ARCHIVED - Canadian Human Rights Tribunal

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Chairperson's Message

The human rights landscape in Canada has changed considerably since the Canadian Human Rights Act first came into effect in 1978. Amendments to the Act in 1998 resolved long-standing concerns about the impartiality of the Tribunal and established it as an independent entity separate and distinct from the Canadian Human Rights Commission to determine whether discrimination within the meaning of the Act has occurred.

Because the experience of discrimination goes to the very core of who we are, every decision that refines the interpretation of the Canadian Human Rights Act—that clarifies what, exactly, discrimination is or isn't—brings us a little closer to the Act's ideals of social justice and inclusiveness. Over the past three decades, Tribunal decisions have provided definitive illustrations of what constitutes sexual harassment, helped diversify the federally regulated workplace, guided employers in accommodating people with disabilities, and fostered awareness in society as a whole of the systemic and often unintentional nature of discrimination and the desirability of proactive, results-based solutions. In ordering remedies, the Tribunal has sought to create a climate in which negative practices and negative attitudes can be challenged and discouraged.

The Tribunal's reinstatement in 2003 of its mediation process has meant that many complaints are resolved without need of a formal hearing. More than 40 percent of cases referred to the Tribunal proceed first to mediation, and more than 70 percent of these reach a mediated settlement. Many such settlements include clauses committing respondents to create or revise institutional policies on discrimination. Mediation also affords the parties the opportunity to share a common understanding and to move on with their lives.

Through its written decisions and its mediation process, the Tribunal has contributed to the Canadian ideals of social inclusion and diversity, serving the public interest at optimal value to the public purse.

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Section 1: Departmental 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 and determines whether the activities complained of violate the Canadian Human Rights Act (CHRA). The purpose of the CHRA is to protect individuals from discrimination and to promote equal opportunity. The Tribunal also decides cases brought under the Employment Equity Act (EEA) and, pursuant to section 11 of the CHRA, determines allegations of wage disparity between men and women doing work of equal value in the same establishment.

Responsibilities

In hearing complaints under the CHRA and the EEA, the Canadian Human Rights Tribunal considers matters concerning employment or the provision of goods, services, facilities or accommodation. The CHRA makes it an offence for federally regulated service providers and employers to discriminate against any individual or group on one of the following 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
• a conviction for which a pardon has been granted.

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, and if so, the appropriate remedy to compensate the victim of the discriminatory practice, as well as policy adjustments necessary to prevent future discrimination.

Most of the cases that come before the Tribunal do not involve malicious acts of discrimination. Rather, conflicts arise from long-standing practices, legitimate concerns by employers or conflicting interpretations of statutes and precedents. The role of the Tribunal is to discern the positions of the parties and establish fair and appropriate "rules" to resolve the dispute.

The Tribunal inquires into complaints under the CHRA that are referred to it by the Canadian Human Rights Commission, usually after a full investigation by the Commission. The Commission resolves most of its cases without the Tribunal's intervention. Cases referred to the Tribunal generally involve complicated 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 the allegation, then the Tribunal must dismiss the complaint.

Strategic Outcome and Program Activity Architecture

Program Activity Architecture

Summary of Performance

2008–09 Financial Resources
(in $ millions)

Planned Spending	Total Authorities	Actual Spending
4.4	4.4	3.9

2008–09 Human Resources (FTEs)

Planned	Actual	Difference
26	26	—

Performance Summary

Strategic Outcome 1: 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 Indicators	Targets	2008–09 Performance
Tribunal decisions/rulings	Rendering decisions within 4 months of the close of the hearing, in 80% of cases	Not met. Ongoing review of case management process to improve efficiency.

Program Activity	2007-08 Actual Spending	2008-09 (in $ millions)				Alignment to Government of Canada Outcomes
		Main Estimates	Planned Spending	Total Authorities*	Actual Spending**
Hearings of complaints before the Tribunal	4.2	4.4	4.4	4.7	3.9	Social Affairs Creating a diverse society that promotes linguistic duality and social inclusion. The Tribunal's singular program, to conduct inquiries into complaints of discrimination in accordance with the CHRA, is a legislatively designed alignment with the government's initiative for creating a diverse society that promotes linguistic duality and social inclusion.
Total	4.2	4.4	4.4	4.7	3.9

* Total authorities include main estimates, carry-forward revisions and salary compensation amounts.
** Actual spending in 2008–09 was lower than forecast due to imposed government spending freezes and because fewer hearing days were held than in prior years.

Contribution of Priorities to Strategic Outcome

Priority	Type	Status	Linkages to Strategic Outcome
Monitor Tribunal inquiry performance targets.	Ongoing	Partially met	Hearings of complaints before the Tribunal The Tribunal is continuing to adjust its case management model to assist in ensuring complaint inquiries are conducted in a fair and expeditious manner, as required by the Canadian Human Rights Act.
Strengthen the Tribunal’s human resources management capacity.	Ongoing	Met	Hearings of complaints before the Tribunal Internal services The Tribunal will continue to research, develop and implement corporate and administrative efficiencies to best support and enable an efficient and expeditious Tribunal inquiry process, as required by the Canadian Human Rights Act.
Integrate the Tribunal's technology management practices and policies.	Ongoing	Partially met	Hearings of complaints before the Tribunal Internal services The Tribunal will continue to research, develop and implement innovative technology solutions and efficiencies to best support and enable an efficient and expeditious Tribunal inquiry process.

Priority 1: Monitor Tribunal inquiry performance targets.

The Tribunal has assessed inquiry performance with regard to the following targets:

• Begin hearings within 6 months of receiving a complaint referral in 70 percent of cases.
  Results: 8 percent of hearings conducted in 2008–09 met this target.
• Render decisions within 4 months of the close of a hearing in 80 percent of cases.
  Results: 5 percent of 19 decisions met this target in 2008–09.
  
• Conclude inquiries within 12 months in 70 percent of cases.
  Results: 71 percent of cases closed in 2008–09 met this target.

The Tribunal has been successful at opening files and engaging the parties in the inquiry process without undue delay from the time complaints are referred by the Commission. However, the Tribunal continues to face difficulty achieving its other three inquiry performance targets, despite modifications to these targets from the previous fiscal year.

A new approach to case management, introduced in 2005, was designed to help the parties expedite their preparations for hearings. An experienced Tribunal member conducts case management conferences (usually three) with the parties at key pre-hearing intervals to help them understand and meet their obligations (such as disclosure, planning witnesses, experts and evidence) in preparation for hearing. The Tribunal's case manager also sets deadlines for the parties to meet those obligations.

The delays in proceeding to hearing are sometimes a function of the complexity of issues arising from the complaints themselves. More frequently, however, the delays arise in cases where parties are representing themselves and do not have experience presenting a case before a quasi-judicial forum.

The Tribunal makes every effort to help the parties understand the complaint inquiry process. In some instances, especially complaints where the parties become embroiled in issues of higher complexity, members are required to decide a multiplicity of motions and give directions or instructions on questions of evidence or law, all the while mindful of avoiding further delay.

The Tribunal also continues to miss its target for rendering its decisions within 4 months of the close of hearing. Unlike hearings before the courts, where parties are usually represented by lawyers who meticulously organize their facts and arguments, Tribunal hearings routinely involve parties who are without professional legal assistance and who present a morass of facts, evidence and law.

To determine whether discrimination has occurred under the Act, Tribunal members must spend time extracting historical facts, testimony, evidence and law from the complainant's tangled presentation. While timely decision making is important, the need to render quality decisions, both in the interests of the parties and in the public interest, is paramount. Moreover, and especially given the absence of a clause in the Tribunal's empowering legislation that would insulate Tribunal decisions from Federal Court scrutiny, members hearing a complaint must ensure that their decisions fully address the evidence presented by the parties and provide a complete and cogent synopsis of the law relevant to the complaint to ensure that the decision withstands judicial review.

Meticulous decision making takes time. Nevertheless, given the inherently emotional nature of human rights complaints and their potential impact on the lives of the parties affected, the Tribunal continues to make every effort to render decisions in the shortest possible time. It will continue to scrutinize and adjust its case management model to maximize its efficiency and effectiveness in helping the parties meet their pre-hearing obligations expeditiously.

While the above-mentioned targets remain a challenge, the Tribunal is confident that the efforts undertaken by the Tribunal to meet them are headed in the right direction. A Tribunal assignment schedule has also been designed to ensure that a Tribunal member is available to meet the earliest possible availability of the parties for case management conferences and hearings.

Despite the difficulties in meeting its targets, the Tribunal has avoided a backlog. No cases referred for inquiry by the Commission prior to 2005 remain on the Tribunal's roll and only a small number of complaints—for example, cases that are awaiting judicial interpretation or where decisions are already under reserve—remain outstanding from years 2005, 2006 and 2007.

Priority 2: Strengthen the Tribunal's human resources management capacity.

In 2008–09, the Tribunal:

• completed and implemented an Integrated Business and Human Resources Plan;
• developed a Learning Guideline;
• initiated an organization-wide policy suite review; and
• implemented a new health and safety program.
  

The Tribunal has remained closely in step with the government's human resources management modernization initiative. In 2008–09, the Tribunal completed its Integrated Business and Human Resources Plan (IBHRP). The IBHRP covers a three-year period, from 2008 to 2011, and follows a process that links the Tribunal's business objectives with its human resources planning. Management at all levels, as well as employees and bargaining agent representatives were consulted during the development of the Tribunal's IBHRP, which received senior management committee approval in November 2008. The Tribunal's IBHRP will next be reviewed for update in late 2010 to ensure continuity in meeting the needs of the Tribunal's mandate and business goals.

The Tribunal continued in 2008–09 to be strongly supportive of learning among its personnel and encouraged employees to pursue excellence in continuous learning and professional development. A Learning Guideline for professional development has now been developed for the Tribunal. Subject to final input from the bargaining agents, approval by the Tribunal senior management committee is scheduled for the fall of 2009.

In support of the government's public service modernization and renewal initiative, the Tribunal has also begun a comprehensive review of its full suite of management policies and practices. This process focuses on ensuring relevance, efficiency and effectiveness of the Tribunal's policies and alignment with the Tribunal's business processes and planning. Tribunal employees and the bargaining agents have been engaged in this process. Full integration of the Tribunal's revised policy suite with its IBHR is expected to be completed by end of fiscal year 2009–10.

The Tribunal reconstituted its Workplace Health and Safety Committee in 2008–09, based on the new requirements of the Canada Labour Code. Although the Tribunal has a complement of only 26 full-time equivalents (employees), it nevertheless is required to have a Workplace Health and Safety Committee. The purpose of the committee is to assist Tribunal management in ensuring that appropriate measures are in place for preventing workplace health and safety hazards. The next step will be to complete an action plan for the Tribunal's Health and Safety Program, planned for 2009–10.

Tribunal personnel, through the Small Agency Administrators' Network (SAAN), continued in 2008–09 to participate in an advisory capacity to the Office of the Comptroller General of Canada to assist with the implementation of the internal audit process for small departments and agencies. The Tribunal has a risk management framework and internal audit plan in place. Steps have also been completed for an internal audit in 2009–10 of the Tribunal's information technology (IT) system security, as a follow-up to the certification received by the Tribunal in 2007–08 under the government's Management of Information Technology Security Standard.

In 2008–09, Tribunal personnel also continued to play a leading role in the SAAN initiative for identifying and developing opportunities for sharing internal services within the community of small departments and agencies.

As a micro agency, the Tribunal harbours no illusions about its limited capacity to help shape the broader federal public service. Nevertheless, the Tribunal will continue to seek out every opportunity to work with other government departments and agencies, especially those of like size and mandate, to assist in meeting the government-wide challenge for greater cost-effectiveness and reduced costs through excellence in human resources management practices. It will also seize opportunities to contribute wherever and whenever possible to public service renewal.

Priority 3: Integrate the Tribunal's technology management practices and policies.

The Tribunal continued to focus on the security and integrity of network infrastructure and data systems in 2008–09. As noted under Priority 2, steps have been completed for an internal audit in 2009–10 of the Tribunal's IT system security as a follow-up to the certification received by the Tribunal in 2007–08 under the government's Management of Information Technology Security Standard.

A major redesign of the Tribunal website was also undertaken in 2008–09 to conform to Common Look and Feel 2.0 standards. Moreover, a complete upgrade of the Tribunal's conference video/audio system was initiated to allow for the integration of the Tribunal's digital voice recording system with its sound and presentation system. New technology was introduced, increasing the Tribunal's ability to offer videoconferencing services via the Internet. This will help reduce case management costs noted under Priority 1.

A business process re-engineering study planned for 2008–09 was delayed because of unexpected heavy demands on the Tribunal's very limited IT resources. The study, which is intended to guide the development of a roadmap document outlining the steps to improve service performance, will be started in early 2009–10. This project will assess the organization's business requirements and develop process improvements that extend business intelligence and real-time reporting capabilities throughout the organization. The Tribunal's IT Section will undertake a subsequent IT-focused project that will evaluate the options for implementation contained in the IT-related recommendations of the roadmap document. Building on the outputs of the first project, the IT project will meet future business needs and include design, implementation, operations and support, allowing for system integration development and implementation of enhancements, with a projected completion by the 2009–10 year-end.

Risk Analysis

The principal risks faced by the Tribunal are the increased pressure on its resources from a heavy and unpredictable workload and its obligations vis-à-vis government-wide horizontal initiatives.

Between 1996 and 2002, the Canadian Human Rights Commission referred an average of 44 human rights complaints to the Tribunal annually. Between 2003 and 2008, that figure averaged 103. The Tribunal's heavy workload is expected to persist into 2009 and 2010, and continue to challenge the Tribunal's resources.

Micro agencies such as the Tribunal typically struggle with the additional resource demands posed by resource-intensive, albeit necessary, horizontal government initiatives. The Tribunal is continuing work on several such initiatives, strengthening its accountability framework and its information management capacity, implementing the internal audit policy, and developing measures to enhance human resources management in the context of public service renewal.

Despite its limited resources, the Tribunal plans to satisfy these significant obligations over the next three fiscal years, using a combination of operational and corporate strategies. Two 2005 initiatives address the risks from its workload challenges: a case management system for closely monitoring the pre-hearing phase of inquiries, and the Tribunal Toolkit, an automated case management system. To ensure the continuity of the expertise needed for addressing the workload risk, the Tribunal is also planning to take steps to enhance human resources retention, knowledge transfer and succession planning. This will be done not only as part of the Tribunal's human resources management approach, but also in line with actions to be developed in 2009–10 in working with the Tribunal's staff to respond to the results of the 2008 federal Public Service Employee Survey.

The Tribunal has adopted a forward-looking approach that is integrated with its business planning process and that broadens the management dimensions of leadership, innovation, probity, transparency and accountability at the Tribunal. 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. The Tribunal believes this approach will mitigate the pressure caused by horizontal initiatives while ensuring that the Tribunal continues to be well positioned to carry out its mandate.

Expenditure Profile

Spending Trend

In each of these years, the planned spending and main estimates amounts were the same. Spending trends remain relatively constant over time. Actual spending amounts shown in this table and in the Performance Summary table do not include services provided without charge by other government departments and agencies of about $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.

An increase in actual spending occurred in 2006–07 due to salary expenses related to retirement and parental benefits paid and due to increased operating costs related to an increase in the number of hearing days held. Actual expenses have since decreased, returning to pre-2006–07 levels.

Voted and Statutory Items
(in $ millions)

Vote # or Statutory Item (S)	Truncated Vote or Statutory Wording	2006-07 Actual Spending	2007-08 Actual Spending	2008-09 Main Estimates	2008-09 Actual Spending
15	Program expenditures	4.2	3.8	4.0	3.6
(S)	Contributions to employee benefit plans	0.4	0.4	0.4	0.3
Total		4.6	4.2	4.4	3.9

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