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Gail J. Cohen

Editor's Desk - Time for a radical overhaul

When gathering my thoughts to put together this issue of Canadian Lawyer, I went through a series of ideas for a cover story that quickly got shelved. Then, I started thinking about human rights law and the part it plays in our lives both as Canadians and citizens of the world. I am a voracious consumer of news and much of my news-reading time over the last few months has been spent focused on the situation in Zimbabwe, the land of my birth, where the rule of law and respect for human rights has all but disappeared. With that in the back of my mind and the editorial calendar (and its looming deadlines) at the fore of my mind, I realized that human rights law, particularly in the form of the Charter of Rights and Freedoms, has really shaped labour and employment law in this country.


But with that focus on human rights, many labour and employment cases end up mired in the massive backlogs that plague many of the country’s human rights systems. As one lawyer points out in our cover story, “Signs of change,” by the time many cases wend their way through the system so much time has passed that the resolution may end up being meaningless in many ways. In other situations, the length of time leads complainants to drop or settle their complaints without feeling they’ve got any justice. Ontario and British Columbia have revamped their systems. Neither has been met with unqualified enthusiasm, although Ontario’s is still in its infancy. There is a glimmer of hope from most labour lawyers that these new systems will work out better for both employees and employers caught up in the process.


Success, however, does remain elusive and the workings of human rights commissions and tribunals across the country remain a mystery to most ordinary folks. Ezra Levant highlights in his Back Page column how the B.C. Human Rights Tribunal heard a complaint against Maclean’s magazine brought by an Ontario man about something in a publication originating in Ontario. Although Levant has had his own run-in with human rights tribunals (over complaints about publishing Danish cartoons portraying the prophet Mohammed) and does not hide his disdain for them in general, he does have a point. Why should a case that has nothing to do with B.C., other than there are Muslims in the province who may have read and been offended by the complained-about article, be heard before a tribunal there?


The Ontario Human Rights Commission wouldn’t proceed with a similar complaints against the magazine (neither would the Canadian Human Rights Commission), but in an odd twist, while the Ontario commission’s press release said it wasn’t within its jurisdiction to deal with the contents of magazine articles, it cast judgment anyway, saying it “strongly condemns the Islamophobic portrayal of Muslims, Arabs, South Asians and indeed any racialized community in the media, such as the Maclean’s article and others like them, as being inconsistent

with the values enshrined in our human rights codes.”


As Canadians, we understand the value of protecting human rights but the process has become so convoluted (see the chart of Alberta’s on page 58), and some may even say unfair, that a comprehensive and massive overhaul is likely necessary before the parties who get embroiled in these systems, either as a complainant or respondent, feel that justice is being served. Will Ontario’s most radical change thus far be the one for the rest of the country to follow? Perhaps. But perhaps even that is not enough and the next province to try will build on Ontario’s mistakes. Time will tell, but the systems of human rights tribunals and commissions across this great country need some serious work — and I don’t mean tinkering.


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