Amending the Canadian Human Rights Act

Submission to the Canadian Human Rights Act Review Panel

October, 1999

Researchers Lana Kerzner and David Baker

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TABLE OF CONTENTS

I. Council of Canadians with Disabilities (CCD)

II. Introduction

III. Canadian Human Rights: Context and Purpose

IV. Major Problems with Current System

V. Issues and Recommendations

A. Substantive Issues

Purpose Clause

Grounds

Discrimination

Defenses

B. Process

Models for Addressing Discrimination

Catch and Release

Enforcement and Preventative Activities of the Commission

Remedies, Settlement and Judicial Review

VI. Conclusion

List of Appendices

I Council of Canadians with Disabilities (CCD)

The CCD is Canada's national cross-disability organization. Members include the major provincial umbrella organizations as well as the major national organizations of persons with disabilities.

CCD's involvement in human rights and the Canadian Charter of Rights and Freedoms has been long standing. It has played a leading role in consultations with government on Constitutional and human rights reform, up to and including the most recent round of amendments to the Canadian Human Rights Act ("the Act").

Before the courts, CCD has been an intervener in a long line of equality cases, including O'Malley, Bhinder, Andrews, Eldridge, Eaton, Renaud, and extending to current interventions in Grismer, Granovsky and Lovelace.

The CCD Board is advised by its Human Rights Committee ("the Committee"), comprised of knowledgeable and experienced persons from across the country. The current submission is a result of extensive research and consultation and a full day review by the Committee, leading to the Board's adoption of the final position.

II INTRODUCTION

The Canadian Human Rights Commission ("the Commission") and the Act deserve the disabled community's widespread criticism. Despite the inclusion of disability in the Act for more than 20 years, it cannot be said the legislation has begun to accomplish its goals. Discriminatory barriers continue to exist and new ones are being created daily.

The Supreme Court of Canada has established important human rights principles, but these principles are not being implemented in the real world of disability. The late Brian Dickson, commenting on this disparity between theory and practice for persons with disabilities (see Appendix A), said, "The Supreme Court of Canada should not have to repeat itself." He urged that government accept its responsibility for closing the enormous credibility gap by establishing systemic and regulatory mechanisms for removing the barriers which exclude persons with disabilities. CCD endorses this position and urges the Task Force to identify the problems and propose solutions in a way which ensures the government can no longer pretend it is unaware and incapable of action.

The Review consists of an examination and analysis of the Act and the Commission's policies and procedures. In July, 1999, the Canadian Human Rights Review Panel ("The Panel") distributed a consultation paper and solicited comments. The paper demonstrated the Panel's grasp of the issues. CCD's response, "Taking the Lead", is intended to be a clear and accessible statement of its position. It is anticipated that the Panel will draw heavily upon CCD's expertise for further elaboration and analysis.

The federal human rights system has the capacity to, and ideally should, demonstrate leadership to Canadian society of this country's commitment to achieving equality. The Act applies to large organizations such as national corporations and the federal government. The Commission operates across all of Canada. This unrealized potential makes the absence of leadership even more frustrating.

III CANADIAN HUMAN RIGHTS: CONTEXT AND PURPOSE

The Canadian Human Rights Act, like the human rights legislation in each of the provinces and territories, exists to remove discrimination and promote equality. From the perspective of persons with disabilities, this would involve the removal of barriers to inclusion and the enjoyment of equal benefit of the rights and privileges enjoyed by all. The Act seeks to achieve this goal through the use of both preventative and remedial measures. There is no intention in the law to punish those who discriminate. Because discrimination is a societal problem, its elimination is deemed to be in the public interest.

Besides statutory human rights, such as the Canadian Human Rights Act, guarantees of equality are contained in both the Canadian Charter of Rights and Freedoms ("the Charter") and international instruments. Canadians can resort to both of these avenues for certain kinds of protection. However, they are not as accessible as is the Act, which is specifically intended to be accessible to the public, and simpler and faster than the court system. Accordingly, the guarantees of equality in the Act are extremely important.

The various avenues for pursuing equality, while independent, are interconnected. The interpretation of section 15 of the Charter has drawn upon human rights jurisprudence. Interestingly, the reverse is also true: the jurisprudence relating to section 15 may be relied upon in interpreting human rights code guarantees. There is no requirement, however, that the Charter and human rights legislation produce identical results in every case. Assuming human rights legislation meets the standards imposed by the Charter, it should be open to Parliament, the legislatures and the courts to raise human rights standards in order to accelerate the process of eliminating discrimination.

IV MAJOR PROBLEMS WITH CURRENT SYSTEM

This section is not meant to provide a comprehensive discussion of all of the shortfalls which CCD has observed. Rather, it is intended as background for assessing the issues and recommendations which are set out below.

Role Clarification

The Commission plays multiple roles. Within the complaints process it investigates allegations of discrimination, decides whether cases should be referred to the Canadian Human Rights Tribunal ("the Tribunal"), and represents both the public interest and the complainant before the Tribunal. Additionally it is mandated to approve accessibility plans and special programs, and issue legally binding guidelines; promote human rights and conduct educational campaigns.

Respondents have challenged whether the Commission can promote and advocate human rights without being in conflict with the neutrality required for adjudication. These challenges have met with some success in the courts.

The Commission's response has been to abdicate its role as advocate for human rights and to abandon complainants during the complaints process prior to a hearing.

Prevention

The Commission cannot prevent discrimination unless it identifies what is discriminatory. This it refuses to do. Notwithstanding the powers given to it for this purpose under the Act, the Commission regards its adjudicative role as being of pre-eminent importance. When it does exercise its preventative powers, the Commission is timid and unwilling to articulate a vision of equality. Not surprisingly, new barriers are springing up as fast as the complaints process is able to knock old ones down.

Systemic Discrimination

Systemic discrimination is referred to much more frequently than it is defined. It has been described as widespread, often deep-rooted patterns of discrimination affecting many members of a disadvantaged group. It cannot be isolated to a single action or statement and is rooted in history and societal attitudes.

CCD believes addressing systemic discrimination is the most important purpose of a human rights statute. CCD also believes this is the type of discrimination which the Act fails to address. The legislation was conceived when it was assumed that human rights was about individual acts of discrimination. Resolving isolated acts of discrimination, without reference to causation or the prevention of future acts, is of only limited benefit.

CCD does not believe a particular act can be characterized as systemically or individually discriminatory. Instead, it believes an individual act can be placed within a broader context and viewed as part of the discrimination experienced historically and collectively by members of a disadvantaged group. Likewise, a remedy which addresses the broader public interest in ending discrimination (i.e. goes beyond resolving the dispute between the immediate parties to a complaint) could be characterized as a systemic remedy.

Resources

If government will not adequately fund the human rights process, then the Commission must be directed to reallocate its resources from the lowest to the highest priority issues. If individual complaints go unresolved, government will be justly criticized for having reduced the Commission's funding. Its chronic underfunding is paradoxical in view of the quasi-constitutional nature of the Act. For too long, the Commission has been subjected to the criticism of the courts and equality seeking groups for deficiencies which are attributable to underfunding and inflexible legislation. Not surprisingly, commissioners and staff with a passion for equality are loathe to work under such conditions.

Substantive Law

CCD believes that major structural and procedural changes are necessary if people with disabilities are to experience equality. Nevertheless, it also recognizes that a number of substantive changes are also necessary in order to ensure the Act's goals are achieved for persons with disabilities. These will be addressed first.

V ISSUES AND RECOMMENDATIONS

A. Substantive Issues

Purpose Clause

The purpose clause provides a basis upon which the entire Act is to be interpreted. It is set out in section 2 as follows:

The purpose of this Act is to extend the law in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, disability or conviction for an offence for which a pardon has been granted.

Recommendations:

The purpose clause, in general, does not reflect the jurisprudence that has developed relating to human rights. In particular,

a.) The purpose clause, by virtue of its focus on individuals, is not consistent with the modern view of discrimination, as enunciated in decisions of the Supreme Court. Much of discrimination is systemic in nature rather than isolated acts against individuals. The clause should recognize the existence of systemic discrimination and that the Act is a proactive tool to eliminate such discrimination. The clause should be amended to reflect the need to remove all discrimination (including that which is systemic) rather than focusing on "individuals". It should recognize group disadvantage.

b.) The purpose clause should reflect the Supreme Court's rulings of the near constitutional nature of the rights to be enforced therein.

c.) Because "equality" is such an important concept in human rights, the goal of achieving equality (broadly defined as it has been in the jurisprudence) should be clearly emphasized in the purpose clause.

Grounds

Since the definition of disability was enacted, UNESCO and the World Health Organization have moved to emphasize the social as opposed to medical aspects of the concept. While the core definition does not require change, CCD believe the three proposals which follow would assist Tribunals and courts to better understand that it is the discrimination based on disability rather than the degree of disability which is the issue before a Tribunal. Canada should avoid the formal rather than substantive approach to disability which has recently been endorsed by the United States Supreme Court.

a) Perception of disability

Disability is defined in section 25 of the Act as follows:

"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.

The Act is silent on the question of whether the perception of a disability is considered a disability. The problem with "perception" not explicitly being included in the definition of disability is that the question of whether it is covered is unclear and left to be interpreted by the Tribunal and the courts. The current wording of the Act provides no guidance for interpretation. Tribunal decisions have found that "disability" includes perceived disability as well as actual disability. However, the United States case law suggests that the definition of disability could become a battleground. For example, a recent trilogy of United States Supreme Court cases gave a very narrow interpretation to the meaning of disability in the Americans with Disabilities Act (the "ADA"). A risk exists that, absent clear wording in the Act, Canadian courts and the Tribunal could take a similarly restrictive approach to the definition of disability. An explicit inclusion of "perception of disability" in the Act would eliminate the risk and remove the uncertainty that currently exists.

The disabled community believes that perception of disability is an important inclusion to human rights statutes because experience has shown that not only does the existance of a disability lead to discrimination but that the perception of a disability also leads to discrimination. Perceived disabilities are currently covered in Ontario's Human Rights Code and in Australia's Disability Discrimination Act.

Recommendation:

Perception of disability should be added to the definition of disability in the Act.

b) Predisposition to Future Disability

As the capacity for genetic screening becomes more sophisticated it is increasingly possible for employers and service providers to conclude that a person is predisposed to becoming disabled at some point in the future. These screens are still far from being pinpoint accurate in most cases. People who may never become disabled may experience discrimination. Even when the screen ultimately proves correct, they rarely can be used to predict the onset of disability. Consequently, people can experience discrimination over an extended period of time during which they are capable of performing all the essential duties associated with the right they are being denied. Finally, the disability, once it arises, may not justify discrimination on the basis of a bona fide occupational requirement or bona fide justification.

The current definition of disability includes "previous or existing" disability. Presumably it was never intended that a person with a predisposition to becoming disabled in the future should be denied protection against discrimination. A disability that "may exist in the future" is covered in the definition of disability in Australia's Disability Discrimination Act.

Recommendation:

A predisposition to having a disability in the future should be added to the definition of disability in the Act.

c) Relation To or Association With a Person or Group Protected by the Act

Relatives, friends and co-workers can be potentially discriminated against because of their association with a person or group protected by the Act. Provisions already exist in other jurisdictions, such as Ontario's Human Rights Code and Australia's Disability Discrimination Act which protect this group. Human Rights in the Next Millennium: Recommended BC Human Rights Code Amendments for British Columbians by British Columbians also recommends that the BC human rights statute be amended to add a provision to protect people from discrimination because they are related to or associated with a person or group protected by their Code.

Based on our research, it did not appear that this is a top priority area of reform. However, it was believed that it is an important protection that should be included. The concern was expressed that this issue may take on greater importance in the future. For example, as funding for health care is cut and spouses, relatives and friends are increasingly required to play a role in care, it is easy to imagine how they too could be discriminated against when required to, for example, take time off work to care for a relative who has a disability.

Recommendation:

A new provision should be added to the Act that would protect people from discrimination because they are related to or associated with a person or group protected by the Code.

An addition CCD proposes the following changes to the ground:

d) Analogous Grounds

The grounds covered by the Act appear to be limited to those specifically listed. This is in contrast to section 15 of the Charter which lists a number of grounds which are covered "in particular". The grounds listed are interpreted to be examples of discrimination. Grounds that are not explicitly set out but that are analogous to those set out are also covered.

Courts have held that human rights legislation may violate the Charter if such legislation does not cover a ground that is one of the listed or analogous grounds in section 15. Courts have been identifying analogous grounds to those set out in section 15 and it is likely that they will continue to identify new grounds. In relation to the human rights system in British Columbia, Bill Black (in his Report on Human Rights in British Columbia, hereafter referred to as the "Black Report") recommended that the B.C. human rights legislation be worded in such a way that analogous grounds were recognized. This is the surest way to avoid an unconstitutional gap. This reasoning applies equally to the federal human rights legislation. In addition, covering analogous grounds will ensure that the Act is responsive to the changes in the manifestations of discrimination over time.

Recommendation:

The Act should be amended to be worded such that it incorporates grounds analogous to those explicitly listed.

e) Social or Economic Condition

Persons with disabilities are among the poorest Canadians. Within the disabled community there are low employment rates and a high level of reliance on social assistance. Many believe that as a result of this reality, including a ground of "social condition" or "lawful source of income" is an important protection for persons with disabilities. People who live in poverty are subject to systemic discrimination and, in particular, people who receive social assistance are stigmatized. As such, this disadvantaged group should be entitled to the protection of the Act.

Protection from discrimination on this ground is already included in other Canadian human rights statutes, such as the Quebec Charter of Human Rights and Freedoms ("social condition" is one of the prohibited grounds of discrimination) and Ontario's Human Rights Code (right to equal treatment with respect to occupancy of accommodation without discrimination because of "the receipt of public assistance"). In addition, Human Rights in the Next Millennium: Recommended BC Human Rights Code Amendments for British Columbians by British Columbians ("Human Rights in the Next Millennium") recommends that the BC Human Rights Code be amended to include protections from discrimination based on "social condition". The report stated that "lawful source of income" does not adequately protect poor people in general from discrimination and makes the recommendation to include this ground only if the ground of "social condition" is not added. In contrast, the Black Report recommends that "lawful source of income" be included rather than "social condition" as there is a risk that "social condition" may not provide adequate guidance as to what is covered and what is not.

Canada's international obligations require it to end discrimination based on social or economic condition.

Recommendation:

A ground such as "social or economic condition" should be added to the Act.

Discrimination

(a) Institutionalization

At one point the provision of institutional care to a person, often in remote settings far removed from the person's home community, was considered enlightened social policy. Today policy has changed to the point where the Supreme Court of Canada has determined that unnecessary institutionalization of persons with disabilities is an example of historical disadvantage. While independent living is acknowledged to be the proper social policy goal across the country, reality still falls far short of theory in many cases. As a consequence, some people, who nominally have a choice of where they will live, are compelled to receive the care they require in institutional settings. The ADA states, and the United States Supreme Court recently affirmed, that the denial of community living opportunities to persons with disabilities is prima facie discriminatory.

Recommendation:

The Act should provide that institutionalization or incentives to institutionalize constitute prima facie discrimination on the basis of disability.

(b) Duty to Accommodate

While the Courts have established that the goal of human rights legislation is to be inclusive, or to "accommodate" the differences of protected groups such as persons with disabilities, this is not widely recognized. In the public's mind the term discrimination does not describe the positive outcome intended in the same way as does the Charter's phrase "equal benefit of the law".

For fifteen years, the Supreme Court of Canada has grappled with the duty to accommodate. As recently as September 9th of this year, it took another step forward. The government should not leave it to the Court to micromanage the process of barrier removal for persons with disabilities. Many key barriers can be addressed through the introduction of regulatory standards. For matters which are subject to the duty to accommodate, there remain unresolved issues. The greater the uncertainty about the obligation, the more likely it is that employers and service providers will choose to do nothing and risk litigation rather than begin the process of removing the barriers for which they are responsible.

The 1998 amendments to the Act anticipated the Supreme Court's recent decision by imposing the duty to accommodate in cases of both direct and adverse effects discrimination. Nevertheless there remain several unresolved issues which, if left unaddressed, would probably take the Court another fifteen years to consider.

1. Who is entitled to be accommodated?

2. How are they to be accommodated?

3. Are these internal limits on an organization's obligation to accommodate?

In 1998 accomodation amendments were patterned on the precedent of Ontario's Human Rights Code. In discussions held between CCD and the Minister and Deputy-Minister of Justice, this precedent was discussed as were the Ontario Commission's Guidelines for Assessing Accommodation Requirements for Persons with Disabilities (1989). With respect to the unresolved issues the Accommodation Guidelines state:

Requirement of Accommodation

The needs of persons with disabilities must be accommodated in a manner which most respects their dignity, if to do so does not create undue hardship.

Respecting the Dignity of Persons with Disabilities

The phrase "respects their dignity" means to act in a manner which recognizes the privacy, confidentially, comfort, autonomy, and self-esteem of persons with disabilities, which maximizes their integration and which promotes their full participation in society.

The duty to accommodate is an organizational responsibility. Due to their superior enforcement procedures through the labour arbitration process, unionized workers have a substantial body of jurisprudence on an organization's obligation to restructure work in order to accommodate an employee with a disability. Unorganized workers do not yet have human rights jurisprudence confirming that job restructuring is contemplated as a possible mechanism of accommodation.

Recommendation:

The obligation to accommodate should be clarified by identifying a positive duty to be inclusive and ensure equal benefit.

The intent of the requirement in the Accommodation Guidelines that accommodation be in conformity with the dignity of persons with disabilities addresses major unresolved issues. This intent should be incorporated directly into the Act.

Arbitral jurisprudence about organizational responsibility for accommodating employees with disabilities should be incorporated directly into the Act.

Defenses

(a) Undue Hardship

As a result of the Supreme Court's recent decision "undue hardship" has become the primary defence available to respondents. Despite its central importance, there is virtually no guidance available from Tribunal and judicial decisions about what is meant by undue hardship, and what happens when the accommodation most in accord with a complainant's "dignity" would cause a respondent undue hardship. The Canadian Act was intentionally drafted to narrow the grounds upon which a defence of undue hardship can be based. The Accommodation Guidelines provide an extremely valuable elaboration upon the statutory language. They are consistent with current jurisprudence and if given the force of law, would accelerate the federal barrier removal process.

Recommendation:

The limited grounds upon which a defence of undue hardship can currently be based should be retained.

The detailed elaboration on what is meant by "undue hardship" and how it can be established contained in the Accommodation Guidelines should be incorporated into the Act. If portions are to be governed by regulations, the principles underlying the regulation, the time frame within which a regulation is to be enacted, and a consultation process (i.e. involving representatives of equality seeking groups) should be clearly spelled out in the Act.

(b) Affirmative Action

It is generally acknowledged that in Canada, unlike the United States, our concept of equality does not recognize claims of "reverse discrimination" i.e. claims of discrimination by members of advantaged groups using members of disadvantaged groups as comparators. Provisions such as s.15(2) in the Charter and s.16 in the Act have assisted tribunals and courts to deny such claims, by serving as an interpretive aid. Reverse discrimination is not discriminatory in Canada.

Unfortunately, "affirmative action" and "special program" clauses have been interpreted as being more than aids in interpreting what is meant by equality or discrimination. They have been used to diminish equality to the extent they have been accepted as defences to otherwise valid complaints of discrimination. These problems could be averted if s.16 were re-worded to reflect developments which have occurred in equality jurisprudence since it was originally drafted.

a) Duty to Accommodate

As worded, s.16 could be interpreted as providing a blanket defence to a claim of discrimination, as a consequence of a respondent's minimal, if well-intentioned, effort at accommodation. Two examples may serve to illustrate:

(i) An inaccessible public transit service decides to add a paratransit service for persons with disabilities who are unable to use its conventional service, but limits the service to rides to and from medical appointments; and

(ii) A public school system agrees to provide a special education program to previously excluded pupils with a developmental disability but, for reasons unrelated to their best interests, decides these pupils may only attend school half days.

If s.16 were to provide a defence in such cases it would relieve respondents of the onus upon them of accommodating to the point of undue hardship. Such an interpretation would diminish human rights in a manner which is inconsistent with the Act's purposes.

b) Good Intentions

Section 16 could be interpreted as providing a defence to an otherwise valid complaint of discrimination because the discriminatory act was "designed to prevent disadvantages" i.e. was motivated by good intentions. Undermining the substantive model of equality adopted by the Supreme Court, such an interpretation would result in good intentions overriding negative effects. Other concerns include:

(i) The intentions underlying any action will be complex and often contradictory. This is particularly true when decisions are made collectively by corporations or governments. In human rights jurisprudence, when motivation is "mixed", the existence of any degree of discriminatory motivation will take precedence, notwithstanding other more benign or even laudatory objectives which may also have been present.

(ii) As the Supreme Court has stated, true intentions are often difficult if not impossible to prove. This problem is compounded when the respondent is a government because otherwise relevant information may be withheld if cabinet privilege is claimed.

(iii) A program such as a sheltered workshop for persons with disabilities, may have been "designed" with the best intentions. Over time, those responsible for maintaining the workshop may have entirely different motives for doing so. Few sheltered workshops exist today because those responsible for operating them consider them not to be in the client/employee's best interests. As social norms change, the good intentions of the initial designer are displaced by the pragmatic, and even discriminatory intentions of those responsible for the program's perpetuation. Nevertheless, s.16 appears to focus on the intentions of the designer.

(iv) Members of disadvantaged groups, particularly persons with disabilities, can be victims of misplaced good intentions. Paternalism and overprotection are terms used to explain why people are denied the dignity of risk, are infantilized or restriced to an impoverished range of life choices. Any or all of these reasons explain why it would be wrong to allow good intentions to justify discriminatory conduct.

c.) Underinclusiveness

It is often argued that if everyone who might benefit from a particular program is included, those responsible for the program might withdraw it altogether rather than make it more widely available. This is precisely the same floodgates argument which was unsuccessfully raised in the underinclusiveness line of cases. The Supreme Court has been prepared to look beyond a respondent's stated intentions when determining whether or not a program is underinclusive. It would be contradictory and contrary to the purposes of the Act to allow the intentional underinclusivenss of a program to provide a defence to an otherwise valid case of discrimination. The statutory defences which are available to respondents are sufficient to address whatever merit exists in the floodgates argument.

Recommendation:

The Special Programs section in the Act should be replaced with the following:

a.) A clear statement that reverse discrimination complaints are prohibited (See Appendix C);

b.) Compliance with systemic processes, such as employment equity, should not stand in the way of individual or group complaints of discrimination, and s.40.1(2) of the Act, which would not withstand a Charter challenge in any event, should be repealed.

B. Process

Models for Addressing Discrimination

There are two main approaches for addressing discrimination. These are the enforcement model and the regulatory model. The enforcement model is based on the concept of applying generic human rights principles. Enforcement can take the form of complaints enforcement, which deals with complaints based on specific circumstances. Enforcement can also take the form of systemic enforcement, such as employment equity. Systemic enforcement involves the use of mandatory goals and timetables to correct the disadvantaged position of designated groups. For example, employment equity legislation addresses systemic discrimination in the workplace. Its purpose is to achieve equality in the workplace by requiring employers to take positive action relating to the representation of designated groups in the workplace.

The regulatory model prescribes functional standards to particular fact situations. It relies on establishing regulations or rules that dictate standards or actions that must be undertaken to prevent or remedy discrimination. Enforcement of the regulations can range from voluntary compliance to enforcement through fines, litigation or other complaints processes.

The complaints enforcement model is the standard approach towards human rights enforcement in all jurisdictions in Canada. Most of the work of the Canadian Human Rights Commission is directed towards addressing isolated complaints. This model is not consistent with our current understanding of equality. The courts have repeatedly emphasized that discrimination cannot be isolated to individual actions. Discrimination also means group disadvantage which is often based on history and societal attitudes.

Both the regulatory model and the systemic enforcement model have greater potential for addressing systemic discrimination. They require that positive action be taken to affect the disadvantaged position of entire groups and they aim to prevent discrimination before it occurs. This does not mean, however, that the complaints enforcement model is of no value. It does provide a remedy for people who have suffered as a result of discrimination. As well, dealing with isolated cases allows substantive rules to be developed and modified based on concrete circumstances

Recommendation:

The Commission should greatly enhance their systemic and regulatory efforts but this should not supplant the complaints process altogether. The ability to launch complaints should still exist. However, it should be secondary to systemic work. This change in emphasis would mirror the current view of equality. For such a change in structure to be effective, improvements and/or re-structuring in the current federal human rights system must occur.

Catch and Release

The Americans with Disabilities Act (the "ADA") is a comprehensive single piece of legislation aimed at removing barriers faced by persons with disabilities. The process which was developed in the ADA is one which we recommend should be looked upon as an example for reform of the federal human rights system. The process allows a much greater focus on systemic issues while maintaining a complaints based system.

The Department of Justice, which has overall leadership in enforcement, is not obligated to take on more cases than it can adequately handle. It is thus able to establish priority areas in which it is committed to achieving specific goals. There is a focus on systemic issues. Because only those cases that can be adequately dealt with are accepted, cases are resolved in a timely fashion. Individuals maintain the right to take private action, for which they sometimes receive support from publicly funded agencies. Legislated standards exist which are specific and clear.

One CCD Human Rights Committee member, drawing on the fishing analogy of "catch and release", quipped that it was important to release early or not at all. "Catch and release" would require the Commission to define its systemic objectives in advance, and have senior staff identify potential cases early in the process, focusing the investigation before it gets underway. "Catch and release" would also assist with mediation. Currently, meaningful settlements prior to the appointment of a Tribunal are rare. Well advised respondents will not enter such settlements earlier, because they are aware that only a small percentage of complaints ever make it through to Tribunal. If every case could potentially go to Tribunal, respondents would have more of an incentive to enter serious settlement discussions earlier in the process. This would make the mediation process more meaningful, particularly for complainants who have effective representation at this early stage.

Recommendation:

It is recommended that the federal human rights system establish priority areas. This would ensure that systemic issues are considered of primary importance, and not put on the back burner as they currently are. The complaints based system would be maintained. However, the Commission would focus on complaints which relate to the established priority areas or where it intends to pursue a systemic remedy. The Commission would only take on cases which it could handle properly and without delay. Accordingly, allowing claimants to pursue their rights privately before the Tribunal is an essential element of the system.

It is equally essential that complainants not be required to pay to have access to remedies in cases where the Commission does not pursue their complaints. Human rights is a public issue and so the cost of its enforcement should also be borne by the public. This could potentially be accomplished by establishing independent advocacy centers, as was recommended in Achieving Equality: A Report on Human Rights Reform (the "Cornish Report"). An alternative would be to adopt a system similar to that used in British Columbia. Complainants are not represented by Commission counsel before the Tribunal. However, the Human Rights Commission has an agreement with the Legal Services Society (legal aid). The Commission has a budget which pays the Legal Services Society and, in turn, complainants have a right to retain a lawyer which is funded by the Commission, without a means test. A further alternative might be to set up a funding mechanism similar to the Court Challenges Program.

Implementing a system which involves allowing complainants the right to take civil action needs to be carefully devised. It must be not only a theoretical right, but one which is actually available and practical for remedying acts of discrimination. Access to justice is fundamental to the protection of human rights of disadvantaged groups. A system must be devised, perhaps similar to one of the ones set out above, which ensures that complainants are funded to pursue their rights. It is recommended that the Panel study the issue of the most effective system for achieving this goal.

Enforcement and Preventative Activities of the Commission

Aside from the complaints process, the federal human rights system does contain mechanisms to affect systemic change. There are sections in the Act which allow for special programs, the establishment of guidelines and the enactment of regulations. The Commission is charged with an educational function aimed at discouraging discriminatory practices. In addition, the Commission audits and, when necessary, takes action to ensure that employers comply with the federal Employment Equity Act.

The Commission's investigative functions consume the majority of its resources, leaving little with which to pursue methods aimed more directly at addressing systemic discrimination. There is no staff dedicated to the systemic enforcement of the Act

.a.) Enforcement

An individual, group of individuals or the Commission may file a complaint. Unless the Commission refuses to deal with the complaint (which it has authority to do in certain circumstances), the complaint is investigated and a report prepared. Prior to the report being submitted to the Commission, it is given to each party for their submissions. The Commission may appoint a conciliator to attempt to settle the complaint, dismiss the complaint or refer it to the Human Rights Tribunal (the "Tribunal") for a hearing. Commission counsel appears before the Tribunal to present the complaint in the public interest.

Disability is the ground most often cited in complaints. The largest number of new complaints to the Commission in 1998, as in the past, were claims of discrimination based on disability. As such, it is particularly important to persons with disabilities that the complaint mechanism is able to effectively address the discrimination which they face.

The 1998 Report of the Auditor General of Canada criticized the Commission for its "cumbersome, time-consuming and expensive" approach to resolving complaints. Major delays exist in the processing of complaints. There is also a backlog of complaints which the Commission is having difficulty eliminating. To make matters worse, many believe that legitimate complaints are being dismissed as a result of the Commission's attempt to clear the backlog.

Virtually all human rights commissions in Canada are similarly plagued by delays in the complaints process. The widespread problem of delay in the processing of complaints has been the subject of a number of cases, including decisions of various courts of appeal in Canada. In them, respondants have argued that a stay of proceedings should be granted in view of the excessive delays. The law on this point is not yet settled and in fact, a decision of the British Columbia Court of Appeal is being appealed to the Supreme Court of Canada, which is to hear the case shortly. The fact that the issue has been the subject of so much litigation is an indication of how serious the problem is, for both complainants and respondents. When delays create a risk of staying proceedings, the entire human rights system is threatened.

The problems with the functioning of the complaints process have become so severe that the Commission has lost much of its credibility in the public's eyes. We repeatedly hear of individuals who have suffered discrimination but do not complain because they do not view the human rights process as having the capacity to provide timely remedies and to remove the barriers they face.

In addition to the complaints process, the Commission is involved in systemic enforcement activities relating to employment equity. The federal Employment Equity Act gives the Commission the responsibility for conducting audits of employers covered by the Employment Equity Act, for pursuading employers to comply and for issuing compliance orders.

Recommendation:

The complaints processing system should continue to exist as there will continue to be individual acts of discrimination which need to be remedied. There appears to be no obvious reason for the delays in the process and for the associated backlog. Some believe that more funding is required. Others believe that the very nature of the federal human rights system makes it cumbersome as it deals with very large organizations (such as the Canadian Armed Forces and Canada Post) that spread across the Country and create the possibility of international investigations. It is also possible that the fact that there are so many steps to the complaints process makes the time required to deal with complaints particularly lengthy. One message is clear: the system does need an overhaul to bring it back into repute. The following are some recommendations for change.

i) Time Limits

At present, there are no time limits, either in the Act or in the regulations, for the complaints process, including the investigation process, decisions of the Commission and the Tribunal process. The Commission does have time limits in the form of standards but has no power to enforce these. Many have suggested that there would be shorter delays and less of a backlog if time limits were imposed, by being incorporated in the Act or regulations. Indeed, section 29 of the Act authorizes the Governor in Council to make regulations relating to the Commission's powers and duties and section 43(4) authorizes the Governor in Council to make regulations relating to investigations. It seems clear that the time limits must be enforceable and have penalties to be effective. The Canadian Transportation Agency (the "Agency") provides an excellent example of the effectiveness of time limits. The Agency is repeatedly commended for its timely resolution of cases, which must be resolved within 120 days.

Some concerns have been expressed relating to the effects of establishing time limits. Some believe that meritorious cases may be denied a hearing. This has been viewed as a concern particularly when there is a large backlog. Others are concerned that the quality of the result will be sacrificed for the sake of expediency.

ii) Funding

The Commission's funding has been reduced. This result is inconsistent with the prominent status that courts have repeatedly accorded to human rights statutes. Funding must be increased to ensure that the principle of equality becomes a reality. Many believe that insufficient funding is an explanatory factor of the delays and backlogs and most believe that the federal human rights system requires more funding. British Columbia, while containing differences by being a provincial rather than a federal Commission, provides a case in point. The government recently provided special funding to the Commission to relieve the backlog. At present, the Commission has no backlog. If it is impractical to obtain a continuous government commitment of increased funding, the B.C. experience shows that even a one time lump sum of funds should help.

iii) Investigation Process

Some have expressed the view that the investigation process is inflexible and that making it more flexible will improve its efficiency. There should be a recognition of the varying levels of complexity of cases which warrant varying levels of investigation. Some complaints do not require an extensive investigation, where, for example, credibility is the main issue. These cases can go straight to the Tribunal as the Tribunal is in the best position to decide issues of credibility. There may also be cases where both parties could agree to go to the Tribunal without an investigation.

b.) Preventative

A number of preventative mechanisms, some of which relate specifically and only to persons with disabilities, are contained in the Act. These are as follows:

1) Special Programs s.16

It is not discriminatory for a person to implement a special program by improving opportunities respecting goods, services, facilities, accommodation or employment. These special programs must be "Â… designed to prevent disadvantages that are likely to be suffered by, or eliminated or reduced disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discriminationÂ…". There is no requirement for prior approval by the Commission. As a result, there may be programs that exist of which the Commission has no knowledge.

This section has not succeeded at improving opportunities and removing barriers. There are very few programs for which the Commission has provided advice or assistance. To the extent that special programs do exist, the Commission has made no efforts at advising the public of them. CCD has recommended the repeal of section 16. In addition to the insertion of the "reverse discrimination" section, the Commission could publicize programs contained in service or employment equity plans which accelerate the achievement of equality.

2.) Plans to Meet the Needs of Persons with Disabilities s.17, s.18 & s.19

A person may propose, for the Commission's approval, to implement a plan for "adapting any services, facilities, premises, equipment or operations" to meet the needs of persons arising from a disability. One interpretation would appear to be that approval of such a plan bars a complaint of discrimination on the basis of disability. If this is so, the section does not go far enough in meeting the goals of persons with disabilities since it would mean that complaints arising from discriminatory practices would be barred.

The proposal of a plan to meet the needs of persons with disabilities is voluntary. There are no such plans at present, and nor have any ever existed.

Recommendation:

It is recommended that sections 16 to 19 be amended so that they function as a systemic enforcement model for goods, services, facilities and accommodation in the same way that the Employment Equity Act functions as a systemic enforcement model for employment. Mandatory obligations must be imposed which would require organizations to adapt their services, facilities, premises, equipment or operations to the needs of persons with disabilities. The new model should not shelter respondents from claims of discrimination. Plans may be ordered as a remedy by a Tribunal similar to the provisions of Section 47 of the Saskatchewan Human Rights Code. Where affirmative steps are taken, respondents should still be required to accommodate to the point of undue hardship.

At present, the Commission has no expertise to assess plans which are proposed to meet the needs of persons with disabilities. In view of the fact that the plans require Commission approval, such approval is meaningless unless the staff charged with approving the plans possess the necessary expertise. The Commission should hire staff who possess the required expertise.

3) Accessibility Standards s.24

The Governor in Council may make regulations for the benefit of persons with disabilities which prescribe standards of accessibility to services, facilities or premises.

In addition, the Act contains other sections which grant the Governor in Council the authority to pass regulations which do not relate specifically to disability issues.

No accessibility standard regulations have ever been enacted. In fact, the power to make other regulations has been rarely used.

By incorporating this section, it was obviously intended that the regulatory model be part of the Act. The section failed to achieve its purpose because it has never been used. This section showed enormous promise and could have put Canada in the forefront of barrier removal internationally.

There is no mechanism for initiating the process of enacting the regulations. The Commission showed a lack of initiative in not assuming this responsibility.

Recommendation:

Regulations are an extremely important vehicle for preventing discrimination. It is unclear why no regulations have been enacted which are specifically aimed at removing barriers faced by persons with disabilities. What is clear, however, is that regulations which contain clear and precise standards for accessibility will establish a floor of human rights protection, reduce litigation and provide much needed guidance regarding human rights obligations. The clear and precise standards provided under the ADA have been demonstrated to be effective at barrier removal.

The Governor in Council should be criticized for not enacting any accessibility standard regulations and the Commission should be criticized for not taking the initiative to propose regulations. The Commission should be given the mandate to initiate the regulation making process based on its identification of systemic barriers in the same way that the Canadian Transportation Agency does. Such regulations will contain clear goals and achievable timeframes for compliance.

CCD urges the Panel to identify in the Act three areas where regulations are to be implemented within a specified time frame, following a consultation process involving stakeholders. Those areas are:

i. Banking services, including automatic banking machines

ii. Accessibility to government information, and

iii. Accessibility of web sites on the internet.

The Commission should be given adequate resources to enable it to provide technical assistance to the government in relation to the regulations.

One aspect of the ADA which has received universal acclaim is the use of agencies which give technical assistance to employers, service providers and persons with disabilities. Promotion of public awareness is achieved by publishing standards and providing information and training. The agencies are independant of the bodies responsible for enforcing the ADA. Following the lead taken in the United States, it is recommended that the standards and regulations which are enacted pursuant to the Act be made easily accessible to the public. An agency which is independant of the human rights decision-makers (i.e. in the present system, the Commission and the Tribunal) should have a mandate to provide technical advice to both respondents and complainants. A Canadian example would be the Job Accommodation Network (Canada).

4.) Guidelines s.27(2)

The Commission may issue guidelines setting out the extent and manner in which any provision of the Act applies in a class of cases. These may be issued pursuant to an application or on the Commission's own initiative. The guidelines are binding on both the Commission and the Tribunal, but they are not binding on the courts. They cannot create offences or impose new obligations.

The Commission has issued guidelines, the last of which was the Equal Wage Guidelines in 1986. No guidelines have been issued since then that relate specifically to issues affecting persons with disabilities.

The reluctance of the Commission to issue guidelines is likely related to challenges to the legitimacy of this power: the Commission's rules bind the Tribunal before which it appears as an advocate.

Recommendation:

Assessing Accommodation Requirements for Persons with Disabilities (1989) are guidelines pursuant to Ontario's Human Rights Code relating to accommodation. These flesh out the concept of accommodation and have proven extremely useful. However, they would have been more useful if they had the force of law. It is recommended that the Canadian Human Rights Act be amended to include the intent of Ontario's Guidelines.

c.) Roles of the Commission

The many roles of the Commission are perceived by some to be in conflict. It is the Commission's duty to impartially investigate complaints and to decide whether cases should be referred to the Tribunal. At the same time, it is the Commission's role to promote and advocate human rights. As a result, the Commission, for fear of being perceived to be in a conflict, is not actively making use of the powers granted to it under the Act to promote human rights. Respondents' rights continue to be protected while complainants are losing out.

Recommendation:

The Tribunal should decide which cases merit a hearing rather than the Commission assuming this role. This would enable the Commission, by freeing up resources and removing the conflict, to actively promote human rights. The problem of conflict would be remedied since the Commission would act like the prosecutor, protecting the public interest, leaving the decision-making role to the Tribunal.

Tribunal members are now required by law to demonstrate human rights expertise and sensitivity. Commissioners should be required to have comparable qualities and additionally to have:

i. A demonstrated track record in advancing the cause of human rights;

and

ii. The confidence of the community from which they come.

Remedies, Settlement and Judicial Review

Now that there is a permanent Tribunal, and under CCD's proposal, the Tribunal would be hearing all the cases which it did not dismiss pursuant to section 41, complainants or the Commission should be able to apply to the Tribunal for the equivalent of an interim injunction.

As a group, complainants generally lack the resources to apply for judicial review of Tribunal decisions. Respondents, particularly in systemic cases, may wish to apply in order to delay the implementation of an order. Alternatively, respondents may believe the cost of compliance with the order may warrant even a long shot judicial review application. A very high proportion of Tribunal decisions have been judicially reviewed. This compounds problems of delay, consumes scarce Commission resources and creates the impression that money can prevail over human rights. The post-order resource imbalance between complainants and respondents has not been effectively addressed.

In the absence of a privative clause and due to the perceived lack of "special expertise" on the part of Tribunal members, the Supreme Court has stated that Tribunal decisions will only be accorded a minimal level of deference. This is ironic since Charter equality jurisprudence is primarily based on the human rights decisions of tribunals. While the Court's respect must in substantial measure be earned, the establishment of a permanent Tribunal is an opportune time to signal a legislative intention that greater deference be shown through the inclusion of a privative clause.

Settlements can be an effective and efficient means of resolving many complaints. As with Tribunal orders, it is essential to the achievement of the purposes underlying the Act that respondents comply with their obligations under a settlement. Recently, the Act has been amended so that the consent of the Minister of Justice is no longer required before a settlement can be enforced. At least two problems remain:

(i) Orders and settlements can only be enforced through the Federal Court, requiring the involvement of lawyers and exposing successful complainants to a potential adverse cost award.

(ii) The Commission is not obliged to assist a complainant to enforce an order or a settlement, and has been known to do so. No criteria exist for determining how its discretion is to be exercised when deciding whether or not to enforce compliance.

Recommendation:

a.) A privative clause should be included in the Act;

b.) Complainants should have the option of lodging a further complaint in order to have a panel of the Tribunal decide whether or not a settlement and/or order has been violated and this determination should be binding on the Federal Court (see, for example, Ontario's Human Rights Code);

c.) Where a court order is necessary, the Commission should be required to enforce a Tribunal decision;

d.) If a complainant alleges a settlement or order has been violated and wishes the matter to go directly to the Federal Court with the Commission's assistance, the Commission should either assume carriage of the matter or refer it to Tribunal.

e.) The Tribunal should be empowered to grant interim injunctions.

VI CONCLUSION

The federal human rights system has not kept pace with changes over time in the concepts of equality and discrimination as well as with a number of significant Supreme Court of Canada decisions on these issues. The system is unresponsive to those who face discrimination and many have lost faith in the system altogether. Persons with disabilities have been let down. Over twenty years have passed since Parliament established the federal human rights system but old barriers continue to block people from participating fully in Canadian society and new barriers continue to be erected.

CCD has seriously considered the question of whether to endorse the enactment of a Canadians with Disabilities Act ("CDA") with the hope that such legislation might be the answer for removing the barriers faced by Canadians with disabilities. (See Appendix D). In fact, a CDA was recommended in a report of the 1996 Federal Task Force on Disability Issues, "Equal Citizenship for Canadians with Disabilities: The Will to Act." CCD also recognizes that the federal human rights system has the potential to achieve the goal of barrier removal. CCD hopes that the Canadian Human Rights review process will result in the necessary reforms and will set an example for Canadian society and other human rights systems to follow.

People with disabilities are of both genders and all ages. We come from many racial, ethnic, and religious backgrounds, from different sexual orientations and are as diverse as the Canadian population. Other countries have felt it necessary to establish stand alone disability legislation in order to secure our human rights. CCD sincerely hopes the Task Force can respond sufficiently to the particular needs of persons with disabilities within a broad based human rights context. Only then will the government be able to say it has "taken the lead".

LIST OF APPENDICES

A. Brian Dickson, "Disabilities Act must have teeth", The Toronto Star, October 7, 1998.

B. Ontario Human Rights Commission, "Assessing Accommodation Requirements for Persons with Disabilities (1989)".

C. CCD's position on the Charlottetown Accord

D. Lana Kerzner and David Baker, "A Canadian With Disabilities Act?", CCD Discussion Paper, May 4, 1999.