Abolition of human rights body a good idea

Sometimes, when good ideas come from supporters, I wonder about their motives. When good ideas come from critics, though, I pay closer attention.

Alberta Wildrose Party leader Danielle Smith wants to abolish the Human Rights Commission and replace it with a specialized Human Rights Court, with trained legal staff to prosecute arguable complaints of discrimination. This idea deserves serious consideration by anyone concerned about fair process in Alberta and elsewhere in Canada.

Back in 1981, the Supreme Court of Canada ruled in Seneca College v. Bhadauria that there is no tort of discrimination under Canadian common law — that area of law based on customs and court decisions rather than written laws.

In other words, the Supreme Court was saying that victims of discrimination did not have to make a legal case against alleged human rights violators because they could make complaints under existing human rights legislation.

When provincial legislatures and the national Parliament enacted human rights acts decades ago, they set in motion processes purportedly designed with the aim of efficient and fair resolution to complaints of discrimination in mind. Persons alleging they had suffered discrimination in employment, accommodation or services customarily available to the public, because of a disability, ethnicity, or gender for example, were to have access to a complaint process that was adjudicative in nature.

By that was meant that an attempt to mediate a resolution would be tried first and, only if that failed to produce a result, would a complaint be tagged for more formal investigation and then set down for a hearing before a human rights tribunal, if necessary.

I recall hearing a passionate anti-racism advocate argue once that human rights commissions provide an inexpensive way for victims of racism to obtain "access to justice." If only that were true, I could be an ardent defender of the present system.

It is not, at least in Alberta anyway, and probably other places too, including at the national level.

I have occasionally taken calls in my duties with the Alberta Civil Liberties Research Centre from frustrated people who cannot understand why their human rights complaints haven’t been settled yet.

In some instances, complaints have taken over 10 years to grind through mediation, then seemingly interminable investigation when mediation does not work, before finally going to a hearing before a human rights tribunal. Then either party has the right to appeal a decision, which means the case may be sent back to a tribunal for a re-hearing.

And so the merry-go-round can go around and around. How does a process that must seem Kafkaesque to at least some victims of discrimination represent "access to justice"?

Whatever the reasons — uncooperative respondents, insufficient staff, administrative inefficiencies — anecdotal evidence suggests that some legitimate complainants see their cases proceed at glacial speed through a system that is supposed to be fair, expeditious and inexpensive.

How sadly ironic that victims of discrimination based on race, gender, sexual orientation, disability, etc. are frustrated through systemic gridlock by the very system whose mandate is, as its defenders like to argue, to provide access to justice to those who may not otherwise afford to sue.

Danielle Smith is right, at least on this issue. Remove the complaint process from the Human Rights Commission, set up a specialized human rights court staffed by real judges, and hire human rights legal advocates to prosecute the case for complainants whose complaints have been vetted by investigators with a legal background and the discretion to reject complaints that do not have arguable merit.

However, why create a Human Rights Court under the jurisdiction of a provincial court, as Smith has suggested?

A more appropriate level would be a superior court — for example, the Queen’s Bench in the case of Alberta or the Superior Court in Ontario — where the threshold for appeal to a Court of Appeal is inherently higher than for a lower court. (In the case of complaints against federal institutions, complaints would be heard by the Federal Court.)

Also, the human rights court judges should be able to assign cost consequences against either party just as their judicial colleagues now do in civil cases generally. Cost consequences could then be laid against a complainant when a complaint is found to lack merit, against a respondent when evidence shows particularly reprehensible acts of discrimination or against either party that acted disrespectfully or refused to cooperate during the investigative and/or mediation phases.

Brian Seaman is a researcher with the Alberta Civil Liberties Research Centre.

—Troy Media