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

The Honourable Salma Ataullahjan, Senator
Chair, Senate Standing Committee on Human Rights
The Senate
Ottawa, Ontario
K1A 0A4

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
href="/sites/default/files/documents/anti-racism-action-plan-draft.pdf">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 actionsFootnote 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
data-entity-type="node" data-entity-uuid="9eb6314f-5f89-4ee6-bf0a-ac6702d06380"
data-entity-substitution="canonical">June 2021, and the other in
data-entity-uuid="3716165f-5931-40e1-a613-ac1acbce155d" data-entity-substitution="canonical">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
    href="/sites/default/files/documents/Final%20Audit%20Report_Audit%20of%20EEA_Mar.26_revised.pdf">Employment
    Equity Audit     and an
    data-entity-uuid="2bd6442a-3f12-44a1-aaff-07e9bc95fb7a" data-entity-substitution="canonical">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
    href="https://laws-lois.justice.gc.ca/eng/acts/e-5.401/">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
data-entity-substitution="canonical">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.

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 reportFootnote 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

data-entity-substitution="canonical">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
href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" rel="external">Canadian Human Rights Act and the
href="https://laws-lois.justice.gc.ca/eng/acts/e-5.401/" rel="external">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
    data-entity-substitution="canonical">June 2021     and
    data-entity-uuid="3716165f-5931-40e1-a613-ac1acbce155d" data-entity-substitution="canonical">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
href="https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=25049" rel="external">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,
href="https://www.fca-caf.gc.ca/fca-caf_eng.html" rel="external">Federal Court of Appeal, and
href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" rel="external">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
data-entity-uuid="4451929d-f861-43b2-8e70-f76903c84a02" data-entity-substitution="canonical">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
href="https://tribunalwatch.ca/wp-content/uploads/2023/01/The-Human-Rights-Tribunal-What-Needs-to-Happpen.pdf"
rel="external">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
href="https://www.lawtimesnews.com/practice-areas/human-rights/access-to-justice-study-shows-increase-in-dismissal-of-race-based-cases-by-the-human-rights-tribunal/367100"
rel="external">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
href="http://www.bchrt.bc.ca/shareddocs/annual_reports/2021-2022.pdf" rel="external">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
href="https://tribunalsontario.ca/documents/TO/Tribunals_Ontario_2021-2022_Annual_Report.pdf"
rel="external">2021-2022 Annual Report documents the HRTO's inability to meet any of its performance
standards.

And finally, a May 2022 Tribunal Watch Ontario
href="https://tribunalwatch.ca/wp-content/uploads/2022/05/Statement-of-Concern-about-the-HRTO-May-2022.pdf"
rel="external">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
href="https://tribunalsontario.ca/documents/TO/Tribunals_Ontario_2021-2022_Annual_Report.pdf"
rel="external">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
href="https://static1.squarespace.com/static/511bd4e0e4b0cecdc77b114b/t/5db768b452900a3f2dc11f5e/1572300988972/AHRA+Project+-+Final+version.pdf"
rel="external">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
href="https://laws-lois.justice.gc.ca/PDF/H-6.pdf" rel="external">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
rel="external">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

Did you find what you were looking for?Yes No

Did you find what you were looking for?

Yes No