearings within the six-month timeframe. In 2005-2006, three (33%) of the nine cases requiring a hearing began within six months. In 2006-2007, none of the 25 cases requiring a hearing began within the six-month target.
• In 2003-2004, 62% of the 16 decisions rendered by the Tribunal were released within four months. Although that target decreased to 54% of the 13 decisions released in 2004-2005, only three decisions took longer than six months, and the average time for release of decisions was only marginally above the four-month target. In marked contrast to the two previous fiscal periods, only 27% of the 12 decisions in 2005-2006 were rendered within the Tribunal's four-month target. This measure saw some improvement in 2006-2007, with 33% of 15 decisions rendered within four months. As three decisions only marginally surpassed the four-month target, 53% were rendered within, or close to, the Tribunal's stated target. In fact, the average time for completion of all 15 decisions last fiscal year was slightly above five months.
• As indicated in Table 2, the average number of days to complete cases in 2002 and 2003 was 214 and 187 days, respectively. This average rose to 199 days in 2004, 209 days in 2005 and 275 days in 2006. The apparent anomaly of a shorter average to close files, as compared to the longer average to first day of hearing, results from the high number of settlements occurring either through mediation or between the parties on their own. For cases requiring a full hearing and decision, the average time to close a case in 2001 was 384 days, with six cases requiring more than one year to finalize. In 2002, this average was reduced to 272 days, none of which exceeded the one-year timeframe. In 2003, the average was 405 days, with eight cases requiring more than one year to complete. Although that average improved slightly to 396 days in 2004, 11 of the total 18 cases exceeded the one-year timeframe. In 2005 and 2006, however, the average to close files after hearing and decision rose to 458 and 427 days, respectively. No cases following a hearing and decision in 2006 were within 12 months of referral from the Commission.

Table 2. Average Days to Complete Cases, 1996 to 2006, from Date of Referral from the Canadian Human Rights Commission

	1996	1997	1998	1999	2000	2001	2002	2003	2004	2005	*2006
To first day of hearing	234	93	280	73	213	293	257	190	297	350	306
Time for decision to be submitted from close of hearing	189	75	103	128	164	177	158	126	129	148	136
Average processing time to close file	266	260	252	272	272	255	214	187	199	211	132
*As at report date, many complaints referred in 2006 are still at the pre-hearing case management stage or otherwise remain open due to delays from the parties. Figures with respect to complaints referred in 2006 are therefore subject to change.

Although the case completion targets established by the Tribunal have not been met during the period under review, we are confident that the case management model involving a member during the pre-hearing phase meets the needs of the parties, while reducing costs. Early case management involvement appears to help avert disagreements that might otherwise create a logjam. For example, in 1994, the Tribunal rendered 16 decisions on the merits of discrimination complaints and issued only 24 rulings (with reasons) dealing with procedural, evidentiary, jurisdictional or remedial issues. In 2005, 11 decisions on the merits and 37 rulings were rendered. In 2006, the number of rulings climbed to 44, with 13 decisions on the merits.

Whether or not this latest trend is wholly or partially attributable to case management is difficult to say. As remarked earlier in this report, complaints brought before the Tribunal have become increasingly complex. It is noteworthy, however, that the number of hearing days in 2005 decreased dramatically from the steady incline experienced over the preceding five years (see Figure 2). Rather, as many case management teleconferences between a Tribunal member and the parties occurred in 2005 as were total days spent at hearings.

Case management as a formal process remains relatively new at the Tribunal, and is expected to result in a more efficient hearing process that will incur savings for all involved. As parties become better acquainted with the Tribunal's active case management approach, it is expected that the cases will move more quickly through the system.

2. Results-Based Management and Accountability Framework (RMAF)

Planned Activities	Results Achieved
Continue development of the Tribunal's Results-Based Management and Accountability Framework (RMAF).	The Tribunal has implemented its RMAF, assessed and adjusted performance measurement mechanisms, and continues to monitor its Modern Comptrollership practices.

In our 2006-2007 Report on Plans and Priorities, we stated that a consultant would be hired to assist us in assessing the effectiveness of the Tribunal's RMAF. This activity is on hold until the framework for implementing the Treasury Board of Canada's new evaluation policy for small departments and agencies, a project involving the Tribunal's management team, is finalized. Also, in order to comply with new requirements for the Treasury Board of Canada's Management, Resources and Results Structure (MRRS) issued in 2006-2007, we made changes to our Program Activity Architecture (PAA), to take effect in 2008-2009. This may require a complete review of our entire performance framework, including indicators, targets and data sources. Since the RMAF, evaluation framework, PAA and MRRS are inter-related, the performance management framework will be revised as necessary in 2007-2008.

3. Management Accountability Framework (MAF) Assessment

Planned Activities	Results Achieved
Review management practices at the Tribunal for their adequacy in supporting its mandate and integrate human resource planning into the Tribunal's business plan framework.	Management Accountability Framework (MAF) assessment completed by Treasury Board of Canada, Secretariat and recommendations being implemented where appropriate.

The Treasury Board of Canada Secretariat assessed the Tribunal's Management Accountability Framework (MAF) in 2006-2007. At this time, the results of the assessment have not yet been released to the public. Areas identified by the Treasury Board of Canada, Secretariat as requiring improvement will be addressed and acted upon in a most timely manner.

The Tribunal participates in the Small Departments and Agencies (SDA) advisory committee to the Office of the Comptroller General of Canada (OCG) regarding the development of a plan for implementation of the Treasury Board's Internal Audit Policy within the SDA community. In 2006-2007, the Office of the Comptroller General of Canada audited the travel and hospitality of SDAs. The Tribunal provided preliminary information to OCG staff, but was not among the group of SDAs chosen for the audit. The Tribunal will, nevertheless, watch closely for the results of the audit and will review the resulting recommendations as may apply to Tribunal procedures and processes.

The Tribunal has also been engaged in consultations with representatives of the Treasury Board of Canada, Secretariat on the development of a plan for implementation of the Treasury Board's evaluation policy within the SDA community. The Tribunal will continue to monitor risks to determine the need for additional internal audits, or the need for evaluation, until these implementation plans for SDAs are finalized.

In 2006-2007, work was initiated regarding the Tribunal's business continuity plan and compliance with Management of Information Technology Security (MITS) standards,as directed by the Treasury Board of Canada, Secretariat. Both are slated for completion in 2007-2008. The Tribunal also continued the ongoing review of management practices and policies to ensure their soundness and relevance in supporting Modern Comptrollership, Human Resources Management Modernization, Service Improvement and Government-On-Line. This includes steps taken to ensure that the Tribunal's human resources plan is relevant to its business plan, while reflecting public service values. The Tribunal also reviewed its information and decision-making practices, and established effective mechanisms for decision recording, transparency and for the development of terms of reference for the organization's management committees.

The Tribunal also conducted a review of its communication tools to foster recognition and use of both of the official languages. The Tribunal's What Happens Next? pamphlet has been revised and republished, our Internet site has been reviewed and enhanced, and modernization of the Tribunal's Intranet has been initiated.

4. Alignment of Management Systems with Government Information  Management Policy

Planned Activities	Results Achieved
Develop and implement in the Tribunal the government-wide Records Documents and Information Management System (RDIMS).	Records, Document and Information Management System (RDIMS) successfully implemented.

In 2006-2007, the Tribunal successfully implemented the Records, Document and Information Management System (RDIMS) for the management of its corporate records. This is part of the organization's information classification and retrieval process, which sustains business delivery improvement, legal and policy compliance, citizen access to information and accountability. By implementing this system, the Tribunal enhanced its Framework for Management of Information (FMI) compliance, and developed various policies and guidelines relating to information management aligned with the FMI. The RDIMS application is also planned for eventual integration with the Tribunal's automated case management database, the Tribunal Toolkit, by 2008-2009. This will further enhance information retrieval efficiencies and strengthen the Tribunal's strategy for ensuring data integrity and business continuity.

The last fiscal year saw the implementation of an action plan to meet the government's Management of Information Technology Security (MITS) and approval of a departmental information technology security policy. Identification of assets was completed, as well as a threat risk analysis of the Tribunal's infrastructure. Certification and accreditation for the infrastructure will be completed by fall of 2007, following completion of a vulnerability assessment. In 2006-2007, the Tribunal also completed and approved a business continuity plan to be tested later in 2007.

Security has been reinforced through awareness sessions provided by the RCMP. A new employee orientation guide that includes security awareness information has also been developed.

A vulnerability assessment and certification of the Tribunal's infrastructure and an external audit are among the activities planned for 2007-2008.

The Effect of Recent Tribunal Decisions on Canadians

The mission of the Tribunal is to provide Canadians with a fair and efficient public inquiry process for the enforcement of the Canadian Human Rights Act (CHRA) and the Employment Equity Act (EEA).

The Tribunal's single program is to conduct hearings, with its principal goal to do so as expeditiously as possible, while rendering fair and impartial decisions that will withstand the scrutiny of the parties involved and the courts that review the decisions. In other words, whatever the result of a particular case, all parties should feel that they were treated with respect and fairness.

In 2006–2007, the Tribunal issued 14 final decisions with reasons that answered the question, "Did discrimination occur in this case?"Tribunal decisions put an end to disputes between complainants and respondents as to whether the CHRA was infringed in a particular instance (subject to rights of judicial review before the Federal Court). These decisions also have an impact beyond the parties, bringing real benefits to Canadian society as a whole.

Simply put, Tribunal decisions give concrete and tangible meaning to an abstract set of legal norms. The CHRA prohibits discriminatory practices. It also offers justifications for certain conduct that may be discriminatory, but it does not give examples or illustrations. For that matter, the CHRA does not define the term discrimination. It is primarily through Tribunal decisions that Canadians can learn of the extent of their rights and obligations under the legislation. As such, a decision dismissing a complaint is just as noteworthy as a decision that finds a complaint to have been substantiated.

The following are summaries of four decisions rendered by the Tribunal in 2006-2007. They offer a glimpse into the kinds of complaints brought before the Tribunal, as well as insight into how such cases affect all Canadians. Summaries of other Tribunal decisions rendered in 2006 can be found in the Tribunal's 2006 annual report.

Brown v. National Capital Commission and Public Works and Government Services Canada 2006 CHRT 26 – Judicial review pending.

The complainant, Mr. Brown, alleged that the respondent, the National Capital Commission (NCC), discriminated against him by denying him "access to services by failing to accommodate [his] disability (wheelchair user), contrary to section 5 of the CHRA." The discrimination was alleged to be ongoing. In question were the steps located at the intersection of York Street and Sussex Drive in Ottawa. Mr. Brown alleged that they are not wheelchair accessible, and the Canadian Human Rights Commission joined him in arguing that persons who could not climb the steps had no way of traversing Sussex Drive at the bottom of the stairs to Mackenzie Avenue at the top.

The Tribunal found that the NCC was legally obliged to provide accommodation to the point of undue hardship in the immediate vicinity of the steps. The elevator access that was offered for those who could not climb the steps was not sufficiently near the site to constitute acceptable accommodation; it required disabled persons to make a detour that others did not. Moreover, the duty to accommodate included an obligation to participate in a meaningful dialogue with the parties requiring accommodation – to make inquiries and consult with the other parties including the complainant – and to continue consulting, until all reasonable accommodation alternatives were exhausted. The Tribunal also found that there was a reciprocal duty on the part of the complainant to participate in such consultations in good faith and to accept a reasonable offer of accommodation. It is impossible to know where a collaborative, open-ended round of consultations might have led since it never came to pass.

The Tribunal found that the NCC had a duty to make the York Street steps accessible, up to the point set out in the CHRA, including an obligation to investigate the possibility of using an adjacent building as a venue for an elevator. The adjacent building is owned by Public Works and Government Services Canada, a department that, along with the NCC, has an obligation to cooperate in the investigation as well as participate in the consultations, since both federal government organizations are emanations of the Crown. The Tribunal found that both respondents failed in their obligations.

Given the legal mandate of the NCC, the Tribunal also found that in determining undue hardship, in this case the duty to accommodate should be informed by the need to respect architectural and aesthetic values at a particular site. The parties were ordered to engage in a new process of consultation and accommodation in accordance with the decision.

Results for Canadians

While many of the complaints decided by the Tribunal deal with employment issues, the application of the Canadian Human Rights Act is not limited to employment matters. In particular, s. 5 of the CHRA addresses access to services and facilities customarily available to general public. The issue of disabled persons' access to public services and facilities is an extremely important one, and presents several conceptual and logistical challenges that do not arise in employment cases. Thus far, the Tribunal has not had many opportunities to explore this facet of the CHRA in the context of alleged structural or architectural barriers. The Brown decision is a significant contribution to this area of the law, and provides Canadians with important guidance on the rights and obligations surrounding the accessibility of public facilities.

Buffet v. Canadian Forces 2006 CHRT 39 – Judicial review pending.

The complainant alleged that the Canadian Forces (CF) denied him an employment benefit by refusing to grant him funding for a reproductive medical procedure (in vitro fertilization). He claimed that this refusal constituted adverse differential treatment based on his disability (male factor infertility), his sex and his family status, in breach of s. 7 of the CHRA. He also alleged that the CF's funding policy regarding reproductive medical procedures was discriminatory, contrary to s. 10 of the CHRA.

The Tribunal found that Mr. Buffett's complaint was substantiated. The CF's health care policy provides a publicly funded service to infertile female members, if involving the participation of their male partners, CF members or otherwise. On the other hand, the CF will not provide this benefit to a male member with infertility problems on the grounds that the procedure involving his female partner is much more medically complex. In both situations, participation of each a male and a female partner is required. Not only is the CF policy discriminatory, evidence to establish that the CF would have incurred undue hardship by accommodating Mr. Buffett and other male CF members with male factor infertility was insufficient. The Tribunal found that the cost of accommodation, as estimated by the respondent, was exaggerated, and the CF did not lead any evidence with respect to its funding or budgets during the period when Mr. Buffett was refused coverage for the treatment.

It was therefore impossible to reliably assess the impact, at the time, of any additional costs arising from an expanded range of health coverage. The complaint was substantiated and the respondent was ordered to fund the treatment, subject to the complainant's doctor's recommendations.

Results for Canadians

Demographic trends in parenting as well as advances in reproductive technology have brought issues surrounding fertility treatment to the fore in Canada. In particular, issues are arising in relation to the ability of a publicly funded health care system to pay for such treatments. The Buffet decision explores the legal relationship between assisted reproduction, and other medical treatments. The decision serves as an important contribution to a legal and policy discourse, which currently engages and affects many Canadians.

Warman v. Kouba 2006 CHRT 50

This complaint was about whether Mr. Kouba using the pseudonyms "proud18" and "WhiteEuroCanadian" communicated hate messages over the Internet, contrary to s. 13(1) of the CHRA.

The author of the impugned messages used what he called "true stories" and news reports to justify unfounded and racist generalizations. His messages vilified Aboriginal Canadians, Blacks and Jews, characterizing these targeted groups as "sexual predators" and inciting fear that children, women and vulnerable people would fall victim to the criminal and violent sexual impulses of the targeted groups. These messages made it highly likely that members of the targeted groups would be exposed to deep feelings of hatred. The messages also provided readers with scapegoats for the world's problems by offering an outlet for strong negative emotions generated by these problems. Tapping into these emotions and diverting them toward the targeted groups, the messages fostered and legitimized hatred toward members of the targeted groups. All the groups targeted by the material in the present case were characterized as dangerous or violent by nature. All ofthe impugned messages characterized the targeted groups in resoundingly negative terms and did not suggest, in any way, that the members might possess any redeeming qualities. The messages in this case fostered the attitude that members of the targeted groups were so devoid of any redeeming characteristics that extreme hatred or contempt toward them could be entirely justified.

Furthermore, the impugned messages argued that it was hopeless to expect civilized, law-abiding or productive behaviour from the targeted groups and ridiculed any reader who might harbour even a partially open mind toward members of the groups. The messages conveyed the idea that Black and Aboriginal people were so loathsome that white Canadians could not and should not associate with them. Some of the messages associated members of the targeted groups with waste, sub-human life forms and depravity. By denying the humanity of the targeted group members, the messages created the conditions for contempt to flourish.

Moreover, the level of vitriol, vulgarity and incendiary language contributed to the Tribunal's finding that the messages in the case were likely to expose members of the targeted groups to hatred or contempt. The tone created by such language and messages was one of profound disdain and disregard for the worth of the members of the targeted groups. The trivialization and celebration in the postings of past tragedy that afflicted the targeted groups created a climate of derision and contempt that made it likely that members of the targeted groups would be exposed to these emotions. Some of the posted messages invited readers to communicate their negative experiences with Aboriginal people. The goal was to persuade readers to take action. Although the author did not specify what was meant by taking action, the posting suggested that it might not be peaceful. The Tribunal found that the impugned messages regarding Aboriginal Canadians and Jewish people attempted to generate feelings of outrage at the idea of being robbed and duped by a sinister group of people. In this way, the messages created the conditions for hatred of members of these groups to flourish. It was clear that the material presented during the inquiry into this matter from both of the impugned websites was likely to expose members of the targeted groups to hatred or contempt. Undisputed evidence presented by the complainant and the Commission on this issue during the hearing established that the respondent had communicated the hate messages presented in the inquiry. The evidence adduced by the Commission consisted of testimony from a member of the Edmonton Police Force, a Witness Statement Form that was authored and signed by the respondent, and evidence provided by the complainant.

The Tribunal concluded that the Commission had adduced credible evidence that supported its allegation that the respondent had communicated the impugned hate messages over the Internet, and the respondent failed to provide a defence. The Tribunal found the complaint to be substantiated and ordered that the respondent cease the communication of messages like the ones that were the subject of the complaint. The Tribunal also ordered the respondent to pay a penalty of $7,500.00.

Results for Canadians

Section 13 of the CHRA forms the basis of a significant number of complaints referred to the Tribunal for Inquiry. However, this provision of the CHRA poses unique interpretive challenges for the Tribunal, and Canadians at large. In particular, one must assess the likelihood that a given message will expose persons to hatred or contempt on a prohibited ground of discrimination. In the Kouba decision, this interpretive task has been facilitated through an extensive examination of the Tribunal's s. 13 jurisprudence. The analysis identifies a number of "hallmarks" displayed by communications that have been found to victimize persons within the meaning of the statute. The Tribunal's hallmark analysis unites disparate findings into a more cohesive body of principles. As such, it renders s. 13 more accessible and comprehensible to Canadians. This is particularly important given that s. 13 is the only discriminatory practice set out in the CHRA in relation to which a monetary penalty may be imposed.

Durrer v. CIBC 2007 CHRT 6

The complainant, Mr. Durrer, had worked for the respondent, Canadian Imperial Bank of Commerce (CIBC), for over 28 years when he was told, in 1999, that his position was to be eliminated due to downsizing and restructuring. His termination crystallized in 2002 after three temporary positions. Mr. Durrer filed a complaint with the Canadian Human Rights Commission, alleging discrimination by CIBC on the basis of age. Mr. Durrer complained that, while he did not lose any pension entitlement or benefits, CIBC did not allow him to continue to work to the bridgeable retirement age of 53 years, when he would be entitled to a pension reduction waiver.

The Tribunal considered three questions of discrimination on the basis of age: (1) the elimination of Mr. Durrer's position in 1999, (2) the decision not to transfer Mr. Durrer in 1999; and (3) whether CIBC interfered with Mr. Durrer's attempts to seek redeployment within the company.

In 1999, the new Chief Compliance Officer, Mr. Young, developed criteria to be used for the termination of certain positions within Mr. Durrer's department. The criteria were primarily compliance, experience, understanding and support of a new model for a compliance department. Mr. Young eliminated Mr. Durrer's position for lawful business reasons – the position was redundant, and not needed in CIBC's newly consolidated, single compliance department model. The fact that CIBC saved money by eliminating Mr. Durrer's position does not make the act a discriminatory one under the CHRA. Mr. Young's decision not to offer Mr. Durrer a position in the new compliance department was not made because of the complainant's age, but rather due to Mr. Durrer's admitted status as a "generalist" in a workplace increasingly defined by "specialists". The evidence also indicated that age was not a factor used by Mr. Young to the detriment of Mr. Durrerin relation to the decision to not redeploy him. CIBC provided assistance to Mr. Durrer from the moment he was notified that his position was being eliminated in October 1999. CIBC offered him the maximum 24-month severance package. Mr. Durrer held three temporary positions over a 28-month period. That is probative evidence that CIBC did not frustrate his attempts to find permanent or temporary work on account of his age. The complaint was dismissed.

Results for Canadians

With the aging of the Canadian workforce, the topic of age discrimination has received new interest from a number of sectors within Canadian society. Further attention was focused on the issue with the Ontario Government's decision to abolish mandatory retirement through amendments that took effect in December of 2006. Given the foregoing, the Tribunal's decision in Durrer constitutes a timely examination of the dynamics present in a workplace when an older employee is laid off. In particular, it addresses the important and related issue of early pension entitlement. Finally, the decision serves as an illustration to Canadian employees and employers that downsizing can occur without targeting older workers.

Judicial Review of Tribunal Decisions

The majority of the Tribunal's discrimination decisions in fiscal year 2005-2006 were not the subject of judicial review proceedings. As noted in Section 1, we perceive this as an indicator of a greater acceptance of the Tribunal's interpretation of the CHRA by the reviewing courts.

Table 3. Judicial Review of Tribunal Decisions

	2003	2004	2005	2006	Total
Cases Referred	130	139	99	70	438
Decisions Rendered	12	14	11	13	50
Upheld	1	4	0	0	6
Overturned	2	0	0	0	2
J.R. Withdrawn / Struck for Delay	1	0	0	1	3
J.R. Pending	0	3	2	3	6
TOTAL challenges	4	7	2*	4	17

*This challenge is really comprised of two separate judicial review applications in respect of one Tribunal decision.

Pay Equity Update

In 1999, the Government of Canada announced its intention to conduct a review of section 11 of the CHRA, "with a view to ensuring clarity in the way pay equity is implemented in the modern workforce." In 2004, the Pay Equity Task Force published its final report, Pay Equity: A New Approach to a Fundamental Right (available at http://www.justice.gc.ca/en/payeqsal/index.html). The Tribunal is awaiting the government's reaction to this report.

Of the four new pay equity cases that were referred to the Tribunal under s.11 of the CHRA, three have settled at mediation and the remaining case is scheduled for hearing in early 2008. All four pay equity cases referred to the Tribunal in 2005 were concluded. Three new pay equity cases were referred to the Tribunal in 2006. Two are scheduled for hearing in late 2007 and the remaining case is still in the case management phase.

Employment Equity Cases

No applications were made in 2006. To date, there are no open cases and no hearings have been held, given that the parties have reached settlements before the commencement of hearings. The EEA was scheduled for parliamentary review in 2005. The Tribunal will await the outcome of the review to assess any impact on its inquiry process.

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