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This year the validity and purpose of human rights institutions were called into question in a highly polarized debate that pitted a single provision of the Canadian Human Rights Act (CHRA) against the constitutional right to freedom of speech. Section 13 of the CHRA prohibits telecommunications or internet messages that are likely to promote hatred or contempt of minority groups. The narrow focus of this debate has obscured the important protections afforded by the CHRA beyond s. 13 and the immense benefits that all Canadians enjoy precisely because of human rights statutes.
The Government of Canada has set a goal to make Canada a diverse society that promotes linguistic duality and social inclusion. This is a tall order, achieved neither by magisterial edict nor by wishful thinking. The existence of federal and provincial human rights acts, commissions and tribunals, however, demonstrates our commitment to this lofty agenda.
As the custodian of a vital piece of Canada’s human rights protection machinery, the Canadian Human Rights Tribunal helps to define equality and normalize diversity. Through its written decisions of the past three decades it has helped diversify the federally regulated workplace and informed the jurisprudence that affects Canadian society generally in such areas as pay equity, discrimination and harassment on the basis of sex or sexual orientation, and the duty to accommodate persons with disabilities. Although the Tribunal does not promote human rights (that is the job of the Canadian Human Rights Commission), it does advance the aims of the CHRA by providing a forum where human rights complaints can be scrutinized and resolved and by making the hard judgment calls that transport the Act from the statute books to the streets.
J. Grant Sinclair
I submit for tabling in Parliament, the 2007–08 Departmental Performance Report for the Canadian Human Rights Tribunal.
This document has been prepared based on the reporting principles contained in the Guide for the Preparation of Part III of the 2007–2008 Estimates: Reports on Plans and Priorities and Departmental Performance Reports:
Name: J. Grant Sinclair
Title: Chairperson, Canadian Human Right Tribunal
Reason for Existence
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 contravene 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 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.
The Tribunal’s mission is to provide Canadians with a fair and efficient process of inquiry and determination of complaints of discrimination against federally regulated employers and service providers. The CHRA prohibits employment-related discrimination, including harassment, and prohibits discrimination in the provision of services regulated by federal jurisdiction. In 1996 the Tribunal’s mandate was expanded to include the adjudication of complaints under the Employment Equity Act. The statute requires all federal government departments, as well as federally regulated public sector employers with more than 100 employees, to maintain a workforce that reflects the labour force availability of visible minorities, women, indigenous people and persons with disabilities.
For more information on the Tribunal’s organization, operations and members, see About the CHRT on the Tribunal website at www.chrt-tcdp.gc.ca.
|Planned spending||Total authorities||Actual spending|
|Strategic outcome: Individuals have equal access, as determined by the Canadian Human Rights Act (CHRA) and the Employment Equity Act (EEA), to the opportunities that exist in Canadian society through the fair and equitable adjudication of human rights and employment equity cases that are brought before the Canadian Human Rights Tribunal.|
|Alignment to Government of Canada outcomes: a diverse society that promotes linguistic duality and social inclusion|
|Program activity: Public hearings under the Canadian Human Rights Act|
|Description: Inquire into complaints of discrimination to decide if particular practices have contravened the Canadian Human Rights Act|
|Program activity: Review directions given under the Employment Equity Act|
|Description: Conduct hearings into requests from employers to review decisions issued to them by the Canadian Human Rights Commission or into applications from the Commission to confirm directions given to employers.|
|Priority (all ongoing)||Expected result||Performance status||Planned spending||Actual spending|
|Monitor Tribunal inquiry performance targets.||
Partially met, ongoing
|Undertake a Management Accountability Framework assessment.||Modern public service management that fully supports accountability and results for Canadians||Met, ongoing||$15,000||N/A|
|Align the Tribunal’s records management system and platform with government information and technology management policies.||
The Tribunal’s information classification and retrieval systems, as well as its supporting technology platform, sustain business delivery improvement, legal and government policy compliance, citizen access, and accountability by March 2008
|Partially met, ongoing||$65,000||$120,750|
The tools used to assess and report on Tribunal activities, results, outputs and outcomes have evolved in tandem with public service modernization initiatives of the past decade. A new Management Resources and Results Structure and Program Activity Architecture were approved by the Treasury Board in May 2007.
These tools (MRRS and PAA) had not been finalized when the Tribunal prepared its 2007–08 Report on Plans and Priorities (RPP). Like the RPP on which it is based, the current DPR speaks to three management priorities, all of which address the systems (i.e., management and oversight services, human resources management services, information technology services, and information management services) that underpin the Tribunal’s ability to execute its primary program, namely conducting inquiries into complaints referred to it by the Canadian Human Rights Commission. The summary table above reports exclusively on results relating to the three priorities identified in the 2007–08 RPP. However, the discussion that follows (as well as the analysis pursued in Section II) speaks more broadly to the expected and actual results of the Tribunal’s principal program activity—the hearing and resolution of complaints under either act.
The Tribunal is a quasi-judicial body of first instance (i.e., it is the first “court” that passes judgment on the validity of a complaint of discrimination brought by a complainant.) However, even before a complaint is referred to the Tribunal, it is investigated by the Canadian Human Rights Commission, which screens all complaints, investigates them as necessary, and dismisses or resolves the vast majority of them. Once a case is referred by the Commission, the Tribunal has no authority to return it. Thus the size of the Tribunal’s caseload—and, therefore, its ability to meet targeted timelines for case processing and decision writing—is greatly influenced by the volume of cases referred in any year, or, more precisely, over any three-year period, since inquiries into complaints may extend, for reasons principally driven by the parties, for more than a year from their referral date.
The Tribunal is funded by annual appropriations from Parliament through a program expenditures vote to cover the cost of hearings, mediations and administrative operating expenditures (regardless of the number of cases referred by the Commission). Actual spending for 2007–08 was $4.2 million. Over the last decade, funding for Tribunal hearings has remained relatively stable even as its caseload fluctuated widely.
The Tribunal hears cases referred by the Canadian Human Rights Commission, so the number of cases referred annually is unpredictable. Because the Commission dismisses or resolves about 90 percent of the cases that come before it, the Tribunal’s cases are exceptional; they typically involve complex legal questions, new human rights issues or conflicting evidence that needs to be decided in a more formal testimonial environment (i.e., quasi-judicial forum).
Moreover, since 2002 the Commission no longer participates in all of the cases referred to the Tribunal; complainants who once relied on Commission counsel to help guide their case must now proceed on their own. For the Tribunal, inquiries where complainants are unrepresented require considerably more time and resources to process. The filing of documents with the Tribunal is routinely delayed, additional case management attention is required, and the hearings themselves generally move much more slowly.
To offset these challenges, the Tribunal reinstated its mediation services in 2003, streamlined its operating procedures to meet the needs of unrepresented parties, and adopted an aggressive case management approach that actively monitors progress on every case and keeps the complaint process moving unimpeded.
Meanwhile, ongoing pressure to contribute effectively in horizontal government initiatives such as public service modernization is also straining the Tribunal’s resources. To ease this burden, the Tribunal has availed itself of new technologies and has actually sought out and participated, wherever possible, in interdepartmental collaborations.
This year the Tribunal sought to determine whether three of its inquiry performance targets were useful and realistic. These targets, introduced by the Tribunal in 2003, sought to establish goals for the timeliest and most effective inquiry process possible:
Case statistics maintained manually and generated from the automated case management system indicate that all three targets proved elusive in 2007–08. None of the year’s hearings began within the desired time, due entirely to the lack of readiness of the parties. So pervasive was this problem that the Tribunal issued its first ever Practice Note found on the Tribunal’s website at www.chrt-tcdp.gc.ca under About the CHRT – Tribunal Rules and Procedures, stressing the importance of timely hearings and decisions. The note, addressed both to the parties and to Tribunal members, urged all to be vigilant and conscientious in helping to expedite the inquiry process as expected by the Canadian Human Rights Act.
Meanwhile, of the 19 decisions it rendered last fiscal year,2 the Tribunal issued 4 decisions within four and a half months of the close of the hearing (instead of the sought-after target of 17, or 90 percent, within four months of the close of hearings), but none of the 36 cases disposed of this year were concluded within the targeted 12-month timeline.
The volume of active cases, the increasing complexity of the complaints referred and the absence of legal representation for many complainants were again the main factors impeding the Tribunal from meeting its targets. Nevertheless, the resolution of cases was considerably expedited by active case management by the Tribunal, expert mediation services by Tribunal members and an efficient scheduling system to ensure that hearings occur at the earliest availability of the parties.
The Tribunal implemented an active case management system in 2005 to help parties prepare their cases more effectively and to alert Tribunal members to obstacles that are likely to delay a hearing process but could be resolved during the pre-hearing phase of an inquiry. Such issues are becoming increasingly common and they routinely delay the inquiry process if not identified and resolved early on. Anecdotal evidence suggests that early intervention by a Tribunal member in resolving pre-hearing issues has helped prevent cases from lingering unduly. The numbers also bear this out; despite a dramatic spike in case referrals between 2003 and 2005, only one pre-2005 complaint remained outstanding at the end of March 2008.
Meanwhile, given that the generally accepted service standard for rendering decisions in the judicial sphere is six months, the Tribunal has decided to slightly extend its own target for decision writing. It will now aim to deliver a decision within four months of the close of hearing in 80 percent of cases, rather than the previously targeted 90 percent of cases.
The Tribunal’s two other time-related performance targets were also adjusted downward by 10 percent in each category for 2008–09.
These adjusted targets are reflected in the new PAA and MRRS in the 2008–09 Report on Plans and Priorities available on the Tribunal website at www.chrt-tcdp.gc.ca under Reports and Disclosures.
The results of the Treasury Board of Canada Secretariat assessment of the Tribunal against its Management Accountability Framework (MAF) were released in 2007–08. The Tribunal was commended for its largely strong or acceptable assessment ratings. This was deemed noteworthy for a small organization with limited resources, particularly given that it was the Tribunal’s first assessment against the MAF. The Tribunal has, nevertheless, continued to build on its areas of strength and has addressed both areas identified as “opportunities for improvement.”
In 2007–08, the Tribunal:
Tribunal personnel continued to participate in an advisory capacity to the Comptroller General of Canada, through the Small Agency Administrators Network (SAAN), to assist in the development and implementation of procedures for small departments and agencies (SDAs) to comply with the Treasury Board’s internal audit policy. The Tribunal has also begun the development of an audit plan, based on its risk management framework, which it expects to implement in 2008–09. As well, the Tribunal has taken the lead on the SAAN initiative to work with the central agencies and within the SDA community to find and develop opportunities for shared internal services.
In accordance with the Treasury Board’s Standard of Management of Information Technology Security (MITS), the Tribunal completed vulnerability and threat and risk assessments of its network infrastructure in 2007–08 and implemented new security technology and procedures. The Tribunal’s network infrastructure has now received MITS certification and accreditation; the Tribunal is planning to conduct an audit of its information technology system in 2008–09.
In 2007–08, the Tribunal:
To offset the limitations attributable to its tiny size—the Tribunal has a human resource complement of 26 full-time equivalents—Tribunal management continued to collaborate with its federal government counterparts in search of ways to share services. Close consultation with central agencies through the Community of Federal Agencies, the Small Agency Administrators Network and the Heads of Information Technology ensures that the Tribunal remains aligned with the government’s information technology and information management policies.
1 Based on the year’s performance and generally accepted industry standard, the Tribunal revised all these targets in the 2008–09 Program Activity Architecture.
2 The table on judicial reviews in Section II cites this figure as 20 because Tribunal statistics are aggregated on a calendar year basis.