Expanding Horizons: Rethinking Access to Justice in Canada
Appendix B (continued)
Diversity and Access to Justice Workshop (continued)
The Experience: Problems in Delivery of Access to Justice For Members of Diversity Groups
The short answer to the question posed above is that we have not been very successful in developing delivery mechanisms to meet the promise of recent substantive growth in the right to equality. How have we failed? Let me count the ways.
First, our experiments with government mechanisms to implement pro-active employment equity measures on a jurisdiction-wide basis have been largely unsuccessful to this point. Despite the willingness of human rights adjudicators to order remedial measures which include an employment equity plan to correct systemic discrimination in a few rare cases,[32] many believe that the most effective means of providing substantive equality in the workplace for diversity interests is to adopt government mechanisms which require employers and unions to act pro-actively to identify and remove barriers to equality of opportunity in the workplace. This led to the adoption of employment equity legislation in the federal jurisdiction in 1985[33] and 1996,[34] and in Ontario from 1993 to 1995.[35]
The first federal act was generally viewed as little more than a flawed reporting mechanism to track the progress (or lack thereof) of members of the four designated groups (women, aboriginal persons, visible minorities and persons with disabilities) in a small portion of the federal workforce. However, the 1996 federal Employment Equity Act and the Ontario legislation are generally viewed as more serious attempts to implement substantive equality on a pro-active system-wide basis. Common to both regimes are the following: the objective of removing systemic discrimination from private and public workplaces in so far as it affects four diversity groups - aboriginal persons, visible minorities, persons with disabilities and women; obligations imposed on employers to do workplace surveys to identify levels of representation of members of the identified groups for all occupational groups within the workplace and to identify workplace barriers to equality of opportunity for members of the groups; requirements for employers to prepare an employment equity plan which identifies short and long term goals to achieve representation by members of designated groups in their workforce that is consistent with their availability in the labour force and in their community, and identifies the positive measures and policies they will implement to meet their goals; provisions for administration and enforcement by a government agency with the power to do compliance audits and issue compliance orders; access to an adjudicative tribunal to challenge or enforce compliance orders.[36]
While it is too early to tell if the new federal act has enough teeth to make it more effective than the 1985 legislation, obviously these initiatives have had a very limited impact on ensuring substantive equality to this point. The short-lived nature of the Ontario legislation means that today pro-active employment equity schemes are only in place for less than one million workers in the federal sector (less than 8% of the population). Serious concerns have also been raised about limitations built into the Act. The legislation contains provisions which should generally protect seniority schemes under collective agreements from being held to be barriers to equal opportunity and it also prohibits the issuance of a compliance order that would have the effect of imposing a quota requiring an employer to hire or promote a fixed number of persons during a given period. More flexible numerical goals can be specified.[37]
Finally, this is a model for protection and promotion of diversity interests in the workplace that is very demanding in terms of resources, and some have expressed concern that, as governments seek to reduce budgetary allocations for government programs, employment equity initiatives will be funded inadequately and at the expense of other anti-discrimination programs and mechanisms.[38]
The failure of governments and their agencies to adopt pro-active or remedial employment equity initiatives on a more widespread basis leads us back to a consideration of how well we are doing at meeting the needs of members of diversity groups under the traditional complaint driven mechanisms. Anyone familiar with this area will know that the incapacity of human rights commissions to deal effectively with human rights complaints in a timely manner has been the subject of considerable criticism for many years now. The reports of huge backlogs of complaints and lengthy delays of three to seven years to have a complaint dealt with by an adjudicative tribunal have been the subject of academic and judicial comment since the late 1980's.[39] This has also resulted in criticisms from Auditors-General on occasion, particularly in the federal sphere, that human rights commissions are trying to do too many things and are taking too long to do them due to inefficient management. Over the years spokespersons for human rights commissions have pointed to increases in their jurisdiction and workload due to the substantive developments referred to above and have argued that governments have failed to provide adequate resources to deal with that workload effectively.[40] However, pleas for real increases in funding for human rights commissions or reforms which would enable complainants to have much more control over the processing of their complaint have, for the most part, fallen on deaf ears.[41]
These problems have led to several related developments in the last 5 to 10 years that have seen a significant transfer of human rights claims to other forums for the resolution of workplace disputes. In the first place, employees have voluntarily sought to make their claims in courts or other adjudicative tribunals such as grievance arbitration or the Ontario Labour Relations Board to avoid the delay they found in the human rights commission process. In the earliest attempts by unorganised employees to go to court for relief in a civil action the bar to recognition of a tort of discrimination that was raised in Board of Governors of Seneca College v. Bhadauria[42] was used to preclude court action. However, beginning in the mid 1990's courts began to allow actions based on conduct addressed by human rights legislation to continue as long as they based their claim on the assertion of traditional causes of action previously recognised at common law and did not seek damages based on a violation of the human rights code.[43]
Organised employees working under a collective agreement were generally precluded by the common law from maintaining a common law action in court but many began to seek the support of unions to support their claims in the grievance arbitration process.[44] Arbitrators had begun to gradually accept jurisdiction to hear grievances alleging a violation of the human rights code if there was a sufficient nexus with a collective agreement provision to give them jurisdiction. In 1993 this method of acquiring arbitral jurisdiction over human rights issues was given legislative recognition in the Ontario Labour Relations Act.[45] Several other jurisdictions in Canada also give grievance arbitrators the jurisdiction to interpret and apply human rights legislation in their decision making process. Some employees also sought to escape the human rights commission logjam by applying to the Ontario Labour Relations Board under its occupational health and safety jurisdiction to claim that discriminatory conduct by the employer, such as racial harassment or sexual harassment, had made the employer’s workplace unsafe due to the mental stress it put on the employee. In some cases an employee might seek relief in several forums at the same time to see which one would deal with her claim the most quickly.[46]
The tightening of government budgets and the push to make the delivery of government services more efficient have led to a third significant development. The human rights commissions in several jurisdictions, most notably Ontario, have adopted a policy of almost complete refusal to take jurisdiction over human rights complaints by employees who work in an organised workplace and are subject to a collective agreement. In the interests of responding to criticisms of inefficiency, in 1993 the Ontario Commission adopted a strict and rigorous policy of deferral to arbitration where the complainant worked under a collective agreement.[47] The Commission’s guidelines[48] refer to the important public interest in stable and harmonious labour relations and express concerns that the human rights process should not become a tool to replace the collective bargaining process. The guidelines do suggest that the Commission should consider each case on its own basis and note that one factor to consider is whether there may also be complaints against the union. Nevertheless, recently published statistics and anecdotal evidence suggest that a refusal to process complaints submitted by organised employees has become the normal course of operations. Cases in which a decision to decline to process has been taken have tripled since introduction of the policy in 1993.[49]
Union counsel report that the Commission refuses to process cases when they learn the complainant works under a collective agreement, even in most cases where there is concern expressed that the union will not support a grievance to arbitration and there is a possibility of a claim against the union as well as the employer.[50] The justification most often offered for declining to proceed in cases where the union may not support a grievance to seek redress for discrimination or may even be a party to discrimination is that the employee may seek redress before the Ontario Labour Relations Board (OLRB) on a duty of fair representation complaint against the union. However, those familiar with the jurisprudence on duty of fair representation complaints before labour boards will know that the prospects of success on these claims are quite slender.[51]
The Ontario Human Rights Commission has asserted that its 1993 policy has been a great success, enabling it to get to a point where it now is able to process in a year as many or slightly more cases than it has opened for that year. It should be noted that the Ontario Commission has also recently embarked on pilot projects using private mediation services to attempt to help it clear its backlog of cases. In 1999 it claimed that these types of efficiency measures enabled it to resolve approximately 60 per cent of its incoming cases within 6 months.[52] But the question that has to be asked is what price has been paid in terms of access to justice to attain these efficiency gains?
First, there are the very obvious concerns that a three fold increase in complaints where the Commission declined to process must mean that at least some individual claimants are being denied access to any forum to protect their diversity interests from discriminatory treatment.
At the same time however, I think far too little attention has been paid to the consequences for access to justice for diversity groups of the increasing privatisation and collectivization of processes for the administration and enforcement of individual statutory and Charter rights. Human rights commissions are not alone in their new respect for labour arbitration as the appropriate forum to protect the most fundamental rights of organised workers. In the recent decision of Weber v. Ontario Hydro,[53] the Supreme Court of Canada held that grievance arbitrators should have exclusive original jurisdiction over the claims of unionized workers to protect their rights under the Charter of Rights as long as the factual nature of the dispute could be said to arise expressly or inferentially under the collective agreement. Through decisions like Weber, the administrative practices of human rights commissions (under statutory discretion provisions like s.34 in Ontario) and outright legislative transfers to private processes such as the 1996 amendments to the Employment Standards Act,[54] we have embarked on a trend of transferring jurisdiction over statutory individual rights claims from public officials and tribunals to private organizations and procedures - unions and grievance arbitration.
This raises several questions. What is the impact on the protection and evolution of statutory public rights of assigning the adjudication of these claims to privately appointed arbitrators whose future employment depends on the satisfaction and acceptance of the parties to a collective agreement, the union and the employer, NOT the individual or the government who one assumes are most concerned with the protection of public statutory rights?[55] What will be the long term effects of the assignment of responsibility for the protection of individual statutory rights to collective processes in which decisions to support claims and seek enforcement will be affected by the collective concerns of the union and all of its members? Unions and grievance arbitration are institutions of our collective bargaining regime and were designed primarily for the reconciliation of collective interests without undue disruption of production. Although they have some capacity to deal with individual rights issues, we must always remember that this is not their primary mission or institutional bias.[56] The submission of jurisdiction over the protection of individual rights and diversity interests to collective processes and institutions appears quite questionable in public policy terms, especially when one is considering the enforcement of constitutional and quasi-constitutional minority equality rights.[57]
Conclusion
The concern raised by the twin spectres of privatisation and collectivisation of processes for the enforcement of Charter and human rights is that the tenuous balance between the values of access to justice and substantive equality and the values of efficiency and the market that is inherent in any regime for the protection of human rights will gradually be skewed in favour of the values of the market. It was this tendency of private actors and private processes to favour the values of the market over those of substantive equality and respect for human dignity that led to the call for significant intervention by public agencies to protect human rights in the post war period. We need to be vigilant to ensure that the current ascendancy of the values of efficiency and less government do not undermine our ability to provide access to justice in the form of substantive equality of opportunity for members of diversity groups. The promise of equality and protection for diversity interests offered by recent legislative and judicial developments concerning the substance of our Charter and human rights law has never been greater. But the realisation of that promise for many members of diversity groups is threatened by our failure on several fronts in recent years to develop appropriate delivery mechanisms for access to justice. These shortcomings include: a failure to find acceptable and effective mechanisms for the imposition of employment equity measures on a system wide basis for most Canadians; a failure to provide adequate resources for effective mechanisms to handle individual discrimination complaints under traditional human rights regimes; and a trend towards the privatisation and collectivisation of processes for resolving individual Charter and human rights complaints. All of these developments, with the possible exception of the first one, appear to be driven primarily, if not solely, by efficiency concerns. The struggle to overcome these shortcomings and refocus our efforts on access to justice for the protection of diversity interests will be very difficult in an era where the values of the market and efficiency concerns are so prominent that Canadians, or at least Canadian governments, seem prepared to tolerate the under-funding of health and education delivery programs despite the attainment of budget surpluses and significant tax cuts.[58]
The answer does not lie in recognising a right, constitutional or otherwise, to sue in regular courts for violation of equality rights.[59] Nor does it lie in assigning the functions of a government human rights commission to unions or other private collective organisations. What is required is nothing less than a recommitment to the values of access to justice for the protection of diversity interests and a search for new resources and public mechanisms for delivery that will allow us to close the gap between promise and experience. But we must be careful in considering alternative delivery mechanisms to focus more on their effectiveness in protecting diversity interests than their efficiency in clearing caseloads.
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