Opening Statement to the Committee on Public Accounts

Chapter 10 - Canadian Human Rights Commission - Human Rights Tribunal Panel (September 1998 Report)

27 October 1998

David Rattray, FCGA
Assistant Auditor General

Mr. Chairman, thank you for this opportunity to discuss with you our audit of the Canadian Human Rights Commission and the Human Rights Tribunal Panel.

Parliament created the Canadian Human Rights Commission and the Human Rights Tribunal Panel in 1977 to resolve human rights complaints quickly, impartially and expertly. This reflects a fundamental consensus among Canadians that human rights should be protected and promoted. However, our audit found that the approach that has evolved is cumbersome, time-consuming and expensive.

Since 1987, the Commission and the Tribunal have received about $175 million to address complaints as well as to promote human rights. These expenditures do not include substantial expenditures by complainants or by respondents who often are government departments and agencies, Treasury Board and Crown corporations.

Complaints take a long time to resolve and most are dismissed

The Commission’s standard for completing investigations is nine months and about one year for reaching final decisions. We found that complaints take a much longer time to resolve. On average, between 1988 and 1997, it took the Commission 27 months to reach final decisions on complaints. Specifically, it took:

• about 25 months to decide to dismiss cases due to lack of evidence; about 34 percent of cases are dismissed;
• about 23 months to decide not to proceed further on cases, primarily because complaints were settled or withdrawn; about 31 percent of cases fall into this category; and
• an average of 45 months to reach final decisions on the seven percent of cases that were first investigated and then sent to conciliation.

Since January 1993, the Commission has had information on the time taken to address pay equity complaints. Since that time, 36 pay equity complaints have been filed; 23 of these have been on file for over three years.

It may take several more years to resolve a complaint if they are forwarded to the Tribunal for adjudication, and if decisions of the Commission and of the Tribunal are appealed for judicial review by the Federal Court.

The Commission continues to have a significant backlog of cases

The Commission considers a case to be in its backlog if it is still being investigated nine months after being signed. Between 1991 and 1995, the Commission’s backlog ranged from 62 to 72 percent of its open cases. In 1997, almost one-half of the Commission’s cases were still being investigated one year after the complaint was signed.

Major efforts have been made to address problems

The situation we have described is not new. For example, in 1985, we reported that the Commission was experiencing major delays and backlogs in handling complaints.

Since our 1985 audit, the Commission has made major efforts to try to improve its efficiency and effectiveness. For example, since 1994, it centralized its investigation function in Ottawa and it revised its complaints management process to permit early identification of complaints that did not require investigation beyond obtaining basic facts.

To eliminate the backlog of complaints, the Commission requested and received a permanent annual funding increase starting in 1989-90 of about $411,000 for nine new investigators and a one-time funding of $400,000 in 1992-93. The Commission also internally reallocated about $1 million between 1992-93 and 1997-98 to reduce the backlog.

Because the challenges the Commission faces are fundamental and interrelated, attempts to improve the situation by focussing on revising the investigation process and spending more to reduce backlogs have not worked as well as expected.

The investigation environment poses major risks

The tasks facing the Commission and Tribunal are challenging by any measure. Thus, considerations for modifying the current system should take into account the environment and expectations that face these bodies. For example,

• The grounds of prohibited discrimination are increasing and are becoming more complicated.
• The Commission’s investigations form the basis for decisions involving fundamental human rights in an increasingly litigious and contentious environment.
• The courts have required the Commission to disclose more information to parties and have recommended that it provide reasons for its decisions.
• The current roles played by the Commission require a careful balancing of its social policy advocacy role with its role as impartial investigator in a manner that maintains the credibility of its impartiality.

There also has been a high turnover of Commission investigators. Since 1995, 15 investigators have left the unit that handles most complaints. It takes about a year for an investigator to become fully functional. At the time of the audit, 14 of the 22 investigators in the unit had less than a year’s experience. This situation contributes to delays in investigating complaints.

Conclusions of our audit

Parliament established the Canadian Human Rights Commission and the Human Rights Tribunal Panel to address fundamental concerns about human rights. These concerns need to be addressed efficiently and effectively.

The Minister of Justice has undertaken to conduct a broad review of the Canadian Human Rights Act. We agree that a broad review by Parliament is needed.

Because the challenges in addressing human rights complaints and the potential solutions are fundamental and interrelated, the problems cannot be solved piecemeal. And, they cannot be simply solved by providing more resources.

A set of carefully considered and integrated legislative and administrative measures is needed, including:

• periodic reviews by Parliament of the impact and relevance to the grounds of discrimination;
• clarification of the roles of the Commission and Tribunal, particularly the Commission’s mandate to promote human rights;
• development and adherence to standards, by regulation if needed, that safeguard the reliability, impartiality and transparency of its investigation, conciliation and decision-making processes; and
• immediate steps to train and retain an experienced investigative staff.

Alternative ways of addressing complaints also need to be established. For example, to reduce the number of complaints that need to be investigated, the Commission could use early, voluntary, third-party neutral mediation to try to resolve complaints. We believe this could substantially reduce the number of complaints that need to be investigated.

In some cases before the Commission, both complainants and respondents have substantial resources and expertise to present evidence and argue positions. Such parties may not need the Commission’s assistance. Allowing them to take their cases directly to the Tribunal or the Federal Court could make the system more effective. This could significantly reduce the amount of resources that the Commission needs to devote to such complaints. Allowing the parties to go directly to the Tribunal or the Federal Court could speed up the resolution of cases. If parties were allowed to go directly to the Federal Court the need for the Tribunal would have to be examined.

In sum, the adoption of these measures could free up substantial resources and allow for alternative ways to address human rights complaints efficiently and effectively.

Concluding remarks

In closing, I would like to reiterate my concern about the human and financial cost of the current system. Because we are dealing with fundamental human rights, I believe the issues that we have raised require immediate attention. Thus, I recommend that your Committee consider establishing a clear deadline for the Department of Justice to provide Parliament with specific legislation and other measures that may be required to address these issues.

Mr. Chairman, this concludes my opening statement. I would be pleased to answer your Committee’s questions.