Open letter to the Senate Standing Committee on Human Rights in the context of the Committee’s study of Anti-Black Racism, Sexism and Systemic Discrimination in the Canadian Human Rights Commission

Dear Senator Ataullahjan:

On behalf of the Canadian Human Rights Commission (Commission), and further to our May 8, 2023 appearance before the Senate Standing Committee on Human Rights in the context of the Committee’s study of Anti-Black Racism, Sexism and Systemic Discrimination in the Canadian Human Rights Commission, we write to provide the Committee with more detailed information about the Commission’s ongoing, concrete efforts to bring about measurable change and restore trust.

As previously indicated, the Commission has accepted the Treasury Board of Canada Secretariat’s (TBS) response to the three unions’^{Footnote 1} policy grievances,^{Footnote 2} which states that the Commission breached the “no discrimination” provisions of their collective agreements.^{Footnote 3} The Commission deeply regrets and unreservedly apologizes for all instances in which the Commission as an employer or service provider fell short of its obligations. We are committed to ensuring that our employees have a safe, healthy and respectful environment and that anyone who comes to the Commission with a complaint can trust that it will be dealt with fairly and with dignity.

As Canada’s national human rights institution, the Commission has long acknowledged that systemic anti-Black racism is real and that it can manifest in any organization in Canada. We are not immune. It is up to all of us to uncover and reject all forms of systemic racism and discrimination. That is exactly what the Commission has done and will continue to do.

The Commission has taken significant Anti-Racist action to improve its workplace

The Commission’s ongoing, concrete actions to bring about measurable change are described in its Anti-Racism Action Plan (ARAP). Published two years ago, in January 2021, the plan specifically addresses the concerns raised in the letter of the nine employees, and is also the product of significant stakeholder consultations, union input, information from other employees, and the work of experts.

The ARAP includes nearly 50 actions^{Footnote 4} to improve our workplace, strengthen our complaints screening process and improve access to justice for Indigenous, Black and other racialized people. The Commission is committed to ongoing monitoring and assessment of its implementation of the ARAP. To that end, we have published two reports on the progress we have made on implementing the ARAP, one in June 2021, and the other in October 2022. These materials, as well as all the Commission documents I refer to in this submission, are publicly available through our website.

In response to Senator Pate’s request for copies of the ARAP, as well as the measures we have taken, I am pleased to provide copies of the ARAP and Progress Reports. Below, I highlight some of the concrete measures we have taken to bring about positive change. All the documents I refer to in this submission are on our website so the public can access them.

We have taken concrete actions to bring about meaningful change

To address concerns about racism and discrimination in the workplace, the Commission has taken numerous concrete measures to bring about meaningful change.

• In July, 2020, the Commission took immediate action when workplace issues were brought to management's attention. The Commission engaged independent third party investigators to conduct workplace investigations. The investigation found that disrespectful behaviour had occurred, and that Management had taken appropriate and timely corrective actions to address the conduct. Those found to have engaged in disrespectful behaviour no longer supervise employees.
• In the FaIl of 2020, at the suggestion of the nine employees who wrote the June 2020 letter, the Commission worked with an external, independent facilitator those employees had recommended, Arlene Huggins, to create a safe and confidential forum for Black, racialized, and Indigenous employees to share their experiences at the Commission. All Commission employees were invited to participate, including those who wrote the letter that underpinned the unions’ policy grievances.^{Footnote 5} Ms. Huggins’ findings, as well as concerns and recommendations raised by employees and unions, all informed the development of our Anti-Racism Action Plan.
• We provided Commission-wide training to increase awareness and discussion around topics such as anti-Black racism, the impacts of systemic racism, colonialism, and trauma.
• We enhanced psychological supports for any employee who experiences stress, trauma, or other mental health issues related to the impact of racism and how it may manifest by hiring an experienced mental health professional, Verlyne Christensen, to provide mental health services directly to any of our staff who requested them. You can visit her web site at www.verlyne.com/ for further information.
• We established the Decolonization and Anti-Racism Committee (DACC), currently made up of 15 Black, Indigenous, and racialized (BIPOC) employees, to provide a forum for ongoing employee engagement, feedback and accountability related to all aspects of our work. Members are responsible for championing the views and perspectives of BIPOC employees, reviewing our policies, tools, and practices, and furthering our commitments to anti-racism, inclusion, equity and diversity. They also have their own objectives, such as furthering allyship throughout the organization.
• The Commission engaged external, objective experts through competitive processes to conduct an Employment Equity Audit and an Employment Systems Review as part of its legislative obligations under the Employment Equity Act.

The Commission has a diverse workforce and is committed to increasing that diversity

The Employment Equity Audit found that the Commission continues to have a strong representation of members from the four designated groups when compared to their availability in the Canadian workforce. The Commission consistently meets or exceeds representation targets under the Employment Equity Act and the data below shows that we continue to improve our diversity. However, we know the Commission can do better and are committed to doing so.

• Treasury Board’s new publicly available disaggregated information indicates that, in 2020, 3.9% of employees at the Commission were Black compared with 3.5% in the overall federal public service. In 2021, Black employees made up 5% of the Commission’s workforce as compared to 3.8% in the public service.
• In addition, 35% of the Commission’s executive team are Black, racialized or Indigenous. And the representation of Black employees in our executive increased from 6% in 2020 to 14% in 2022.
• Within the Policy, Research and International Relations Division, 50% of employees identify as being Black, Racialized or Indigenous and 36% identify as Black. This includes employees at the managerial level and senior advisor levels.
• Within the Complaints Services Branch, 23% of employees identify as being racialized, and 28% of those employees are Black. For Branch employees occupying human rights officer positions or roles related to intake and complaints, 19% identify as being racialized, and 4% of those employees are Black.
• Finally, six acting appointments of the 17 the Commission approved last year went to employees who identified as Black, Indigenous, or racialized. Self-identifying as a member of one of the four designated groups under the Employment Equity Act is voluntary. As Mr. Sharpe said during the hearing, there is a low uptake of selfidentification in the federal public service. As a result, we consider this data as the floor, not the ceiling, and efforts are continually made to increase representation throughout all levels of the organization.

As a result of all our work, anyone submitting a complainant to the Commission can be assured that their complaint will be assessed by diverse staff, who bring lived experiences and expertise to their work, and who receive training in how to best assess human rights complaints related to race, systemic racism and discrimination, unconscious bias, and trauma informed approaches.

The Commission has modernized the complaints process and transformed the assessment of race-based complaints

We began our anti-racism-work in 2018 by looking at how systemic racism can manifest itself in our organization as well as how it might be influencing our daily work and the services we provide to Canadians.

By 2020, we had much of this work underway. The Commission identified that we referred considerably fewer race-based complaints to the Canadian Human Rights Tribunal (the “Tribunal”) relative to complaints filed under other grounds of discrimination. In March, 2020, we met with community organizations representing racialized constituents to learn about ways we could improve the service and address their concerns. We used their feedback, as well as the suggestions of the nine Commission employees in their June 2020 letter, and those of the employees who spoke to Arleen Huggins, when we created the ARAP.

To address the rates at which race-based complaints were historically dismissed, we have implemented a range of concrete measures to modernize our screening processes.

• We hired a former vice-chair from the Human Rights Tribunal of Ontario, Mark Hart, who had written a number of important decisions on race, to revise our complaints screening tools in order to ensure that the necessary evidence, both individual and systemic, is gathered and considered in all complaints, including those alleging racism. His final report, Strengthening the Commission's Handling of Race-Based Cases, is publicly available on our website.
• We made significant changes to our complaints assessment tools based on Mark Hart’s Strengthening the Commission's Handling of Race-Based Cases report. This transformative report has equipped us with invaluable tools and approaches to detect the "subtle scent" of racism. All decision makers are required to receive his in-depth training course.
• We hired people who bring lived experiences and expertise to their work with a view to ensuring diversity within the complaints review branch.
• We provided anti-racism training to all complaints staff and senior management, including separate sessions on detecting the “subtle scent of racism” and how to take a trauma informed approach to handling complaints.
• We updated our Complaint Rules to reflect best practices for accessibility and inclusion.
• We expanded our Equitable Access Unit to support parties and Commission staff in improving accessibility of the complaints system.
• We struck a Network for Advancing Racial Equality to engage Black and racialized stakeholders in our work.
• We began to collect disaggregated data to ensure that we have the data we need to be able to track case outcomes to ensure unconscious bias does not impact any complaints, including those made by Black and racialized people.^{Footnote 6}

As a result of all our work, anyone submitting a complainant to the Commission can be assured that their complaint will be assessed by diverse staff, who bring lived experiences and expertise to their work, and who receive training in how to best assess human rights complaints related to race, systemic racism and discrimination, unconscious bias, and trauma informed approaches.

The Commission owes many of its improvements in the complaints process to the invaluable feedback it received from stakeholders representing racialized people in Canada, as well as our employees and the signatories of the June 2020 letter, and we thank them for their collaboration.

The Commission’s actions have resulted in fewer dismissals and more Tribunal referrals of race-based complaints

We are pleased to report^{Footnote 7} that the actions the Commission has taken have resulted in a measurable increase in referrals to Tribunal for discrimination complaints citing any of the three grounds of race, colour, and national or ethnic origin. The Commission accepted 763 new complaints in 2022.

• Of these, 8% were filed by complainants who identified as being Black.
• Since 2018, there has been a significant increase in the percentage of complaints referred to the Tribunal that cite race, colour or national or ethnic origin as the ground of discrimination – from 6% in 2018 to 21% in 2022. The volume of referrals based on these grounds is now on par with referrals based on other grounds.
• There has also been a significant decrease in the percentage of such complaints that are dismissed – from 26% in 2018 to 9% in 2022.
• Most of the remaining complaints about race, colour, or national and ethnic origin – 66% – settle during mediation or conciliation. This is also on par with complaints based on other grounds.

There is more work to do: The Commission’s Anti-Racism work is ongoing

The ARAP is moving into its third year. Building on the progress we have made, the lessons we have learned and the feedback we have received, we will continue to press forward with antiracist organizational change. The Commission’s October 2022 Progress Report sets out the next steps we will pursue to maintain our sustained effort to effect anti-racist change. We have prioritized and taken significant steps to implement our ARAP. As we undertook these efforts, we became aware of additional steps we can take

The progress report presents the status of our work using one of three categories:

• 17.5% (7) of our actions are complete. These items include establishing an internal consultation committee (the DACC), identifying barriers (through consultant’s report), and asking Health Canada to identify counselors at the Employee Assistance Program who are experience with discrimination-related trauma.
• 30% (12) of our actions are integrated in our way of working. This means that, through the implementation of these actions, we have embedded the principles of antiracism, inclusion, diversity, equity and accessibility into our way of working. Two examples are using the accountability framework in complaints handling and using our checks and balances to ensure a single individual is not able to influence the outcome of a complaint.
• 52.5% (21) of our actions are in progress. This means that these actions are well underway, and we are working to achieve the full extent of change we are seeking.

Examples of work we will continue to do, based on the 21 actions that are in progress include:

• We will publish the Commission's 2023-26 Employment Equity Action Plan (EEAP) at the end of May 2023. The EEAP reflects the Employment Equity Audit and the Employment Systems Review, as well as consultations with the Decolonization and Anti-Racism Consultation Committee (DACC) and bargaining agents.
• We will analyze disaggregated data to identify continued barriers for Indigenous, Black and other racialized public servants, and other groups that face barriers in the workplace. This work is as important as it is urgent. It is time to close the gaps and eliminate the barriers that remain, ensuring the federal public service is truly representative of the people it serves.
• We will build on feedback collected within and following the first six months of the establishment of the Inclusion, Diversity, Equity, Accessibility and Anti-Racism (IDEA-AR) Unit within the offices of the Chief Commissioner and the Executive Director to ensure its composition is as strategic and practical as possible
• We will work in collaboration with the DACC to facilitate regular engagement between the DACC and the Commission's Executive Management Committee to strengthen relationships and to serve as an accountability measure to support the implementation of the ARAP.
• We will explore, with the DACC, ways to enable employees, bargaining agents and stakeholders to provide qualitative feedback to the Commission on the implementation of the ARAP
• We will require all members of Commission-led selection boards to successfully complete a course offered by the Canada School of Public Service on conducting an inclusive and bias-free hiring process
• We will launch the first phase of the Mentorship Plus Program, which provides leadership opportunities for high-potential employees occupying position s that feed into the executive cadre. We will also monitor and assess implementation based on indicators that were developed in consultation with the DACC, and we will roll out future phases of the Program, which will focus on the development and sponsorship of employees belonging to other under-represented groups.
• We will engage with employees to identify their learning needs, career goals and areas for improvement necessary for success in their current positions, as well as to explore opportunities for career advancement. The Commission will develop guidance to managers on engaging in career planning discussions with their staff.
• We will continue to support the leadership development of Indigenous, Black and other racialized employees by offering acting opportunities and supporting official language training.
• We will develop a learning roadmap to support existing and new staff, as well as Commissioners, in deepening their understanding of anti-racism, unconscious bias, and discrimination.

We welcome an independent review of our processes, as well as changes to the Canadian Human Rights Act and the Employment Equity Act to complement our efforts.

The Commission is committed to accountability and transparency

The Commission understands the need to be accountable to Canadians for meeting its commitments. We use the following methods:

• We report on our ARAP progress every year so the public can track our progress. Our first two reports were published in June 2021 and October 2022. We will publish a third in 2023.
• We regularly consult with employees, the Decolonization and Anti-Racism Consultation Committee, and our Network of Stakeholders for Advancing Racial Equality on the ARAP’s progress and implementation.
• Every Commission executive is accountable for implementing the ARAP, which is assessed in their yearly performance evaluations
• We have also engaged the ongoing services of an external consultant – Charles Smith, an expert in anti-racist organizational change – to provide us with advice and guidance in our work. Each month, he meets with the senior management team to discuss progress in implementing the plan, with a focus on measuring results and identifying further gaps

Specific to the complaints process, we have adopted an Accountability Framework that integrates the Values and Ethics Code for the Public Sector in each stage and function of the process. The framework’s purpose is to ensure that the necessary checks and balances are in place to avoid a situation where any one individual is able to influence the outcome of a complaint, and to allow for committees composed of employees with diverse lived experience to assess and triage complaints.

• The above employee committees are comprised of staff from three different branches of the Commission: Complaints Services, Policy, and Legal Services. These committees inhibit unconscious biases, ensure there is critical dialogue about every complaint, and create consistency in our screening approach and support to rights holders.
• There is also an overarching Complaints Support Committee (CSC) comprised of executive from the three Branches, where we address complaints involving complex policy and legal issues. Those on the CSC have diverse lived experience, and personally understand the need for a trauma-informed approach due to racism, sexism, religious intolerance, and other forms of harm.
• As set out in the 2022 Progress Report, we will continue to develop evaluation criteria to improve and strengthen the assessment of both employees’ work and executive performance with regard to the implementation of the ARAP. To ensure the robustness of those criteria, and to be sure they respond to the needs and expectations of the workforce, the Commission will engage with its internal Decolonization and Anti-Racism Consultation Committee, expert consultants and the stakeholder community to seek ideas, feedback and input.

The Federal Public Sector Labour Relations and Employment Board ensures the Commission is accountable to Canadians for our employees. We are committed to addressing fully and constructively the concerns raised by bargaining agents in the policy grievances through the Board’s mediation process. The Commission looks forward to working with the unions to explore parameters for an independent review of the workplace to understand where concerns have been resolved and where more change is needed.

In addition, the Federal Court, Federal Court of Appeal, and Supreme Court of Canada ensure the Commission is accountable to Canadians for screening human rights complaints.

And finally, we are accountable to Parliament through our Annual Reports.

“Direct Access” does not mean better access to justice

We heard the Senators pose a number of questions on the theme of access to justice and delay in the processing of human rights complaints. In particular, Senator Gerba asked whether the Commission has objectives for processing times for complaints, which we undertook to provide.

In response, the Commission’s service standards for processing complaints are provided here, and are publicly available on our website. Generally, a complaint should take just under two years (19 months) if there are no delays. This can vary from complaint to complaint, based on the complexity of the issues and the swiftness with which the parties respond to our requests for information.

We cannot speak to the time it takes for a file to go through the Canadian Human Rights Tribunal (Tribunal) process after the Commission refers it there. However, as noted above, it currently takes about two years for a complaint to move through the Commission’s system.^{Footnote 8}

Complainants who list race, colour, or national and ethnic origin as discriminatory grounds experience similar delays at the Commission, on average, as complaints based on other grounds.^{Footnote 9} Some files move considerably faster and some take longer to go through the Commission’s process. There are many reasons why this is the case. For example:

• 75% of complainants are self-represented;
• the Commission serves populations who may live in difficult conditions;
• complex objections are raised by Respondents;
• the need to carefully mitigate power imbalances between the parties; and
• the Commission has procedural fairness obligations to both parties.

The Commission’s processing time is significantly impacted by the limited resources available to manage a high volumes of complaints. The longest delays are when the file is waiting to be assigned to either an intake officer of a human rights officer. We only have resources to assign 25% of the files in our inventory at any given time, often less than that at intake if there is a large influx of complaints.

Direct access regimes experience delay and backlog

Chairperson Ataullahjan asked how the length of the federal process compares to the direct access model in British Columbia and Ontario. The data shows direct access alone does not ensure access to justice. We see this in British Columbia and Ontario as their backlogs grow.

According to the Tribunal Watch Ontario Statement of Concern dated January 2023, the Human Rights Tribunal of Ontario (HRTO) has a backlog of 9000 cases. As a result, Tribunal Watch Ontario cites concerns about long delays and unjustified early dismissals of applications without a full hearing.

There is also a concern that as backlogs increase, complaints of racism are disproportionately dismissed. For example, Law Times’ story on an access to justice study in Ontario said that between 2009 and 2017, the HRTO would issue between 150 and 300 Notices of Intent to Dismiss (NOID) individual human rights complaints. However, in 2021, the HRTO issued 989 NOIDs – which is one quarter of the applications they received that year. The story also said these attempts to dismiss complaints disproportionately affected complaints based on race, colour, and citizenship.

In addition, the British Columbia Human Rights Tribunal’s 2021-22 Annual Report says the Tribunal has not been able to meet any of its service standards because of its significant backlog of cases. As a result, it says “[m]any parties must wait […] 4 ½ to 7 ½ years if there is a hearing.”^{Footnote 10} Similar problems plague the HRTO. In addition, the Tribunals Ontario 2021-2022 Annual Report documents the HRTO’s inability to meet any of its performance standards.

And finally, a May 2022 Tribunal Watch Ontario Statement of Concern about the HRTO said that, in 2021, most human rights complainants waited between 3 and 7 years after filing their complaints to receive a final decision. Similarly, the Tribunals Ontario 2021-2022 Annual Report documents the HRTO’s inability to meet any of its performance standards.

The Federal Model Offers Other Access to Justice Benefits

The Commission supports reforms that increase access to human rights justice in its fullest meaning. To this end, the Commission cautions that any reforms should be designed to ensure that the federal system does not lose its current advantages while enhancements are made. the Alberta Civil Liberties Research Centre cautioned in its 2019 report titled Alberta Human Rights Act: Opportunities for Procedural and Policy Reform that “direct access has the potential to create as many problems as it cures.”^{Footnote 11}

In addition to timely decisions, access to justice means having a system that gives people meaningful opportunities to participate and provides them with support. One of the main benefits of the screening model outlined in the Canadian Human Rights Act (the Act) is that it permits the Commission to provide complainants with necessary supports.

For example, the Commission takes a “no wrong door” approach, particularly in the precomplaint stage, where thousands of Canadians receive valuable information about how best to resolve their human rights concerns. People also frequently contact the Commission about issues that fall outside our jurisdiction (legal authority). For example, Commission staff fielded 5,000 inquiries last year from people who contacted the Commission for human rights information, including to see if they had the grounds to file a complaint. The majority of them were helped without needing to file a complaint. This part of our role serves access to justice and often goes unnoticed in the public domain.

When individuals do file complaints, intake workers help them frame their issues in accordance with the requirements of the Act. Once a complaint has been filed, human rights officers assist in identifying the types of information or evidence needed to evaluate a claim of discrimination, and conducting initial assessments of the issues. Mediators work closely with parties to empower them to reach speedy resolutions of their own design while also looking out for the public interest. And, where the Commission refers a case to the Tribunal, Commission lawyers participate in the hearing on behalf of the public interest, taking positions on the human rights issues in dispute and introducing expert evidence to advocate for systemic remedies. All of these measures lessen the burden on complainants who are often without legal representation.

Another advantage of the current model is that it allows the Commission to identify systemic issues that individual Complainants may not have raised.

The Commission has developed an efficient triage model for every complaint that is filed. We prioritize complaints for a number of reasons including when the alleged victim is in vulnerable circumstances and where the allegations may impact a large number of alleged victims.

Prioritized files generally move faster through the Commission process; extra support may be provided to the complainant and additional legal or policy support is provided internally to help assess the file effectively and efficiently. In 2022-23, investigations of discrimination allegations took 5.2 months for prioritized complaints.

Ultimately, it is for Parliament to decide whether to amend the Act to provide for direct access to the Tribunal. Before such dramatic changes are made, a comprehensive study of this issue would be needed. The current federal model has significant merits that must be considered. There is also no reason to be limited by the existing two models when different approaches are possible, including other hybrid models and/or the creation of a new position like a Black Equity Commissioner.

Conclusion

Public confidence is fundamental to the Commission’s role and we will continue to do everything necessary to ensure that all Canadians can trust in the Commission to conduct its work with integrity and accountability. To fulfill our mandate, it is critical that the Commission demonstrate to Canadians that we are working to uncover and reject all forms of racism and discrimination – both as an employer and human rights institution. No Canadian should have any doubt that the Commission will handle a complaint they submit to the Commission fairly.

The Commission is grateful to everyone who has worked with such dedication over the last number of years to develop, implement, and track the impacts of the above actions. We recognize and value the emotional effort as well as the invaluable expertise of all who dedicate themselves to this work. In particular, the Commission owes a deep debt of gratitude to the employees and executives with lived experience of racism who have committed themselves to contributing to anti-racist organization change from within the Commission.

I do hope this information is helpful to Committee members in the context of this study. The Canadian Human Rights Commission remains available and willing to support the Committee in its endeavour.

Yours sincerely,
Charlotte-Anne Malischewski
Interim Chief Commissioner
and Chief Executive Officer

c.c.: Mr. Sébastien Payet, Clerk
Standing Senate Committee on Human Rights
enc. Appendix A – list of materials