Innovative Change Management: an alternative to legislative change

Introduction

The purpose of this paper is to outline a number of transformative changes that have taken place at the Canadian Human Rights Commission (CHRC) since 2002 to improve services to Canadians and strengthen management in all areas. These changes were based on a thorough reading and understanding of the opportunities envisioned in the Canadian Human Rights Act (CHRA). These opportunities in great measure address and exceed the desired benefits of a direct access model while avoiding significant pitfalls, and are manageable within the fiscal limits assigned by Parliament.

The Experience of the Canadian Human Rights Commission

Challenges

The CHRC is empowered by the CHRA to deal with complaints of discrimination in employment and in the provision of services within federal jurisdiction. In addition to its complaints-processing function, the CHRC can appear before courts and tribunals to represent the public interest in cases dealing with human rights issues. It also develops and conducts information programs to promote public understanding of the CHRA. For an outline of the human rights complaint system under the federal jurisdiction, see Appendix A.

Like any organization, over time the CHRC has faced many challenges in carrying out its mandate. In particular, the problems that were facing the CHRC in the late 1990s have been widely documented in a number of reports addressing its operations and future directions. The Auditor General’s report of September 1998 noted lengthy delays in complaint processing and cost overruns. This was followed by the 2000 report of the Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (the La Forest Report), which advocated a direct access model for human rights complaints. Other reports included the 2002 report of the House of Commons Standing Committee on Human Resources Development and the Status of Persons with Disabilities; the 2002 report of the Senate Standing Committee on Human Rights; and the January 2003 report of the House of Commons Public Accounts Committee.

The conclusion drawn from these reports was that the CHRC’s complaint process was too slow and cumbersome. This resulted in a chronic backlog that hindered the ability of the CHRC to carry out other areas of its mandate. This situation could not be sustained. Change was needed.

The Change Management Process

In 2002 the CHRC developed an agenda for change centred on four basic principles:

• Greater use of alternative dispute resolution, which can provide a non-adversarial forum that looks at needs, interests and solutions and can promote early healing;
• A complaints handling process that was more efficient, timely and cost-effective;
• New tools to identify and focus on those human rights cases and complaints that raise systemic or serious human rights issues and that have the greatest human rights impact; and
• A strengthened management infrastructure.

The goal of the new agenda for change, known internally as the Quantum Project, was to eliminate the backlog of cases by putting in place processes that emphasized early intervention of disputes before they become complaints, allowed mediation at all stages of the complaint and worked more collaboratively within the federal system for greater impact. By redirecting its resources more broadly, as envisioned in its legislation, the CHRC would be better positioned to focus more attention on broader systemic human rights issues. New areas of focus are discrimination prevention, research for new knowledge creation and regulatory initiatives.

Assessing the situation

The first step in the Quantum Project was to listen to what stakeholders and the public were saying. Both complainants and respondents were frustrated with the lengthy delays in processing complaints. Some employers and service providers were of the view that the CHRC appeared too complainant-friendly and lacking in objectivity. It became clear that the public wanted a human rights commission that would process complaints more quickly, with a greater focus on the public interest, systemic discrimination and discrimination prevention.

Facing the facts

Secondly, the CHRC took a step back and conducted a new analysis of its enabling legislation to better take advantage of all of the opportunities that it affords. Questions were raised such as, "Who does the CHRC represent? To whom is the CHRC accountable? What is the nature of the decisions made by the CHRC? What is the CHRC’s role before the Canadian Human Rights Tribunal, and is the CHRC required to attend all hearings before the Canadian Human Rights Tribunal?" These questions were important because they reflect the core understanding of the role and responsibilities of the CHRC as a public institution, representing the public interest, within the human rights framework.

Legislation-based, values-driven

Through dialogue with staff and other interested parties, a consensus emerged that the CHRC

• represented the public interest and not the personal interest of complainants or respondents in hearings before the Canadian Human Rights Tribunal ;
• did not make findings of discrimination;
• did not have to be present at all hearings; and
• when appearing before courts or tribunals, acted for neither complainants nor respondents, but rather in the public interest, and was accountable to the Canadian public through Parliament.

A new reading of the CHRA led to an understanding that the CHRC did not have a monopoly over human rights and that it was consistent with the furtherance of human rights that remedies be obtained in as many places as possible and as quickly as possible. It is of paramount importance that remedies be available quickly and in a meaningful way. In appropriate cases, such as those where the interests are mainly private, it may also be sufficient for the parties to a human rights dispute to participate cooperatively in its resolution in a forum with a close connection to the facts and the issues, such as the workplace itself, without the need for a third party. Workplace dispute resolution systems that include an opportunity for mediation are to be encouraged.

The CHRC also placed greater emphasis on section 2 of the CHRA, which, in setting out the statute’s objectives, makes it clear that there are no rights without responsibilities. In other words, complainants too have duties and obligations.

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

R.S., 1985, c. H-6, s. 2; 1996, c. 14, s. 1; 1998, c. 9, s 9.

As legal precedents are important and serve as guides for the interpretation of the legislation, the CHRC came to the conclusion that the public interest would be better served by focusing its limited litigation resources on cases having the greatest impact, such as those involving allegations of systemic discrimination and precedent-setting cases that can clarify the law for all Canadians. By doing so, the CHRC continues to represent the public interest as set out in section 51.

51. In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint.

R.S., 1985, c. H-6, s. 51; 1998, c. 9, s. 27.

Concrete changes

After taking stock of various assessments of the CHRC’s work, and reaffirming the values that support it, the CHRC embarked on the next phase of the Quantum Project: to develop and implement concrete changes aimed at improving the CHRC’s performance as a public institution with a legislative mandate.

Case Management

Changes to the CHRC’s case management system included the following:

1.  The CHRC created an Alternative Dispute Resolution service, which makes mediation available at any stage of the complaint process. Even before a complaint is filed, the parties are asked whether they are interested in mediation.

2.  The CHRC has the authority to refer complaints for mandatory conciliation at any time. New developments in this process include the opportunity for some cases to proceed directly to a Tribunal hearing without further investigation from the CHRC if an attempt at reaching a settlement fails. In other cases, an experienced human rights officer prepares an assessment of the complaint and offers options for settlement based on a new, comprehensive investigation report, submissions received from the parties, and the assessor’s own interactions with them. In other cases, the complaint will return to the Commissioners for further review if a settlement is not reached. The parties are encouraged to disclose the offers they have made, as permitted under the CHRA, and this information may be used by the CHRC in determining whether it is in the public interest to refer the matter to the Tribunal.

3.  The Intake Process

One of the most important reforms undertaken during the Quantum Project was the reform of the intake process for complaints. In 2005, the CHRC received 17,478 initial contacts from potential complainants through email and telephone. In order to deal with such a large number of potential new files, the CHRC made a number of changes to its pre-complaint services. Interdisciplinary teams triage complaints from the outset. Complaints are either accepted and redirected internally or referred back to an internal grievance or conflict management process in the department or company concerned.

Section 41 of the CHRA allows the CHRC to screen potential complaints to decide whether it will deal with the complaint at all.

41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;

(c) the complaint is beyond the jurisdiction of the Commission;

(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or

(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

Referral of human rights complaints to a grievance process is not only consistent with the fact that the CHRC does not have a monopoly over human rights issues, it is also consistent with recent Supreme Court of Canada decisions. In the Parry Sound¹ decision, the Supreme Court of Canada ruled that, as a minimum, human rights and other employment-related statutes are incorporated into all collective agreements. The CHRC is able to use section 41(1)(a) in appropriate cases to refer human rights complaints where there is an internal grievance procedure to address human rights issues.

 If a potential complaint meets the criteria of section 41, the parties are then given the opportunity to try to resolve the matter before a complaint is actually filed. Preventive mediation, which is now offered to parties in most cases, is carried out within a very short time-frame, and focuses on the complainant's main concerns.

Once a complaint is filed, the intake team will send a complaint kit to the individual so that he or she may draft his or her own complaint. This change in procedure has created time savings for CHRC in investigating the substantive issues raised in complaints. In rare circumstances where the complainant is truly at a disadvantage, CHRC staff will still assist in the drafting of the complaint.

4.  Multidisciplinary investigation teams were created to deal with complaints. While complaints continue to be assigned to individual investigators in accordance with the CHRA, the individual investigator now has the opportunity to formally discuss issues with colleagues, including other investigators, legal counsel and policy advisors. This leads to more consistency in report writing and resolves expeditiously questions that might otherwise delay the investigation. It also helps to identify systemic issues at an early stage. As these teams specialize in specific grounds of discrimination, investigators develop specialized expertise, and are able to use their experience to deal with new cases more thoroughly and expeditiously. Since the teams review all complaints on the particular ground, they are able to identify trends or emerging issues, in order to inform the CHRC’s policy development, research work and prevention initiatives. In this way, the concerns that are brought to the attention of the CHRC by members of the public become a valuable source of information for specific areas where research and education activity could help in resolving broader social issues, of which complaints are a symptom.

5.  The development of a new streamlined investigation report form. The new format helps to guide investigators in focusing the investigation and report writing on issues that are relevant to the complaint, thus clarifying the issues for all parties—complainants and respondents, as well as Commissioners.

6.  To further increase the early resolution of cases, the CHRC launched a pilot preliminary assessment project early in 2005. Preliminary assessment involves a human rights specialist helping parties to a dispute clarify and narrow the issues just after the complaint is received. This may lead to a settlement, an agreement to enter mediation, a non-confidential report that will speed up investigation, or referral to a more appropriate grievance or review procedure.

7.  The CHRC follows up on settlements to determine whether agreed-upon remedies are implemented. Settlement monitoring is a process by which all settlements approved as a result of various forms of alternative resolution approaches are monitored by the CHRC to ensure implementation.

8.  The CHRC established a council of eminent jurists. Comprised of former Supreme Court of Canada justices Gérard La Forest and Claire L’Heureux-Dubé, as well as former Chief Justice of the Ontario Court of Appeal Charles Dubin and former Alberta Court of Appeal Justice Roger Kerans, the Advisory Council advises the Chief Commissioner on alternative dispute resolution as it relates to human rights and public interest issues. The CHRC wishes to acknowledge the work of the members of the Council in helping it to clarify principles and improve its processes.

A New Litigation Strategy

At the same time as it was improving the case management system, the CHRC was developing a new litigation strategy. The new strategy confirmed that, in all litigation matters, whether before the Canadian Human Rights Tribunal or in appellate courts, the role of the CHRC is to represent the public interest and not the interests of the complainant or respondent.

Historically, although not required by statute, the CHRC participated fully in all hearings before the Canadian Human Rights Tribunal. This practice consumed a significant amount of the CHRC’s resources and drew criticism from some respondents who felt that the CHRC was too closely aligned with the interests of complainants.

As part of its new litigation strategy, the CHRC now determines on a case-by-case basis the scope and nature of its participation after assessing a number of factors, including whether the case raises broad policy issues, relates to major policy concerns, or raises new points of law. As a consequence, while still attending and fully participating in all pre-Tribunal mediations, the CHRC now focuses on participating in hearings before the Canadian Human Rights Tribunal that will have the greatest human rights impact.

This new litigation strategy allows a broader deployment of CHRC legal staff. They now deal increasingly with cases early in the complaint process, provide full legal services to all areas of the CHRC’s activity, and help shape new initiatives such as the prevention and proactive projects described below.

A good example of the application of this new strategy occurred recently in the case of Gian Sangha v. MacKenzie Valley Land and Water Board. The complainant, who was East Indian and a qualified engineer, filed his complaint with the CHRC, alleging that he had been eliminated from a job competition due to his race. As a result of the team investigative approach, the CHRC was able to identify early in the process broad, systemic issues of discrimination that went beyond the complainant’s personal experience. In this case, the CHRC presented a complaint before the Tribunal about discrimination against highly educated visible minority immigrants. This particular case dealt with the differential impact on this group of the employer's qualification criteria, which excluded candidates on the basis of over-qualification. The CHRC retained an expert who gave evidence that recent immigrants were over-represented in this category. For the first time, a tribunal or court has recognized that refusing to hire a job applicant on the basis that the candidate is deemed to be over-qualified for the job has a discriminatory impact on visible minority immigrants. What started out as a complaint based on overt racism developed into a very sophisticated analysis of a problem of systemic discrimination based on the barriers to employment faced by highly trained visible minorities.

Discrimination Prevention

In 2004, the CHRC established its new Discrimination Prevention Program as one of its new tools to ensure that the backlog of complaint cases never recurs. Through this program, the CHRC works with federally regulated employers and service providers to assist employers and service providers in

• preventing discrimination by encouraging managers to be aware of their responsibilities under the CHRA and the Employment Equity Act;
• putting in place and supporting human rights-related policies and practices;
• establishing and maintaining effective mechanisms to address complaints internally; and
• continuing to deal effectively and rapidly with human rights concerns.

The CHRC has begun negotiating and signing memoranda of understanding (MOUs) with employers under federal jurisdiction that are willing to work with the CHRC to prevent discrimination and resolve complaints effectively and quickly in the workplace. The MOUs establish a formal context in which the CHRC can consult with the management teams of these organizations to identify the main areas of concern and propose strategies to deal with them. Solutions could include: creating new policies or changing existing ones; sharing best practices through human rights training and information; and developing instruments to assist employers, such as case studies, presentations, posters and interactive teaching tools. To date, 11 MOUs have been signed covering more than 170,000 employees under federal jurisdiction. There are greater chances of eliminating ignorance and discriminatory behavior, policies and practices when many parties share common experiences and work towards a common goal. By working in consultation with the CHRC, stakeholders are able to renew their commitment and achieve results in support of non-discriminatory workplaces, and reach individuals who would not otherwise be reached through the efforts of the CHRC acting on its own.

Under its prevention program, the CHRC has also recently established an Employer Advisory Committee comprised of representatives from MOU signatories that are able to provide valuable insights into the potential impacts and effectiveness of the CHRC’s practices and new initiatives.

CHRC’s Knowledge Centre

The reduction of complaints has allowed for the re-allocation of resources towards other important areas within the CHRC’s mandate, including research, policy development and strategic initiatives. In November 2005, the CHRC established a Knowledge Centre in response to its legislated obligation to encourage the advancement of human rights and freedoms by carrying out research and studies under the CHRA. The Centre also develops policy, provides internal legal advice, and gathers and analyzes statistics in support of research, policy development and management decision-making. It also assumes responsibility for regulatory affairs, which includes the development of regulations and guidelines related to both the CHRA and the Employment Equity Act.

The research initiatives bring together CHRC specialists and human rights experts to guide the CHRC’s work and inform employers, service providers, unions, advocacy groups, stakeholders and the Canadian public in matters relevant to human rights. Projects undertaken by the Knowledge Centre include: participation at the United Nations in the development of an international convention on the rights of persons with disabilities, and a report on the state of women in federal penitentiaries. Through the creation of the Strategic Initiatives Branch within the Knowledge Centre, the CHRC has produced reports dealing with access issues for those who are deaf and hard of hearing and with greater human rights protections for Aboriginal people. The Strategic Initiatives Branch also organizes conferences and deals with topics such as hate on the Internet.

Going Forward in the Federal Jurisdiction

The current model is a blend of prevention, dispute resolution and knowledge development. All three areas must work in concert. As the diagram below indicates, optimum operational capacity occurs when the three distinct disciplines converge, thus minimizing time and costs in the process.

The Impact of the Quantum Project

The Quantum Project was undertaken without any legislative amendments, job loss, or increased funding. The changes made to CHRC’s case management system have had a great impact on the number of cases in the inventory, as highlighted below. The average age of complaints has been reduced from a high of 25 months in 2002 to 8.3 months in September 2006.

The total number of complaints in the inventory has dropped to 684 in September 2006 from a high of 1,287 in December 2002.

Only 5% of the CHRC’s complaints are over two years old today, compared to December 2002, when 27% of the complaints were older than two years.

Increased use of alternative dispute resolution and prevention measures has reduced the workload in the case management area, allowing for a shift in resources to other areas of the CHRC’s mandate, such as research and policy development, and discrimination prevention.

CHRC program statistics tell only part of the story. By working with stakeholders, the CHRC is helping to both increase human rights awareness and strengthen internal redress mechanisms across the federal system so that employees and others can have access to human rights protection through processes that are closer both in time and in proximity to the individuals involved.

The La Forest Report

In June 2000, the report of the CHRA Review Panel, Promoting Equality: A New Vision, was released. The panel, chaired by the Honourable Gérard La Forest, former Justice of the Supreme Court of Canada, made many recommendations to reform the federal human rights system. With the exception of the recommendation for a direct access model, the recommendations in the report relating to the CHRC have been largely implemented through management changes and a new business model.

For example, the report included a recommendation that internal responsibility systems for all employers and service providers be made mandatory, and that those that were already in existence be strengthened. This is being achieved through the work of the CHRC’s prevention program and the signing of MOUs with federal employers and service providers.

The report also recommended that, where there is an effective internal responsibility system that can deal with human rights raised in a case, the Tribunal should dismiss the claim. A similar result has been achieved through the stricter application of section 41, which allows the CHRC to decide not to deal with a complaint for which a grievance or review procedure is otherwise available.

The La Forest report also recommended that the importance of the CHRC’s mandate to promote and educate on human rights be emphasized, and that the CHRC be more active in this area. As a result of our new business model, the CHRC is making significant progress in this regard through the work of both the Discrimination Prevention Branch and the new Knowledge Centre.

Good management has focused on non-legislated opportunities to implement and improve efficiency and effectiveness in reducing discriminatory practices in the workplace.

Benefits of Human Rights Commissions In Complaint System

A strong voice for the public interest

Only an independent public body can represent the public interest. Some academics argue that this role can be filled by private sector lawyers. Lawyers in private practice are retained by clients whose interests they are sworn to represent. Lawyers working for advocacy groups are sworn to represent the interests of the advocacy group. Advocacy groups speak on behalf of the members or issues they represent. Only an independent public body such as a human rights commission can represent the public interest.

Granting a human rights commission the ability to intervene only at a hearing in systemic cases deprives society of the intervention of a public interest advocate at the earliest opportunity, sometimes even before a complaint is filed and opposing positions have become entrenched.

In addition, it deprives society of the participation of the CHRC in cases that, while not of a systemic nature, can have important precedential value in shaping and explaining human rights principles for all Canadians.

Focus on mediation, not litigation

Mediation and other non-adversarial forms of dispute resolution are now highly regarded, in many situations, as preferable to conflict-laden court-like processes.

The early involvement of a human rights commission in a dispute affords complainants and respondents the opportunity to participate in mediation at an early stage of their conflict. Negotiated settlements are reached when all parties to a dispute are ready to come to an agreement. This may happen at any stage of a complaint. One or more parties may be ready to engage in open and respectful discussions at any time, but if all of the parties are not ready at the same time, a settlement will not be possible. The precise moment when all parties are ready to negotiate may happen before a complaint is filed, after the complaint is filed but before an investigation, after a response is received, after the investigation report is written, after a referral for a hearing or on the eve of or during a hearing. Changing circumstances and the passage of time, among other things, will have an impact on when a mediated settlement will occur. The parties themselves will choose the time.

It is in the public interest that the parties be offered the opportunity to attend mediation at each step prior to litigation. A model for complaint resolution that affords direct access to a judicial or quasi-judicial process removes multiple opportunities for early settlement.

While necessary in appropriate cases, litigation can be lengthy and costly and may not be the best tool in all circumstances. Despite the best of intentions, complicated rules and motions can create a system that is not easily accessible without the benefit of a lawyer. Document disclosure requests and lengthy cross-examinations can take their toll on individuals. Increased emphasis on informal internal workplace dispute resolution systems, as an available alternative to formal litigation proceedings can, in appropriate cases, allow for earlier resolutions that are the product of bona fide discussion and exchange of ideas.

Screening complaints

Given the high number of complaints, a screening function will always be necessary. Screening begins with pro-active prevention efforts that are designed to prevent complaints from being filed in the first place. A human rights tribunal, whose only connection to the parties is through a formal complaint, has neither the mandate nor the opportunity to act proactively in this regard. Furthermore, caseload analysis helps the CHRC to keep its finger on the pulse of human rights issues encountered by members of the Canadian public, and fosters the CHRC’s ability to develop research, policies and tools to help employers and service providers avoid obstacles to achieving equality before a complaint becomes necessary.

The filing of a complaint is a public act in which both the complainant and the respondent lose all rights to privacy. Complainants will no longer have the benefit of discreet interventions, and respondents will be vulnerable to negative publicity no matter how frivolous or unmeritorious the complaint. In the federal system, a complaint does not become public until the CHRC requests the appointment of a tribunal to inquire into the complaint. Throughout the entire period during which the complaint is in the hands of the CHRC, the parties are able to negotiate confidentially. This is perhaps an under-recognized benefit of maintaining the screening role. Once a complaint becomes public, the stakes are raised and positions become further entrenched, thus reducing the possibility of a negotiated settlement.

Conclusion

The Canadian Human Rights Commission has succeeded in rejuvenating its human rights business model to be in line with the public interest as well as achieve the key benefits of a direct access model. The model is also affordable and sustainable within the fiscal limits set by Parliament.

1 Parry Sound (District) Social Services, Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), [2003] S.C.J. No. 42.

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