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Section 2: Analysis of Program Activities by Strategic Outcome

Performance Analysis

The Tribunal's single strategic outcome is that 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. Its ongoing program priority is to carry on business as usual, that is, to dispose of the complaints brought before it by means of a fair and orderly process of inquiry, including mediated settlement if possible, public hearings and written decisions.

Program Activity by Strategic Outcome

Program Activity: Hearings of Complaints before the Tribunal

2008–09 Financial Resources ($ millions)			2008–09 Human Resources (FTEs)
Planned Spending	Total Authorities	Actual Spending	Planned	Actual	Difference
4.4	4.7	3.9	26	26	—

Expected Results	Performance Indicators	Targets	Performance Status	Performance Summary
Clear and fair interpretation of the Canadian Human Rights Act and the Employment Equity Act	Timeliness of initiating inquiry process	Initiate inquiry within 10 days of referral in 90 percent of cases	Partially met, ongoing	Performance measurements confirmed
Access to an adjudication process that is efficient, equitable and fair to all who appear before the Tribunal	Percentage of cases completed within timelines	Commenced hearings within 6 months of receiving a complaint referral in 70 percent of cases (down from 80)	Partially met, ongoing	Partially met, ongoing
	Percentage of cases completed within timelines	Conclude inquiries within 12 months of referral in 70 percent of cases (down from 80)	Met, ongoing	Performance measurements confirmed
Meaningful legal precedents for the use of employers, service providers and Canadians	Number of judicial reviews overturned/upheld	Majority of decisions not judicially challenged or upheld	Met, ongoing	Performance measurements confirmed

Getting Results

As the custodian of a vital piece of Canada's human rights protection machinery, the Tribunal benefits Canadians by increasing the thread count in the fabric of Canadian society. In providing a forum where human rights complaints can be scrutinized and resolved, and by articulating findings and observations on important issues of discrimination in the form of formal decisions, the Tribunal gives effect to the principles enshrined in federal human rights legislation. 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.

Although the Tribunal (including its predecessors) has been part of the human rights landscape in Canada for decades, Tribunal decisions have not always enjoyed the authority they do today. Until recently, allegations of institutional bias and lack of independence undermined the effectiveness of Canada's human rights enforcement machinery, and requests for judicial reviews of Tribunal decisions and rulings were commonplace. For example, all eight of the Tribunal's written decisions issued in 1998 were challenged.

Statutory changes in 1998 raised the stature and perceived independence of the Tribunal, resulting in fewer challenges to Tribunal decisions and greater approbation by the Federal Court when Tribunal decisions are appealed. Ultimately, this acceptance benefits both complainants and respondents, since Tribunal decisions are increasingly perceived as definitive and the parties can get on with their lives. Written decisions become part of the public record. As well as specifying whether a respondent's actions have run afoul of the Act, Tribunal decisions provide guidance, where appropriate, on how to bring policies and practices into line with the legislation to prevent discrimination in future. Such explanations benefit not only the parties involved, but also all employers and service providers and their employees and clients. It is therefore an expected (and sought after) result of Tribunal decisions that they will be accepted by the parties involved and, if judicially challenged, upheld by the reviewing court. Such acceptance benefits all of society since it expedites justice and reduces the cost of protracted appeals.

That's why the Tribunal monitors the number of judicial reviews of its decisions and the proportion of these that uphold or overturn Tribunal decisions. As the table below illustrates, a majority of the Tribunal's 61 decisions issued in the past four years have remained unchallenged, and only six have been overturned.

Judicial Reviews

	2005	2006	2007	2008	TOTAL
Cases referred	99	70	82	103	354
Decisions rendered	11	13	20	17	61
Upheld	1	0	3	0	4
Overturned	1	3	2	0	6
Judicial review withdrawn or struck for delay	0	1	0	2	3
Judicial review pending	0	0	2	2	4
Total challenges	2	4	7	4	17

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

What has been a challenge in recent years is the effort required to provide speedy justice to complainants. The complexity of cases, the vigorous advocacy at inquiries and the amount of time that Tribunal members must spend resolving pre-hearing issues continue to test the Tribunal's resourcefulness.

The Tribunal remains steadfast in its commitment to striving for the earliest possible disposition of cases. The Tribunal expects that, by helping the parties determine with greater precision which issues must be decided at hearing, active case management will continue to yield major process improvements by reducing the number of issues to be addressed at hearing.

The Tribunal is again this year pleased to report that it has avoided developing a case backlog. This success is largely attributable to an efficient case management process, introduced in 2005, and the success of its mediation program. In 2008, 77 percent of Tribunal-mediated complaints were settled without the need for hearing, compared with 73 percent in 2007, 88 percent in 2006, 87 percent in 2005 and 64 percent in each of 2003 and 2004. Combined with the business process improvements outlined above, the continued success of the Tribunal's mediation service has enabled the Tribunal to process larger numbers of complaints without the need for more financial resources.

At the end of 2008, 105 case files remained active, compared with 98 a year earlier, 100 in 2006 and 147 in 2005.

The Effects of Recent Tribunal Decisions on 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.

During fiscal year 2008–09, the Tribunal issued 19 final 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.

The following summaries of Tribunal decisions from 2008–09 illustrate the kinds of complaints brought before the Tribunal and how such cases affect all Canadians. Summaries of these and other Tribunal decisions rendered in calendar year 2008 can be found in the Tribunal's 2008 annual report.

Lavoie v. Treasury Board of Canada 2008 CHRT 27

The Treasury Board of Canada is the legal employer of Canada's 380,000 federal public servants. Its new Term Employment Policy enables employees to convert their status from temporary to permanent (term to indeterminate) once they have accumulated three years of employment in the federal public service. However, unpaid absences (leaves) longer than 60 days do not count toward the cumulative three-year period. The complainant alleged that the new policy discriminated against women since they, alone, take maternity leave and since they have been more likely than men to avail themselves of parental leave; both types of leave normally exceed 60 consecutive days. Thus it was harder for female employees than for males to accumulate the three years of service required for conversion to permanent employee status.

The Tribunal agreed that the effect of the policy was disproportionately felt by women. In rejecting the respondent's argument that the policy was necessary to give managers enough time to determine whether there was an ongoing need for the position in question, the Tribunal noted that absent incumbents were routinely replaced. It also observed that the policy did not exclude paid leaves from its cumulative service calculation, suggesting that attendance at the workplace was not always necessary to conducting the assessment. In substantiating the complaint, the Tribunal concluded that the respondent had not shown the flexibility and creativity necessary in this case, nor had it examined all the available options. The Tribunal ordered Treasury Board to amend its policies so that maternity and parental leaves counted as cumulative service.

Results for Canadians

Although federal government departments have been subject to the CHRA for three decades, they still sometimes adopt new policies that have the unintended effect of running afoul of the Act. The decision in Lavoie v. Treasury Board of Canada illustrates this point.

The Lavoie decision will affect thousands of female term employees in the federal public service. It also clearly elucidates how a seemingly innocuous staffing policy can render female participation in the public service workforce more precarious than that of men.

In particular, the Tribunal's analysis and rejection of the respondent's argument demonstrates that, in matters of human resource management, employers can still undertake accommodation measures without sacrificing flexibility and responsiveness.

Dennis v. Eskasoni Band Council 2008 CHRT 38

The complainant experienced persistent chronic pain in his head and neck following a serious car accident. After encountering difficult side-effects with the pain medication that his doctors had prescribed for him, he discovered that using marijuana helped to relax him and ease the pain in his shoulders and neck that was associated with "flare-ups" of his condition.

The complainant alleged that the respondent Band Council discriminated against him on the basis of his disability (drug dependency), contrary to section 7 of the CHRA, when the respondent refused to hire him as a deckhand on a fishing boat after he had failed a pre-employment drug screening test. The complainant also alleged that the respondent's drug screening policy was itself discriminatory within the meaning of section 10 of the CHRA.

The Tribunal concluded that the complainant had not established that he was a disabled person within the meaning of section 25 of the CHRA, which defines disability as including a "previous or existing dependence on alcohol or a drug." The Tribunal was of the opinion that while the evidence clearly showed that the complainant used marijuana and other drugs; he had not established that he was dependent on these drugs.

With regard to the complainant's claim that the respondent's drug policy was discriminatory toward a certain class of individuals (those who are dependent on drugs), the Tribunal agreed, finding that it clearly deprived that class of individuals of the opportunity to work as fishers. However, the Tribunal accepted the Band's Council’s evidence that this policy was a bona fide occupational requirement. Following the test laid out by the Supreme Court in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, the Tribunal determined that: i) the policy was rationally connected to the goal of preventing injuries and damage to property; ii) that the policy was adopted in good faith; iii) that the policy was necessary to the accomplishment of the purpose or goal. With regard to the third criterion, the Tribunal held that impairment of crews on boats put the safety of the entire crew at risk and that the drug and alcohol screening process was thus both necessary and rational. The Tribunal also held that accommodating drug-dependent individuals would impose an undue economic hardship on the respondent. The complaint was dismissed.

Results for Canadians

The issue of drug testing in the workplace continues to be the subject of appellate judicial contemplation across Canada. The Ontario Court of Appeal released a decision on the issue in May 2009, and in 2008 the Supreme Court of Canada denied leave to appeal a workplace drug-testing decision rendered by the Alberta Court of Appeal.

The issue of drug testing in the workplace continues to be the subject of appellate judicial contemplation across Canada. The Ontario Court of Appeal released a decision on the issue in May 2009, and in 2008 the Supreme Court of Canada denied leave to appeal a workplace drug-testing decision rendered by the Alberta Court of Appeal. The Dennis decision is the Tribunal's latest contribution to this dynamically evolving area of the law. Of particular interest is the Tribunal's finding that the employer's drug testing policy did in fact comply with the CHRA, in that the respondent proved that changing its practices to further accommodate the needs of individuals who are disabled by drug dependency would have caused it undue hardship in terms of both safety and cost. Such a decision provides a measure of guidance to employers wishing to assess the legality of their own drug testing policies.

Morten v. Air Canada 2009 CHRT 3

The complainant, who was deaf and had very limited vision, attempted to book a flight with the respondent airline. The respondent refused to book the flight unless the complainant agreed to travel with an attendant. The complainant alleged that the respondent's policy constituted discrimination in the provision of services on the ground of disability.

The Tribunal held that the complainant had established a prima facie case of discrimination. The evidence was clear that the respondent imposed, as a condition of providing a service to the complainant, the requirement that he travel with an attendant. This requirement was directly related to the complainant's disability, and affected his freedom to travel.

The question then became whether the respondent had established a bona fide justification for the prima facie discrimination. After considering the evidence, the Tribunal concluded that the respondent's blanket rule that deaf and blind people must travel with an attendant did not accommodate individuals such as the complainant to the point of undue hardship. Specifically, the rule did not recognize differing degrees of auditory or visual impairment; moreover, the rule did not allow for individual assessment of disabled passengers. The complaint was substantiated.

In considering the appropriate form of redress, the Tribunal reviewed American regulations regarding air travel by disabled passengers, as well as a ruling by the U.S. Department of Transportation on the subject. The American authorities strongly suggested that greater accommodation could be offered by the respondent to the complainant. They also suggested that individuals with both visual and hearing impairments coped better in emergencies than was asserted by the respondent.

The Tribunal noted that the respondent would not accept the degree of risk posed by allowing the complainant to fly unaccompanied yet tolerated the comparable or higher risk posed by some other unaccompanied passengers, such as obese individuals, persons with mobility impairments, pregnant women or individuals who require supplemental oxygen during a flight.

The Tribunal directed the respondent to work with the Canadian Human Rights Commission and the complainant to develop an attendant policy that took into account the communication strategies utilized by people like the complainant to communicate in an emergency, the inherent risk posed by passengers with compromised mobility who are currently allowed to fly unaccompanied, and the fact that in emergencies, many able-bodied passengers are unable to receive, process and act on safety-related emergency instructions. This decision is the subject of two applications for judicial review.

Results for Canadians

Tribunal jurisprudence on the question of discrimination based on disability has to date dealt mostly with the employment relationship and the workplace. The Morten decision brings attention to the issue of access to transportation services by persons with disabilities.

In particular, the decision provides insightful analysis of the balancing required between a disabled individual's legitimate interest in autonomy—including the voluntary assumption of risk—and a transportation service provider's equally legitimate interest in assuring the safety of the travelling public.

The decision also suggests a means of reconciling the two overlapping regulatory regimes governing the accessibility of transportation systems, namely the CHRA, which deals with access by disabled persons to federally regulated services in general, and the Canada Transportation Act, which deals with obstacles in the transportation system to the movement of persons with disabilities.

Dreaver v. Pankiw 2009 CHRT 8

The respondent was a federal member of Parliament who distributed a series of printed brochures to his constituents wherein he made a number of statements regarding Aboriginal persons in the context of the criminal justice system and the operations of government. The brochures exhorted the reader to respond to these statements.

The complainants, who were constituents of the respondent, alleged that the distribution of the brochures constituted a discriminatory practice on the ground of race. In particular, the respondent was alleged to have differentiated adversely in the provision of public services, harassed individuals in the provision of public services, and published representations that expressed discrimination or incited others to discriminate.

The Tribunal first examined the question of whether the distribution of the brochures constituted a "service" within the meaning of the CHRA. The Tribunal found that the brochures were politically partisan documents ultimately designed to influence voter behaviour in the democratic process, to the benefit of the respondent. The brochures provided the respondent with a means to make his political views known and obtain support for his position. As such, the prime beneficiary of a brochure was not the recipient, but the sender. Therefore the distribution of the brochure to the respondent's constituents was not a "service" for the purposes of the Act.

Even if it were a service, the production of the brochure did not create a public relationship between the service provider and the service user: the public was not invited to participate in the creation of the brochures (and thus, the development of their content). The part of the process that most clearly gave rise to the respondent's relationship with the public was the distribution of the brochures, which occurred without discrimination in the sense that everyone was provided with a brochure regardless of race.

Moreover, the Tribunal found that the distribution of the brochures did not amount to the publication of a discriminatory "representation" within the meaning of the Act: the word representation, in the context of the statutory provision in which it was found, was intended to refer to an image, likeness or reproduction, and could not be interpreted to include statements or articles, such as the contents of the impugned brochures.

Given its finding that the brochures were not services, the Tribunal could not accept the allegation that in distributing the brochures, the respondent had engaged in harassment in the provision of services. The complaint was dismissed, and is currently the subject of a judicial review application.

Results for Canadians

Tribunal decisions that interpret the provisions of the CHRA can provide valuable assistance in helping Canadians understand the true meaning of the statute and how it applies to their lives and activities.

The Dreaver decision is a good example. Prior to Dreaver, section 12 of the CHRA had received very little adjudicative consideration, even though it has been in force for 20 years. Thanks to this decision, however, Canadians now have valuable indicators on the extent to which the CHRA applies to discriminatory "representations." This statutory term, which in theory is quite broad in its possible range of meanings, has been given a working definition that will allow individuals and groups to conduct their affairs with greater certainty as to the legal consequences.

Similarly, Canadians will benefit from the refinements offered by the Tribunal in its interpretation of the term "services" customarily available to the general public. Case-by-case interpretations of key statutory wording by the Tribunal add certainty to the law, without sacrificing adaptability to as yet unforeseen future situations.

Judicial Review of Tribunal Decisions

More than two thirds of Tribunal decisions in 2008–09 were not the subject of judicial review proceedings. As noted elsewhere in this report, the downward trend in judicial reviews can be seen as an indicator of a greater acceptance of the Tribunal's interpretation of the CHRA by the parties and the reviewing courts.

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