A Tailored Approach to Cases: Triage
“Resolving discrimination . . . on a case-by-case basis puts human rights commissions in the position of stamping out brush fires when the urgency is in the incendiary potential of the whole forest.”4
As a public body, the Commission has an obligation to deliver solid public administration from both a resource utilization perspective and a justice perspective. Therefore, it requires a solid public administration and a complaint process which is timely and efficient. After analyzing its role, the Commission has concluded that the public interest requires that human rights bodies be able to put the greatest resources into those cases which will have the greatest human rights impact.
Key Questions: How has your organization been affected by the application of these factors? Which of these 10 factors do you see as priority? Are there other criteria which the Commission should consider for defining high-priority and high-impact human rights cases? |
The Commission has identified 10 factors to allow it to do this:
- whether the complaint raises broad-based policy or systemic issues;
- whether the complaint addresses a pressing public policy concern as identified by the Commission;
- whether the complaint raises a new point of law, will settle one that remains in doubt or change legislation, policies or programs;
- whether the complaint will significantly advance the purposes of the Act;
- the degree of factual, technical or legal complexity the case entails;
- the impact on the parties;
- the potential remedy;
- whether credibility is a key issue;
- whether the evidence on the record is sufficient; and
- the similarity of facts, issues or grounds with other complaints.
These factors enable Commission staff to identify the most appropriate approach to deal with a particular case.
A Tailored Approach to Cases: Proposed Legislative Change
Key Questions: What impact would these proposed legislative changes have on your operations or mandate? Are there other legislative amendments which should be considered which would further advance the Commission’s goals of efficiency and effectiveness? How will the proposed legislative amendments affect you? |
The Commission interprets its Act to allow it discretion, consistent with standards of procedural fairness, to triage – or sort–cases. Some legislative or regulatory amendments to introduce further procedural flexibility include:
- legislative amendments to allow the Commission to refuse to deal with a complaint where it does not advance the purposes of the Act;
- legislative or regulatory changes to confirm more flexible investigation procedures, power to enter premises and compel witnesses; and
- enforceable time limits for various stages of case management.
Again, these are not exhaustive proposals and will be further developed through discussions with stakeholders.
The Canadian Human Rights Tribunal - Possibilities for Reform and the Problem with Direct Access
Key question: What role should the Tribunal and the Commission play in a reformed complaints system? Are there other ways by which the Tribunal could become more accessible? |
It has been recognized that the Commission’s compliance and education functions had been given short shrift over the years. The Review Panel proposed a system of direct access, where the Commission’s complaints-handling function would be transferred to the Tribunal, leaving the Commission free to undertake information and policy work.
The Commission sees difficulties with the direct access model. In many instances, the more litigious approach at Tribunal can drive parties farther apart, rather than bringing them to a solution. The time it takes to bring a complaint from initial filing to final decision at Tribunal can be both lengthy and costly – a fact which raises both efficiency and justice concerns. The remedies needed to address systemic issues cannot always be easily arrived at through the Tribunal process. In other words, although there will always be a need for the Tribunal in a human rights system, not all human rights complaints can be best resolved through the Tribunal. Many types of complaints are better resolved earlier and through other means.
Even under the current system, there are elements of the Tribunal process that, in the Commission’s view, need reform in order to better serve the public interest. The Tribunal process has become increasingly formal, cumbersome and costly through the years. As a result, many cases which are relatively straightforward become protracted over several days or weeks, frequently over a period of months. It is important that the Tribunal consider more effective and efficient means of conducting its inquiries as is contemplated by the legislation.
This raises justice concerns as well as efficiency concerns. The more complex the procedures, the higher the cost to the parties and to the taxpayer. For instance, a complaint which is resolved through alternative dispute resolution at the Commission costs roughly $4,000. A case which proceeds all the way to the Tribunal likely costs close to $100,000, including costs to the Commission, to the Tribunal and to the parties involved. In terms of delivering timely and fair justice, and in terms of ensuring an affordable and therefore sustainable system, the Tribunal is not always the best approach to resolving human rights complaints.
Parliament may wish to consider amendments to the legislation to make the Tribunal more accessible. These could include allowing for greater use of non-adversarial procedures already in place in other administrative tribunals, such as case streaming, expedited procedures and use of technology. Parliament might also consider taking up some form of the proposal made by the Federal Review Panel that legal assistance or duty counsel be made available at Tribunal. The Canadian Human Rights Commission has concluded an administrative Memorandum of Understanding with the Tribunal to discuss possible improvements to procedures in both bodies.
4 Abella Report