As a labour and employment lawyer and human rights commissioner, I believe that Canada needs human rights commissions now more than ever. That does not mean that all provincial human rights laws should contain hate-speech provisions. In fact, most don’t. B.C., Alberta, and Saskatchewan are the only common law provinces that include hate-speech sections in their human rights laws.
Much of the criticism of human rights commissions has focused on a few themes. One theme is that some human rights complaints are frivolous. That is certainly true. Some lawsuits are also frivolous. Some applications to other tribunals, such as labour boards, are also frivolous. I can understand how the victim of a frivolous human rights complaint or frivolous litigation of any kind would be upset.
But, in a democratic society, there is literally no way to screen out all frivolous litigation in a way that would not also screen out some perfectly valid litigation.
I know from personal experience as a human rights commissioner that it is sometimes impossible to tell whether a complaint has any merit until at least a few key witnesses have been interviewed or a few key documents reviewed. A complainant files a complaint that, on the surface, appears plausible. The respondent (often a small business) fires off an indignant reply alleging that the complaint has no merit, but not providing much detail. The parties are not interested in any form of mediation. At that stage, a human rights commission has no choice but to investigate.
The investigation may ultimately reveal that the complainant was less than fully honest and that the complaint is totally without merit. The respondent is angry and jaded about the whole human rights process, particularly if he or she has hired a lawyer and incurred some legal bills. I sympathize with the respondent, but what’s a responsible commission to do?
If commission staff had the power to screen out any complaint that looked doubtful, and actually did so in practice, they would end up screening out at least a few valid complaints. That would be much worse than the current situation. By the same token, if a court employee had the power to reject any statement of claim that seemed at first blush to have little merit, some perfectly valid claims would be screened out. No fair-minded citizen would want that.
The second theme raised by critics is that human rights tribunals use informal rules of evidence and allow evidence that would not be admissible in a court. The critics claim to be shocked by this. They obviously have never attended a labour arbitration hearing!
The rules of evidence used by courts are very complex, and many hours have been spent by lawyers arguing over evidentiary issues in the courts. The fact is that almost all administrative tribunals use informal rules of evidence and, by design, admit some evidence that would not be admissible in court. There are advantages to this approach. For example, it makes hearings more accessible to non-lawyers. In the world of labour arbitrations, many larger unions use staff officers (who are not lawyers) to conduct their hearings. This is a good thing.
Finally, critics argue that human rights laws are not needed anymore because there is less discrimination than there used to be, and because victims of discrimination have other legal remedies, such as wrongful dismissal lawsuits. It is true that Canada as a whole is a more tolerant and accepting society than it was half a century ago, but discrimination still exists. For example, it is still extremely difficult to be openly gay or lesbian in rural Canada.
As for wrongful dismissal lawsuits, the sad truth is that civil litigation is a rich person’s game. Most non-unionized employees who have just been fired simply don’t have the money for a lawyer. In some cities, some employment lawyers will work on contingency, but that is not universal. Maybe, in a perfect world, legal aid would be expanded to cover all wrongful dismissal litigation, but we all know that such a thing will not happen in the foreseeable future.
In contrast, you don’t need a lawyer to file a human rights complaint.
Also, human rights commissions are becoming extremely skilled at mediating mutually agreeable settlements, at no cost to either party. The courts do not provide free mediation for parties to civil lawsuits.
In short, my direct first-hand experience is that, at least in my home province, the human rights commission is working quickly and efficiently, and still plays an essential role.
Elliot Leven is a Winnipeg lawyer in private practice, and a Manitoba Human Rights commissioner.