CAW Submission to the Canadian Human Rights Act Review Panel: 2000
The National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) is Canada's largest private sector trade union. The CAW-Canada represents upwards of 238,000 workers, who are employed in a broad range of industries and services, including automobile parts production and assembly, aerospace manufacturing and assembly, electronics manufacturing, telecommunication services and manufacturing, mining, air, rail, road and marine transportation services, fisheries, and hospitality services, amongst others.
Next year, the CAW-Canada celebrates its fifteenth anniversary as an independent Canadian Union.
These past fourteen years have witnessed the steadily growing presence of our Union in federally regulated workplaces. Today, the CAW-Canada represents over 40,000 workers employed in the federal jurisdiction. Specifically, in the inter-provincial transportation sector, the CAW-Canada represents approximately 18,000 workers in the rail industry, 9,000 employees in the airline industry, 4,000 workers in the motor transportation industry, and 2,000 members in marine transportation services.
In addition, the CAW-Canada represents workers in other federally regulated economic sectors, such as those persons employed by AT&T Canada (telecommunication services) and Royal Oak Mines Limited (mining in the Northwest Territories). Our Union has also developed close ties of solidarity with our brothers and sisters working in the Canadian Civil Air Navigation System, who are currently represented by the Canadian Air Traffic Controllers Association, and the Air Traffic Specialists Association of Canada.
We commend the Federal Minister of Justice, on behalf of the Federal Government, for the initiation of a review of the Canadian Human Rights ActAct"), with the objective of making the statute a more effective instrument in the defence and assertion of human rights, as well as a bulwark in the fight against prohibited discriminatory practices in Canada.
We also welcome and appreciate the invitation of the Canadian Human Rights Act Review Panel made to our Union, and the public at large, to make this submission, setting out our views as to how the Act may be improved to facilitate the struggle for human rights and dignity in our workplaces and communities across Canada.
the Act has not been the subject of a thorough and profound public and legislative review since it was enacted in 1977. Amendments to procedural and substantive aspects of the Act have been made from time to time by Parliament, but it has not appeared that these legislative changes have been part of a "holistic" appreciation of the statute, in its totality, as an instrument in the struggle for human rights.
There is no question that the nature and structure of social and economic activity within the Federal sphere has changed dramatically in the past twenty-two years. There has been:
(a) Technological change including advances in data and information transfer (ie. the Internet);
(b) Increased corporate concentration (ie. the pending merger of our two major airline employers);
(c) Deregulation in the transportation, telecommunication, and financial sectors;
(d) Increased immigration to Canada from non-European companies and consequently, greater participation in the workforce by members of visible minority communities;
(e) Increased participation of women in the Canadian labour force;
(f) Higher average unemployment rates, and greater pressures upon family incomes necessitating the presence of two income earners in one family to simply sustain past standards of living; and
(g) Greater societal recognition of the human rights of gays, lesbians and bisexuals, with the concurrent need to protect and advance the progress made in this area.
Each of these factors, and others, continue to have an enormous impact upon the lives of Canadian workers and their families. We are obliged to critically examine how these factors impact upon the protection and advancement of human rights in Canada, and the struggle for dignity of working people across this country.
Our Union has been at the forefront of the struggle to assert and achieve human and equality rights for workers in Canada. We have achieved many significant gains in collective bargaining. Attached to the end of our brief is a chronology of collective bargaining breakthroughs made by the CAW-Canada in the post war years.
In the early 1980's the CAW-Canada took the lead at the bargaining table in an effort to facilitate the entry and participation of women workers in major automotive assembly factories by bargaining paid maternity leave and child care. In 1984, affirmative action programs were negotiated by our Union, again, with a view to facilitating the hiring and retention of workers from all backgrounds in major corporate workplaces. In 1992, same sex benefits were achieved in discussions with major corporations, and the following year, the Big 3 automakers agreed to fund union sponsored full-time employment equity representatives and a women's advocacy program. All of these efforts demonstrate the commitment we have made to make progress on behalf of our members in the area of human rights. Collective bargaining efforts are still just part of the picture. Our Union is active politically before, during, and after elections. Currently, for example we are participating in a nation wide campaign for public, broad based, and affordable daycare. We are active in the international scene through, amongst other things, the agency of a charitable corporation called the CAW Social Justice Fund, which contributes to many projects in the developing world, which aim to provide basic human rights; such as shelter, potable water and literacy support programs.
In the brief that follows, we make a series of recommendations which we respectfully suggest will advance the cause of human rights in federally regulated services and workplaces across Canada, and make the enforcement of human rights guarantees more effective and meaningful.
We recognize that in order to realize some of our suggestions more money will be required to fund the operations of the Canadian Human Rights Commission ("the Commission"), and a Federal Human Rights Tribunal ("the Tribunal"). We urge this Panel to convey to the Federal Government in the strongest and clearest terms possible, the urgency of new and more funding for the budgets of the Commission and the Tribunal. We urge the Panel to communicate to the Federal Government the importance of our Parliament making a visible, long term secure and positive financial commitment to the Commission to permit it to increase the engagement of qualified staff at fair rates of compensation, acquire the necessary infrastructure, to fulfill its mandate, and particularly permit the Commission and its staff to expand its efforts to educate the citizens of Canada, with respect to the primacy of human rights in our social interactions.
Unfortunately, the annual reports of the Commission represent, in our respectful opinion, a sorry indictment of the record of the Federal Government since 1992, a year before the election of the Liberal party to power. In 1992, Parliament granted the Commission a budget in the amount of $19,202,992. Thereafter, the Commission's budget fell, in absolute terms, for five consecutive years to a low of $15,420,252. In 1998, Parliament did grant an improvement to the Commission's budget to the sum of $17,943,000, still, $1.25 million dollars less, in absolute terms, than what was made available in 1992. Cutbacks have forced the Commission to close regional offices and reduce staff. Cutbacks have also contributed to what regrettably appears to be an intractable problem of delay in the disposition of complaints made to the Commission. We understand that it takes an average of three years before a complaint is put before the Tribunal. Professor Ken Norman of the College of Law, University of Saskatchewan put it this way in a recent article entitled "Through a Glass Darkly, Concurrent Jurisdictions in Workplace Human Rights Justice Systems" (1999), 7 C.L.E.L.J. No. 2, page 288:
"The current unhappy reality is that human rights investigation, conciliation and adjudication procedures are badly, perhaps irretrievably jammed up due to structural and funding problems. Canada received a sharp reminder of this on December 4, 1998 from the U.N. Committee on Economic, Social and Cultural Rights in its Concluding Observations on Canada's Report:
...enforcement mechanisms provided in human rights legislation need to be reinforced to ensure that all human rights claims which are not settled through mediation are promptly determined before a competent human rights tribunal, with the provision of legal aid to vulnerable groups.
The 1994 Report on Human Rights in British Columbia, written in the aftermath of extensive public hearings, found that:
[A]...common concern raised at almost every meeting was the time it takes to get a human rights claim through the present system. Individuals and community groups said that expecting a complainant to endure discrimination for this long is unfair. Business groups said that a lengthy process is expensive and that the process can damage the reputation of an employer before any hearing takes place. Many participants also pointed out that this delay often deters people from filing a claim. Moreover, it makes an investigation more difficult, since key witnesses may have moved away and other witnesses may have forgotten key facts.
This last point captures the gravity of the problem. The delay involved in processing human rights complaints through the referral to adjudication at the tribunal stage is too often a matter of years. The federal Auditor General reported in September of 1998 that the CHRC's backlog problems were not being eliminated despite considerable efforts towards that end:
The Commission consider a complaint to be 'backlogged' if it is still being investigated nine months after having been signed. Between 1991 and 1995, the backlog ranged from about 62 to 72 percent of the commission's open cases. In 1997, about 48 percent of the Commission's 900 open cases were in the backlog."
The social, demographic, and economic evolution of Canadian society has produced more, not less challenges in the area of human rights since 1992. There is an increased need for the services of a Federal Human Rights Commission, and a related Tribunal for the enforcement of these important guarantees. Cutbacks to the bodies which are mandated by Parliament to enforce and protect human rights in the Federal sphere, in the face of sustained resistance in some corners of society to the multi-racial and multi-ethnic character of Canada are simply unacceptable. We respectfully submit that his Panel ought not to be restrained in making this point to the Federal Government. This message must be delivered to Parliament with vigour and clarity and we submit, with respect that the Canadian Human Rights Act review panel has an excellent opportunity to deliver this message to the desk of every member of the House of Commons.
We may, through our collective efforts, trigger our elected representatives in Parliament to write a Human Rights Code in the federal jurisdiction which expresses the highest values and aspirations of Canadians. Yet wouldn't it be an exercise in self delusion, and somewhat hypocritical, if Parliament failed to support the machinery by which the expression of our highest values are given concrete application and enforcement. Further, if we fail to financially support the effort by which Canadians may be educated in the primacy of human rights, we risk abandoning the future of our civil society to those persons who wish to denigrate others by virtue of their race, religion, ethnicity etc. thereby ignoring or indeed reversing one of the greatest lessons of the twentieth century, which is that supporting the human rights of all persons creates a more peaceful and just civil society.
Scope of the Act
The purpose clause of the Canadian Human Rights Act provides a satisfactory statement of the intention of Parliament that all individuals in Canada should be treated equally, without regard to prohibited grounds of discrimination such as race, national or ethnic origin etc. Caselaw has interpreted the purpose clause to be the "articulation of Parliament's mandate of promoting equal opportunity unhindered by discriminatory practices" . However, we respectfully submit that the purpose clause may and should be updated to reflect more sophisticated and current thinking in human rights law. The experience of women, disabled persons, and members of visible minority communities has demonstrated that "equal treatment" (ie. the apparent equal application of neutral rules to differently situated persons) may inevitably lead to adverse affect discrimination upon prohibited grounds. The thrust of current human rights law is to insure that equality of "effect" as well as equality of treatment should be recognized as fundamental to any concept of equality. This development should be more clearly reflected in the purpose clause of the Act. The focus of the current purpose clause appears to be on the status of the individual, qua individual, and his/her right to fair treatment. Undoubtedly, this ought to be a primary focus of human rights concerns. However, what is lacking in the purpose clause is a supplementary perspective on the almost intractable problem of systemic discrimination whereby significant groups face barriers to advancement because of certain institutional rules. For example, the plight of aboriginal Canadians illustrates significant systemic barriers to educational and job opportunities that require the recognition that a simple declaration of an individual's right to equal opportunity, without more, will not advance the status of aboriginal Canadians in society.
Accordingly, we respectfully suggest that the purpose clause of the Act should recognize that the attainment of true equality:
(a) May call for different treatment of individuals in order to address differently situated groups of persons2;
(b) May call for the abolition of systemic discrimination which abridges advancement towards true equality.
We respectfully submit that it is appropriate to supplement the enunciation of prohibited grounds of discrimination in the Act by adding a positive obligation upon all in society to insure equality. To be clear, this positive statement should not displace or be a substitute for the clear ban (stated in negative terms) upon the commission of discriminatory practices. In our view, a simple statement of a person or corporation's positive obligation to insure equality alone would make it more difficult rather than easier to apply and enforce the Act. A respondent could always argue that some effort was made by him/her/it to meet their positive obligation to insure equality. A respondent could submit that such an effort was sufficient to meet the positive obligation. A simple positive statement, in this respect, would not give an adjudicator or the Commission a benchmark against which to properly measure the application of the law. If positive obligations are to be the statutory vehicle alone by which discrimination is addressed (ie. without prohibited grounds of discrimination stated in negative terms) we are simply concerned about how anyone could reasonably define the standards of conduct which will be sufficient to meet the law.
Primacy of the Act
It is appropriate, in our view, that the purpose clause of the Act refer to Canada's international human rights obligations. We submit that Canada is bound to the following human rights obligations:
(a) Universal declaration of human rights, U.N. document A-810 (1948);
(b) International covenant on civil and political rights, 999UNTS171 (1966);
(c) International covenant on economic, social and cultural rights, 993UNTS3;
(d) International convention on the elimination of all forms of racial discrimination, 660UNTS195;
(e) International convention on the elimination of all forms of discrimination against women, UNGRA Resolution 34-180GAOR 34th Session and;
(f) International convention on the rights of the child (ratified by Canada on December 13, 1999 as per Regina v. Sharp (1999), 175 D.L.R. (4th) 1)
Because Canada has agreed to bind itself to these international conventions, Parliament, our judiciary and Human Rights Administrative Tribunals ought to look to these covenants for guidance how to give fuller meaning to, and apply the human rights enshrined by Parliament in a liberal, progressive, and remedial fashion. In our view, the judiciary in Canada has, on occasion, looked to Canada's international obligations for direction as to how to apply the Charter of Rights and Freedoms in a progressive fashion, and this approach is commendable.
The Ontario Human Rights Code has a provisions which establishes the primacy of human rights legislation within the appropriate Provincial jurisdiction. Section 47(2) of the Code states as follows:
"Where a provision in an Act or Regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or Regulation specifically provides that it is to apply despite this Act."
British Columbia, Manitoba, P.E.I. and Alberta have similar primacy clauses in their respective statutes. In our view, a similar provision would be desirable within the Act. Further, a similar provision would be consistent with the directions set out by the Supreme Court of Canada. If it is found that a federal law authorized a discriminatory practice, it is likely that the same law is in violation of the Charter of Rights and Freedoms. In this respect, we submit that it is proper that the defence of the impugned law be undertaken according to the same principles as found within section 1 of the Charter. In this way, there is a judicially defined, recognized and consistent standard of defence for impugned discriminatory laws or regulations. However, we do not suggest that a Human Rights Tribunal ought to have the power to strike down legislation; rather, the Tribunal should have the power to interpret, and/or apply, or choose not to apply, certain federal laws insofar as it is necessary to arrive at a resolution which is consistent with the Act. In this respect, the Act will not have complete Constitutional status, something which is reserved only for the Charter of Rights and Freedoms.
In our respectful submission, one ought to be able to challenge statutes and regulations that deny employment or services etc on prohibited grounds either in the course of human rights complaint proceedings, or in a separate application before the civil superior courts. Neither forum ought to have exclusive jurisdiction. Generally, however, we accept the practical proposition that challenges pursuant to the provisions of the Act generally should be raised first within the human rights complaint process, in order to build an appropriate record which may be used by a reviewing court, if necessary. In our view, it would be helpful if the now permanent and expert Human Rights Tribunal was given the opportunity to apply its qualifications of expertise, experience and interest in, and sensitivity to human rights issues in order to address any such challenge. Parliament has entrusted the responsibility of applying the Act, to the Commission and a new permanent Tribunal, and further, Superior Courts ought to take cognizance of Parliaments intention in this respect. There may be exceptions however when proceeding directly to a Superior Court is appropriate, particularly when a challenge to a federal law or statute under the Act is combined with a challenge under the Charter.
We respectfully submit that three new grounds of prohibited discrimination ought to be added to section 2 and section 3(1) of the Act, namely, "political affiliation/belief", "disadvantaged social condition" and "conviction for a criminal offence unrelated to the essential duties of one's employment"?
We also suggest that the Panel should recommend to the Federal Government the urgency of codifying in statute form, (preferably the Act) every person's positive right to privacy, thereby giving recognition to a person's freedom from intrusion not just from government action, but also from the actions of private entities in society, such as large corporate organizations armed with sophisticated electronic and data technologies.
Disadvantaged Social Condition
"Social condition" is a prohibited ground of discrimination in the Province of Quebec, pursuant to section 10 of the Quebec Charter of Rights and Freedoms. We respectfully propose that Parliament ought to incorporate this ground as a prohibited ground of discrimination, as a progressive step forward in the evolution of human rights in the federal sector, and, further, as a meaningful signal and direction for the benefit of Provincial Governments.
We propose that the word "disadvantaged" be added to the term "social condition" to permit Parliament's intention to be abundantly clear: ie. that those persons most vulnerable to discriminatory practices due to their disadvantaged position in society ought to be protected from discrimination. The intention of the provision is to protect the afflicted, not comfort anyone else.
Social condition may be considered as a person's rank, place, or position in society as a result of one's birth, income, education or occupation.
A decision of the Quebec Court of Appeal in a case called Quebec (Commission) des Droits de La Personn v. Whittom  A.Q. 2328 (May 28, 1997) provides positive guidance as to how this new prohibitive ground of discrimination may assist persons most disadvantaged in Canada. In this case, certain landlords refused to lease an apartment to the complainant because the complainant had limited income. The complainant was dependent on social assistance. The Quebec Human Rights Tribunal found that the complainant, despite her dependency on social assistance, had regularly and reliably paid her previous monthly rent, which was only $10.00 less than the rent asked for by the respondent landlords. The respondent landlords made no individualized assessment of the complainant's ability to pay the required rental. The Court of Appeal found that on these grounds, the complainant had been the victim of adverse effect discrimination on the basis of her "social condition". We submit that this reasoning ought to support a statutory rule to the same effect in the Act. Persons in need of protection include not just those who are in receipt of social assistance, but also homeless persons, the unemployed, and persons with limited educational qualifications or opportunities. There are several large institutions in the federally regulated sector who ought to be bound by a rule prohibiting discrimination against socially disadvantaged persons namely, banks, telecommunication services (Bell etc), transportation companies (ie. bus companies), and cable tv companies, and as well of course the Federal government itself.
Persons on social assistance, or persons without a fixed address must be guaranteed access to all of the services available to the public, without fear of the adverse treatment that may be applied to them due to their disadvantaged social condition.
Political Affiliation / Belief
The prohibited ground of discrimination numerated as "political affiliation/belief" is set out in the Human Rights Codes of Prince Edward Island and Nova Scotia.
Specifically, in Nova Scotia, sections 5(1)(d) and (u) prohibited discrimination on the basis of political belief, affiliation or activity. We see such an amendment to the Act as a forward looking change which is entirely consistent with our concern that persons who are disadvantaged in society be protected from those who benefit from greater wealth, and control of the levers of power in Canada. While one might at first glance consider that the aim of such an amendment is to restrain the power of the state, our concern goes well beyond that problem. We focus as well on the vast power of corporations to deny employment or services to persons who they identify as holding political views antithetical to the interests of the corporation itself, or the corporate class in society. Generally, though not exclusively, it is persons who are disadvantaged, under privileged, or out of power, who contest the way things are in society, and at the same time, it is these same persons who are vulnerable to a discriminatory practice made by those who are in power. We will be candid about our concerns. Historically, in Canada, it is those persons who have been active in progressive left wing politics who were subject to unlawful pressures due to their political beliefs. We recall the post-war period when affiliation with left wing parties or social movements lead to job loss, or economic dislocation for many in Canada. What was known as the McCarthy era in the United States had its own reflection in Canada. Persons who non-violently expressed their support for left wing causes, or indeed for the interests of the U.S.S.R. which had just finished fighting a common enemy as an ally with Canada, were subject to threats, and improper coercion.
In the late 1960's and 1970's there was a real risk that those persons who supported the cause of independence for Quebec were subject to discriminatory practices within federal institutions and/or employers. An inquiry into practices of the RCMP, produced evidence of the theft of membership lists pertaining to the Parti QuZbZcois, barn burning and police infiltration in a lawful political party etc. These efforts pointed to the potentially precarious status of those persons who supported a non-violent option for the Province of Quebec, when 30 years ago the sovereignist movement first gathered strength.
As we look down the road, it is entirely possible that future political movements will arise and cause controversy, and as a result, protection of those who genuinely hold political beliefs, or make political affiliations which are lawful should be afforded due protection.
Record of Conviction if Unrelated to Essential Duties of Employment
Currently, the Act includes as a prohibited ground of discrimination "a conviction for which a pardon has been granted".
In our respectful submission that ground ought to be expanded at least in the employment context to provide that no discriminatory practice is acceptable if it is based on the prohibited ground of a conviction, if the conviction itself is unrelated to the essential duties of the job sought or held.
It is our suggestion that the Act should follow the direction of the human rights statutes in British Columbia, Quebec, and Prince Edward Island where such a standard is in place. While we recognize that the issuance of a pardon offers some confirmatory proof that a person has rehabilitated him/herself since his/her conviction, the critical issue remains whether or not any person who suffers a conviction for a criminal offence should in any event be disadvantaged indefinitely in his/her pursuit of a normal rehabilitated life. If the conviction registered has nothing to do with the essential duties of the job held or desired by the complainant, why should he/she be left unprotected because of something they may have unwisely done years ago. Further, frequently, the credibility of the person who has suffered a conviction in court, is not an issue, because the person may have plead guilty to the offence, recognized his/her responsibility, without misleading anyone. In our view, no appreciable risk is undertaken by an employer in a situation where the applicant for employment or incumbent has a conviction which when reasonably viewed, does not pertain to the performance of the job. Further, and in any event, a bona fide occupational requirement defence will be available to any employer in the context of a human rights complaint in which a criminal conviction is relevant.
The effect of these new grounds would be to expand the protections offered by the Act. Prohibited discrimination on the basis of these new grounds would be consistent with the reasons underlying existing grounds of discrimination. For example, precluding discrimination on the grounds of political beliefs/affiliation is akin to the prohibition against discrimination on the grounds of religious belief or creed, the latter as expressed in some provincial jurisdictions. A truly and honestly held political belief can be as integral to the character of a person as any religious belief. Similarly, adding the new ground of "disadvantaged social condition" reflects the proposition that, a persons' social condition renders that person more vulnerable to discriminatory and adverse treatment, and in many occasions, is an essential characteristic of that person which cannot be easily changed, like one's disability or marital status. These new grounds should not be strictly defined other than in the terms noted above. Parliament ought to entrust the responsibility of fleshing out the meaning of these new grounds of discrimination to the expert Tribunal and Commission established by the Act.
We do not suggest that the Act ought to provide an open list of grounds of prohibited discrimination pursuant to which the Commission or a Human Rights Tribunal may enumerate supplementary grounds. Fundamentally, enumerating grounds for discrimination in a federal statute is the responsibility of Parliament. There is a risk that the Commission and the Tribunal may lose some legitimacy in the eyes of the public if it is seen to be acting legislatively.
In today's economy, businesses and services are reconfigured by mergers, sales, transfers of assets, etc at an unprecedented rate. Air, rail and road transportation services have been deregulated. Telecommunication companies appear, are reshaped, and merged at a regular pace, as they respond to new technologies and demands of the market. Our major Canadian banks attempted to merge recently and were rebuffed by the Minister of Finance on behalf of the Federal Government principally because of the political pressure exerted by the Canadian public in reaction to the prospect of such an out sized concentration of financial assets. But what will the shape of the banking industry be in the next ten to fifteen years? Is it reasonable to think that the pace of the disposition of businesses in the federal sphere will slow down? To the contrary, there is reason to believe that federally regulated businesses and services will be bought and sold, divided or amalgamated at the same or faster pace than we have witnessed recently.
The CHRA does not expressly contemplate and deal with the prospect of the sale of a business occurring within the chain of events that commences with the commission of a discriminatory practice, and ends with a finding of liability pursuant to section 53. Certain sections of the Act, however, appear to preclude the pursuit of a remedy against a successor employer. For example section 53(1) of the Act empowers a Federal Human Rights Tribunal to make an order against "the person found to be engaging or to have engaged in the discriminatory practice". The wording of this section may give rise to the conclusion that a purchaser of a corporation which committed the discriminatory practice could not be made subject to a remedial order even if it has otherwise succeeded the predecessor company which as been found liable. If a sale of a business occurs after the vendor has already committed its discriminatory practice, it is essential that the successor employer be made a full respondent party to the complaint, and be liable to obey any remedial directions that may ultimately be issued by a Federal Human Rights Tribunal (ie. reinstatement, compensation etc.).
Successor corporations from both the labour relations and civil law perspective step into the shoes of the predecessor corporation, and frequently are seen to assume liability of the predecessor entity. For example, while labour relations statutes in all jurisdictions recognize the assumption of obligations defined by a collective agreement in the course of a sale of a business, we respectfully submit that arbitrators have also found that successor employers may be held liable for the wrongful acts committed by the predecessor employer. In a case called Chateau Laurier and CBRT&GW, 1 L.A.C. (4th) 129, a successor employer was held liable to pay compensation for privileges wrongfully denied and payable during a period prior to the successor employer becoming an employer.
George Adams in his seminal text, Canadian Labour Law states at page 8-38.1:
"Labour boards, arbitrators and the courts have had no difficulty in finding a successor employer responsible for remedying the predecessor's breaches of the collective agreement. Because the agreement, by statute, binds the purchaser as if it were an original signatory to it, the agreement 'flows through' the sale unchanged and the policy for this liability is sound. Further, the successor is bound to remedy these past breaches even if grievances relating thereto were not filed at the time of the sale. The successor's liability for the predecessor's unfair labour practices is, however, another matter. It has been held that, absent clear statutory language authorizing boards to so bind a successor, there is no such liability for a bona fide purchaser for value without notice of outstanding unfair labour practice orders. However, the successor who knowingly participates in an unfair labour practice with the predecessor may in its own right be liable. Jurisdictions such as Canada, British Columbia, Manitoba, Ontario and Saskatchewan specifically provide that a successor is bound by all 'proceedings' under the Act which were at least pending at the time of the sale. Thus, successors in thee jurisdictions are bound not only to the collective bargaining relationship as if they had been the original employers but re also bound to remedy the predecessors's outstanding breaches of the legislation if proceedings were pending at the time of the sale. These boards have adopted the American view that the successor which has taken over control of the business is in the best position to remedy effectively the unfair labour practices and is able to indemnify itself against the cost of such remedies (by either obtaining a lower purchase price or an indemnity clause in the sales contract). Sound labour relations policy, it has been held, dictates that the successor should be bound to remedy the previous unfair labour practices of the predecessor. Whether or not such specific legislation exists, an employee terminated contrary to the legislation remains an employee in all jurisdictions and, to this extent, a successor must comply with a reinstatement order directed at the predecessor employer."
The civil law in Ontario recognizes that when corporations merge/amalgamate as the defined by the Business Corporations Act, the amalgamated corporation possesses all of the property, rights and privileges of the amalgamating corporations, and is also subject to all of the predecessor corporations liabilities, including civil, criminal and quasi criminal liabilities.
The same rationale ought to support the recognition that a successor employer assumes liability from a predecessor employer in the forum of human rights law. After all, a successor employer, at the point of "purchasing" the predecessor's business, as a matter of course undertakes a "due diligence" examination of the status, assets, and liabilities of the business. One outstanding liability that reasonably ought to be examined and apportioned as between buyer and seller is responsibility for human rights violations that are the subject of an existing complaint, or a complaint that the respective parties reasonably ought to be aware of.
A related concern arises when an employer, found liable as the perpetrator of a discriminatory practice, goes bankrupt. Currently, at best, the victim of a discriminatory practice committed by a bankrupt employer may reasonably anticipate that his/her claim will be registered as an unsecured claim in the course of the administration of the bankrupt estate of the employer.
Generally, this means that no meaningful remedy is available because secured creditors (ie. banks, or other wealthy financial institutions with secured charges fixed on assets and properties) have their claims satisfied first under the Bankruptcy and Insolvency Act regime.
We respectfully submit that the Act ought to provide for human rights protection fund, generally consistent with the model established by the Ontario Employment Standards Act from 1992 - 1995. In this respect, please see the terms of Part 14.1 - Employee Wage Protection Program of the Employment Standards Act, R.S.O., 1990 c.E14 as amended by 1991, c.5, sections 13-17; 1991, c.16; 1991, c.43, section 2; and 1992, c.21, sections 58-61. These statutory provisions are reproduced at the end of this brief at pages __________.
The Employee Wage Protection Program established by the ESA in the early 90's in Ontario provided that recovery of outstanding orders to pay wages made against employers who had violated quasi constitutional workplace standards, could be made out of the consolidated revenues of a wage protection fund, up to a maximum of $5,000 for each claim. At the same time, the administrator of the Employee Wage Protection Program was subrogated to all of the rights of an employee paid compensation by the program, and was authorized to bring an action against the employer, or any other person who is liable, for the outstanding orders to pay, such as directors of the insolvent or bankrupt corporation.
Our submission is that human rights standards ought to be given a similar kind of protection when a respondent employer goes bankrupt. Indeed, if prior to bankruptcy, the employer had gained or profited by its improper human rights practices, ultimately it would be the secured creditors (ie. banks etc.) who would gain from the violations committed, because the estate of the bankrupt employer would be improperly enriched, and offer that much more value for the benefit of the secured creditors.
If Parliament is not inclined to sustain a human rights protection fund, out of general revenues, then at least a super priority should be created in favour of human rights compensation orders with respect to the administration of the estate of a bankrupt employer, all in consequential amendments to the Bankruptcy and Insolvency Act.
It is fair to say that in determining who can fare "better" in the face of a loss arising out of a human rights violation, certainly a disadvantaged complainant is less able to forego his/her right to a remedy than a bank or lending institution.
While it is acknowledged that the term harassment is not defined by the Act, in our view this silence has not unreasonably impeded the Tribunal or Superior Courts from applying section 14 of the Act. In our view, the judicial definition of harassment under the Act comes reasonably close the statutory definition that has been offered by human rights statutes in Ontario, Nova Scotia, New Brunswick, Manitoba, and Newfoundland. Still, improvements could be made to the Act's characterization of what constitutes an act of harassment.
Generally, Legislatures view harassment as "engaging in a course of abusive or vexatious comment or conduct which is unwelcome or reasonably ought to be known to be unwelcome."
We submit that two specific improvements to the statutory treatment of harassment allegations ought to be made.
First, it ought to be made plain that a single comment or a single act, may constitute harassment, if it is flagrant or seriously harmful.
Second, Parliament should insure, in concert with amendments suggested in the area of interim relief, that the Commission and/or a Human Rights Tribunal are empowered to issue quick interim relief to address complaints of harassment, before they are left to further poison the workplace.
It is respectfully submitted that the Act ought to permit a Union to file a complaint with respect to discrimination in the workplace on behalf of its members. Such a rule would be consistent with the provisions of the CAW-Canada Constitution which specifically establish in Article 6, section 11, that the Union is the member's exclusive representative in relation to workplace issues, and may act for the member(s) before any Court, Board or other Tribunal in any matter affecting the members' status as an employee or a union member.
Further, such a rule would be consistent with the principle of exclusive bargaining agency which underlines labour relations statutes in all jurisdictions of Canada. The consent of all members of a union should not be necessary before the Union launches a complaint. Labour relations law recognized that unions have a distinct legal status and representative authority that is more complex than a simple agency relationship towards its membership. A union may act on its own initiative, without obtaining authorization of its members. There are sufficient protections incorporated within the Canada Labour Code and a union's Constitution to insure that the rights and privileges of union members are not abused. For example, every union in the federal jurisdiction is already subject to a statutory duty of fair representation with respect to all employees in the union's bargaining unit. This standard of fair representation obliges the union to fairly turn its mind to the interests of all persons in the bargaining unit. However, the union remains free to make the kinds of decisions that it, as an institution, believes are in the best interests of the affected workers and consistent with principles of fairness. It is to be noted that a union may be hamstrung in the assertion of human rights complaints on behalf of disadvantaged members such as workers of color, or women workers, if it is bound to obtain the consent of all or even a majority of its members. Corporations, for their part, rarely take votes among shareholders before they act in any particular circumstances. Likewise, trade unions ought to be given proper discretion within which they may choose to pursue human rights complaints on behalf of their affected membership.
Yes, any individual physically present in Canada should be able to file a complaint regarding a discriminatory practice. The lawfulness of a person's presence in Canada should not detract from his/her right to assert a human rights violation.
We also submit that the Act need not define who constitutes a victim for the purposes of a human rights complaint. The definition of a "victim" may be approached on a case by case basis. In the event that Parliament does embark upon a definition with respect to who may enjoy standing as a "complainant" or "victim" care should be taken not to follow down the conventional road of traditional legal concepts relating to a person's "legal interests" in a matter. For example, in a case called Menghani v. Canada (Employment and Immigration Commission) (1992), 17 C.H.R.R. D/236 (Canadian Human Rights Tribunal) reversed in part, 110 D.L.R. (4th) 700 (F.C.T.D.), the Federal Court, Trial Division found that anyone "adversely affected" by a discriminatory practice may be considered as a "victim" of such a practice. In the circumstances of this case, the complainant, a Canadian citizen, extended an offer of employment to his brother who was in Canada, as a visitor from India, all pursuant to an immigration program which permitted the landing, as a permanent resident, of a family member who it was intended would work in a family business. In this particular case, the brother's application for a VISA was refused. The complainant alleged that he was a "victim" because, in attempting to reunite his family, his business suffered due to the discriminatory policy of the respondent Immigration Commission in refusing to properly process his brother's application for landed immigrant status. The Court agreed that the complainant had status to bring his complaint. This decision should inform any action taken by Parliament. One may be indirectly but adversely affected by a discriminatory practice and still have status as a complainant in a federal human rights proceeding.
Processing of Complaints
In our view, broad structural changes are required with respect to the ways and means that human rights are protected and enforced in the federal jurisdiction.
By this we do not venture to say that the focus on individual complaints is outmoded. Our system of enforcement must guarantee that every person (unionized or otherwise) has the right to file a complaint pertaining to discriminatory treatment, and have it resolved, heard, and/or decided, if the complaint discloses a prima facie case for relief. If the complaint does not disclose a prima facie case for relief then it ought to be disposed of according to rules of fairness.
Recognition of the essential importance of an individual complaints procedure does not derogate from the need to bolster the Commission's investigatory powers and authority to "prosecute" complex complaints regarding systemic discrimination.
There is a way that the resources of the Commission may be liberated to focus on issues of systemic discrimination, while still guaranteeing access for individuals to the complaint process.
We suggest that amendments to the Act ought to remove the Commission as the gatekeeper of complaints made, under the Act and take away the obligation placed on the Commission to investigate all complaints and pursue them until resolution. Specifically, individuals ought to be granted the right to complain directly to a standing, permanent Tribunal of human rights, without necessarily engaging the resources of the Commission, if they do not wish to do so. Accordingly, an individual should have the option of engaging the investigatory powers of the Commission, but he/she/they need not do so.
We view the complaint-adjudicative model offered by the Canadian Industrial Relations Board, and defined by the Canada Labour Code as a fair and reasonable starting point for the description of a new model of adjudication and enforcement of individual complaints and resolutions. Important aspects of such a model would include:
(a) A complainant's right to file a complaint directly with a permanent standing Tribunal, subject to a complainant's duty to provide reasonable disclosure of all details of the complaint, and supporting documents and things;
(b) A corresponding duty of the respondent to disclose all material facts, documents and things in reply;
(c) Mandatory attendance at a settlement/conciliation meeting, however, with no obligation to settle the complaint;
(d) The complainant's right to a hearing within a reasonable time, when the complaint discloses a prima facie case for relief;
(e) Access to pre-hearing procedural orders relating to the production of further documents and things etc, the summonsing of witnesses, and the issuance of particulars;
(f) The hearings Tribunal ought to enjoy a broad based authority to admit all relevant evidence, to focus on the substance of the issues in dispute, to issue decisions promptly after hearings on the matter have concluded.
In making this recommendation, we do not wish to denigrate the efforts of Commission staff, or the role that the Commission has played in the past. We recognize that the Commission has played an important role in asserting and defending the "public interest" in the pursuit of human rights complaints under the Act. However, the reality is now that many human rights complaints are litigated (at least in the unionized world of arbitration) without the participation of the Commission. Parliament has encouraged that process by amending the Canada Labour Code, to permit arbitrators to "apply, interpret and enforce" employment related statutes. In doing so Parliament must have known that no party necessarily representing "the public interest" would be present at labour arbitration hearings. In our view, defence of the "public interest" in resolving the myriad number of complaints lodged with the Commission, no longer justifies the obligation placed on the Commission to receive, treat, investigate, and/or resolve every human rights complaint in the federal jurisdiction. Such a structure has created and sustained an enormous backlog of complaints, which has given rise to undue frustration on the part of citizens and equality seeking groups across Canada.
While notice of all complaints should be filed with the Commission, and while the Commission may intervene in a particular complaint if it feels it would be appropriate to do so on the grounds of public interest, in the main, individuals ought to be able to choose to pursue their complaints on a fast track basis before a permanent standing Tribunal. (This fast track must still include mandatory conciliation, see below.)
At the same time, an autonomous branch of the Commission ought to be established and properly funded in order to assist those persons who require the help of others to pursue their complaints. Assistance should be rendered through the auspices of an agency substantially patterned after the model of the "Office of the Worker Advisor" established in the Workers' Compensation system in Ontario. This Office of the Worker Advisor has rendered significant assistance to injured workers when they file claims with the currently named Workers Safety Insurance Board, and Tribunals established under the Workers' Safety Insurance Act. We have attached to the end of our brief a copy of section 176 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, schedule A, as amended. The functions of the Office of the Worker Adviser are set out in section 176. They are to educate, advise and represent workers who are not members of a trade union, and their survivors. In our respectful submission, a similar complainant advisory service ought to be opened and available not only to non-unionized workers, but to all persons who file a complaint under the Act.
Once liberated from the pursuit of all complaints, the Commission may be free to better apply its resources to the larger, more difficult, and precedent setting cases that it is advised of, or discovers on its own initiative. We note that during the NGO roundtable held in Ottawa on October 18th, 1999, some participants suggested that unions should have the obligation to provide legal assistance to unionized complainants with respect to their interaction with the Commission. We disagree with such a proposal. The law today does not require unions to take every grievance to arbitration, nor should it oblige unions to handle every human rights complaint. Unions must retain the discretion to select which complaints they will push forward, at arbitration or before the Tribunal.
Questions 3-17 - 3-23, in our respectful view, call for a response from our Brothers and Sisters and their representative organizations in the aboriginal community. We submit that Parliament ought to listen to, and consider, carefully, the views expressed by them.
In our view, the provision of the Act established that child birth and child care leave and benefits are not discriminatory remains a useful and appropriate statutory exception. This exception makes Parliament's intention abundantly clear that leaves granted in these circumstances do not constitute a discriminatory practice on the basis of either sex, or family status.
We submit that, the current statutory exception which exempts affirmative action programs from the purview of the legal qualification of "a discriminatory practice" is not being used enough by stakeholders in the federal sector, or the Commission. We are not aware of any employers with whom we have collective bargaining relationships in the federal sphere having decided to initiate an affirmative action program under the Act and consequently seek approval of the Commission. Nor have federal human rights Tribunals initiated such a program pursuant to section 53(2)(a) of the Act. Indeed, in 1995, Parliament took a step backwards by introducing a limitation upon a Tribunal's power to make an order under subparagraph 53(2)(a)(i). Parliament passed the following amendment to the Act in 1995:
"Section 54.1(2) - Limitation of order re employment Equity - where a Tribunal finds that a complaint against an employer is substantiated, it may not make an order pursuant to subparagraph 53(2)(a)(i) requiring the employer to adopt a special program, plan or arrangement, containing (a) positive policies and practices designed to insure that members of designated group achieve increased representation in the employer's workforce; or (b) goals and timetables for achieving that increased representation."
While this restriction upon the jurisdiction of a Tribunal arises in connection with employment equity orders, this issue ought to be carefully re-examined. In our view, the Act demonstrates that Parliament has retrenched from the ground breaking decision of the Supreme Court of Canada in CNR v. C.H.R.C.  1 S.C.R. 1114 which held that section 53(2) of the Act could be interpreted to authorize the imposition of mandatory employment equity programs. Today, it appears that the Commission's power to initiate broad based programs of affirmative action has been emasculated to the point that pursuant to section 16(2) of the Act, it can only make general recommendations about such a program, or give advice and assistance with respect to same upon an application made by an employer or service provider. The Commission should be given a stronger legislative mandate in this area.
Section 13 of the Act currently deals with the matter of "hate messages". In our view, we are constrained to say that on its face, section 13 has an extremely limited application. For a communication to be found to constitute a "hate message" it must be done repeatedly, communicated telephonically, the facilities of the telecommunication undertaking must be within the legislative authority of Parliament, and those exposed to the hatred or contempt expressed within the message must fall within a prohibited ground of discrimination. There is a specific exemption for "broadcast messages" and liability is limited with respect to the owner of the telecommunication facilities. Consequently, the "hate message" provisions in the Act fail to address a number of critical issues, namely,
(a) Transmission of singular hate messages are not caught by section 13 of the Act, no matter how virulent the message;
(b) Messages communicated other than by a human voice through the medium of telephone wires may not be subject to the Act.
It is unclear at this time whether or not messages communicated by way of the Internet (some of which are conveyed by telephone wires, others by cable link ups) will be found to come within the purview of section 13. In Zundel v. Canada (Attorney General) (1999), 175 D.L.R. (4th) 512 (Federal Court Trial Division), Mr. Justice Evans dealt with an application for judicial review of the Commission's decision to appoint a Tribunal to inquire into a complaint that the applicant had violated section 13 of the Act by causing hate messages to be communicated through a computer web site known as the "Zundel site", which is accessible through the Internet. The application for judicial review (prohibition) was brought by the applicant on the basis of five grounds, including the argument that a Tribunal has no jurisdiction to inquire into a complaint concerning hate messages because material posted on the web site in the form of text and graphics is not communicated telephonically, as required by section 13 of the Act. Mr. Justice Evans disposed of this argument at page 532 of his decision by writing:
"Therefore, on a consideration of the language of the Act, the evidence and the interpretive approach to be taken to human rights legislation, it cannot be said that the position adopted by the Commission on the interpretation on the word 'telephonically' lacks a rationale basis. Whether it is correct in law is not for me to decide in this proceeding; that will be for the Court before which any application for judicial review of the Tribunal's decision is brought. Meanwhile, the Tribunal must be permitted to make findings of fact about technical aspects of Internet communication on the evidence before it, and to give its considered interpretation, section 13 in light of the arguments of counsel and its own understanding of the purposes of the Act."
Mr. Justice Evans' judgment was rendered on June 15th, 1999. Consequently, the applicability of section 13 of the Act to hate messages transmitted over the Internet is a question of law not yet clarified by the Courts, and it is appropriate for Parliament to take action in this respect. Facilities of a broadcasting undertaking are specifically exempt under section 13 of the Act. Consequently, hatred communicated towards identifiable groups by radio talk show hosts, for example, does not appear to come within the purview of section 13. This deficiency in section 13 ought to be corrected by bringing broadcasting industries within the reach of s.13 of the Act. Finally, section 13 is currently aimed at the transmitter of the messages, and not the owner of the telecommunication facilities. Since liability does not attach to the owner, there is little, if any, incentive for an owner to take all possible action to prevent the communication of hate messages. In our view, liability should attached to the owner of the telecommunication facilities, unless the owner can demonstrate that all reasonable steps were diligently taken to insure that broadcasts of hate messages were not conducted in the course of the use of their facilities.
In seeking to streamline the activities of the Commission, Parliament should not accept the notion that any person in Canada should be barred from asserting a complaint under the Act because they may have other avenues available for the determination of their rights under the Act. the Act applies to all persons in Canada with respect to matters subject to federal regulation. Of course, we are referring here to the debate that may arise with respect to the right of unionized workers to have access to publically funded human rights enforcement measures and machinery. Some may argue that unionized workers who have a collective bargaining agent which may trigger the use of a private grievance arbitration system should be precluded from using the resources of any public agencies established under the Act.
Access to the Act for Unionized Workers
We fundamentally oppose any Legislative amendment that would strip unionized workers of the right to complaint under the Act like any other person in Canada. To take such a step would be to treat unionized workers as second class citizens. Further, we risk diminishing universal public support for the Commission and the Act if Parliament declares that the Commission and federal human rights tribunals are irrelevant for 1/3 of Canada's adult population.
Further, while a union may have a valid reason for not pursing a particular human rights complaint within the grievance arbitration system, principles of justice require that the administration of a public quasi constitutional statute remain open to all. At the same time, we recognize that concurrent prosecutions of human rights complaints both within the grievance arbitration system, and before the federal human rights tribunal is not appropriate. A complainant should choose which forum he/she wishes to pursue his/her complaint. The Commission, or Tribunal should take account of the existence of parallel legal proceedings, such as a labour arbitration case, not to necessarily dismiss the complaint under the Act, but to defer consideration of it until the first proceedings have been concluded. Once the first complaint has been resolved, the Commission and/or the federal human rights tribunal can properly decide how to deal with the outstanding complaint. We acknowledge that common law doctrine such as res judicata or issue estoppel may apply to prevent the litigation of the same dispute as between the same parties a second time when the final decision has been rendered with respect to the dispute. We do agree that rules resembling the doctrine of res judicata should be included in the Act so that Canadians are on notice of the proposition that their complaint will be heard once, and once only, as long as it is fully examined subject to the rules of natural justice. However, Parliament should recognize that these common law doctrines ought to be applied strictly. They should not be loosely framed in the Act, or used as a bar to the assertion of a human rights allegation not fully heard and determined.
In our view it is appropriate that a neutral authority have the power to screen complaints. We recognize that under the current Act, the Commission has exercised its authority to screen complaints and to dismiss them on the basis of grounds enumerated in section 41 of the Act. We do not dispute the Commission's authority to dismiss complaints on the basis of jurisdiction, or if a complaint is trivial etc. We do contest the proposition that the application of section 41(1)(b) of the Act justifies the Commission's general refusal to accept employment related complaints from unionized workers simply because of the affected workers' collective agreement is governed by the Canada Labour Code, and therefore, the complaint is one that could be more "appropriately dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than the Act."
Our comments above with respect to the need to guarantee access to publicly funded enforcement machinery with respect to the Act are apposite to this issue.
We agree that there should be time limits for the completion of an investigation. However, these time limits should not be enshrined in statute. However, rules ought to be made pursuant to the Act which set out expeditious and reasonable time frames upon which complainants and respondents may rely. It is trite to say that time limits for the completion of an investigation of a complaint will more likely be honoured if the Commission is given the necessary resources and person power to do the job entrusted to it.
Commission investigators should be given broad powers to obtain documents and information. Obliging investigators to go to the Federal Court for a search warrant to obtain documents or information, as is now the case under the Act, is an undue burden, out of step with the power of similar administrative officers appointed under other equality seeking statutes. For example, sections 63 and 64.2 of the Employment Standards Act of Ontario authorize employment standards officers to require the production of all documents relevant to an investigation. Indeed, the employment standards officer is empowered to remove such documents from an employer's premises in order to make copies of same. In addition, the employment standards officer may call a meeting to which the respondent employer is obliged to attend, upon fifteen days notice, in order to pursue the investigation of a claim. Sections 63 and 64.2 are reproduced at the end of this brief at pages __________. We respectfully suggest that similar provisions ought to be introduced into the Act.
When the Commission, or the Tribunal dismisses a complaint, prior or after a hearing, they should be expressly obliged to provide written reasons for their respective decision. In our view, rules of natural justice/fairness require that a complainant be advised formally of the reasons why his/her complaint will not proceed or succeed.
However, if a complaint is dismissed upon one of the ground numerated in section 40(5) or section 41(1) of the Act, by the Commission, we respectfully submit that the dismissal ought to be reviewed by a single member of the Tribunal, upon request of the complainant, without the necessity, however, of an oral hearing. The Tribunal member should have the discretion to convene an oral hearing and receive viva voce evidence, if the credibility of a critical witness, or the resolution of conflicting facts is central to the disposition of the matter under section 40(5) or 41.(1). Guaranteeing an oral hearing to all complainants who face a dismissal of their complaint would, in our view, be inefficient use of the resources of the Commission and/or the Tribunal.
It is to be noted that labour relations boards, across Canada, decide cases without a hearing, when factual matters are not in dispute, and the issues can be effectively debated and clarified in writing. A decision maker's duty to act fairly does not demand the convocation of a hearing in all circumstances.
However, to be clear, if a complaint discloses a prima facie case for relief, within the jurisdiction of a Tribunal defined by the Act, and is otherwise timely and not vexatious, a complainant should enjoy the fundamental right to an administrative law hearing within a reasonable time.
We respectfully submit that the Commission ought to be empowered to send to the Tribunal, and the Tribunal itself ought to be able to decide, questions concerning the application of the Charter of Rights and FreedomsAct. Lodging this authority with the Tribunal would be consistent with the reasoning of the Supreme Court of Canada in Cuddy Chicks Limited v. OLRB  O.L.R.B. Rep. 989, affirmed 62 D.L.R. (4th) (Ontario C.A.) and 2 S.C.R. 5, as well as Tetrault-Gadoury v. Canada (Employment and Immigration Commission)  2 S.C.R. 22.
We submit that conciliation services are essential to the proper administration of the Act. It is an important function because the mutually acceptable resolution to a complaint is almost always preferable to a litigated resolution. Conciliation is essential as well when the complaint launched concerns a dispute between two parties to a continuing relationship (ie. an employee and an employer, or a soldier, and his/her armed forces leadership). The settlement of a complaint, following conciliation, can hopefully contribute to the repair of the parties continuing relationship over the long term. Conciliation should be mandatory for all cases. It need not drag on, however, if there is no reasonable hope of a settlement. Some cases just will not settle, and an experienced conciliator will recognize this reality and not delay matters further before referring the file forward. There should be a legislated deadline for the completion of conciliation, if only to focus the parties attention to the need for a resolve, and to push the process along. Conciliation should be undertaken by trained staff who form an autonomous group within the staff of the Commission. It is incumbent upon us to advise of reports from unrepresented complainants who believe their complaints are not well understood by current Commission staff, and that undue pressure is brought to bear upon them to settle. All too often settlement is presented as the best of a series of poor options principally because of the delay everyone faces in obtaining a hearing and formal resolution of the matter. Hopefully, this latter approach will change, if changes are made to the structure and funding of the Commission and the Tribunal. The allegation that conciliators today "rush" a settlement may well reflect complainants' frustration with the tremendous imbalance of power that is endemic to most relationships between complainants and respondents. The unequal power balance between complainants and respondents cannot be changed overnight, or by simple legislative direction. However, properly trained conciliation officers should not feel hamstrung by the overriding need to settle a case simply because the Commission and/or the Tribunal do not have the necessary resources to consider and resolve the matters in dispute.
As noted earlier in our brief, we agree with the proposition that individual complainants ought to be given the option of taking their complaints directly to a Tribunal, via a mandatory conciliation service, all with the assistance of a human rights advisory office located in each region of the country. In the alternative, the complainant may wish to "prosecute" his/her complaint through the regular auspices of the Commission. Further, the Commission should have the power and resources available to permit it to select specific cases of specific importance which advance the agenda of human rights in Canada. The Commission should not direct complaints to the labour relations grievance arbitration system. As noted above, if the collective bargaining agent of the complainant is already dealing with the matter, then the Commission/Tribunal ought to defer its consideration of the matter until it is disposed of by the labour relations grievance arbitration system. However, if the collective bargaining agent has not undertaken to deal with the matter, then the Commission should insure that the dispute is properly determined. If Parliament rejects this suggestion and otherwise directs or refers employment related complaints asserted by unionized workers to the grievance/arbitration system it ought not to, in any event, direct Commission counsel to present these cases before an arbitrator. The intervention of Commission counsel before an arbitrator would do serious damage to the exclusive authority of a union to represent employees in its bargaining unit, and to administer the terms of its own collective agreement. There is already a system of check and balances enshrined in the Canada Labour Code governing the union's representation of employees in its bargaining unit, and should the union be grossly negligent in the presentation of its case on behalf of a human rights complainant, appropriate remedies are available pursuant to the Code.
In response to the question framed at paragraph 11.55, it is submitted that the Tribunal should encourage the participation of broad based quality seeking groups in hearings of complaints which raise new and/or significant issues of law. The intervention of equality seeking groups as "friends of the Tribunal" may produce significant benefit for the Tribunal, as long as the intervenors restrict their participation to the making of legal submissions, and refrain from calling evidence and raising new issues on their own motion.
An overriding objective of any review of the Act ought to be the identification of ways and means that human rights violations may be effectively and quickly remedied, all within the parameters of principles of fairness and natural justice.
Many human rights complaints arise out of employment circumstances. Time is of the essence in employment disputes. For example, if, in the opening stages of an organizing drive, key union supports are suddenly fired, the chilling effect of these terminations will doom the efforts of those who want to exercise their right to collective bargaining, unless a quick remedy is offered, and the worker is reinstated, pending a full determination of the party's rights.
In the labour relations world, a short saying has assumed universal recognition: "labour relations delayed is labour relations denied"; because of the reality that if a remedy is delayed unduly, it may be come impossible to fully address the violation committed by an employer.
This labour relations reality convinced Parliament to modernize certain aspects of the Canada Labour Code, in the form of certain amendments which we recommend to this Panel, and Parliament, in order to make the Act more effective.
Bill C-19, proclaimed effective January 1, 1999 (S.C. 1998, c.26) updated the powers of the Tribunal mandated to administer Part I of the Canada Labour Code, the Canada Industrial Relations Board. One new power granted the CIRB was the power to make interim orders. Section 19.1 of Part I of the Code now reads:
"19.1 The Board may, on application by a trade union, an employer or an affected employee, make any interim order that the Board considers appropriate for the purpose of ensuring the fulfillment of the objectives of this Part."
We recommend that a similar provision be added to the Act. Many examples of circumstances calling out for interim relief can be reasonably contemplated: when a person is a victim of a discriminatory practice of a basis of a serious illness, like AIDS, an effective interim remedial order may lead to practical relief, before it is too late. Or, in other employment circumstances, if someone is denied active employment due to a discriminatory practice on the basis of disability, it would be appropriate to remedy the wrongdoing quickly before the "victim's" life is irretrievably harmed. Discrimination on the basis of a prohibited ground in employment circumstances leads to more than simple monetary losses, if the discrimination is ongoing, it may lead to family breakdown, social isolation, and mental distress. A member of our Union, John Mills, can attest to the grave consequences of delay in the disposition of his human rights complaint against VIA Rail Inc., and the deficiency in the current Act which precluded a reasonable interim order, in the circumstances of his complaint. Mr. Mills was denied active employment in October, 1991, although he actively asserted his fitness for work. VIA Rail denied him an opportunity to return to work, claiming he was unfit and disabled. It took over eight years for Mr. Mills' complaint to be resolved. Ultimately, VIA was found to have committed a discriminatory practice, and Mr. Mills was reinstated to active employment, and paid a significant amount of back pay etc. Had the Tribunal possessed the power to grant interim relief, VIA could have been ordered to take Mr. Mills back to work pending the disposition of his complaint. It cannot reasonably be said that VIA would have suffered irreparable harm had it offered active employment to Mr. Mills. Had it done so, on the basis of an interim order, the serious stress and pressures endured by Mr. Mills and his family throughout most of the past decade could have been avoided.
It is interesting to note that Parliament did not set out a specific test to be met before the CIRB could issue an interim order pursuant to Part I of the Canada Labour Code. Evidently, Parliament wanted to allow the CIRB some flexibility, and the opportunity to craft one or more tests to fit the different kinds of complaints that come before it.
In Ontario, between 1993 and 1995, stakeholders in the labour relations world had some experience with the Labour Relations Act that endowed a Tribunal the authority to issue interim orders. The Tribunal in Ontario, the Ontario Labour Relations Board developed a flexible and workable test that was generally accepted in the community, perhaps in part because it borrowed somewhat from the jurisprudence crafted in the civil courts pertaining to the issuance of an injunction. Section ______ of the Ontario Labour Relations Act, as amended by Bill 40 provided the Board with the power to issue interim relief as follows:
The Ontario Labour Relations Board found that it ought to grant interim relief when a request for same disclosed that the underlying main complaint reflected an arguable case of the violation of the Act, or put another way, a simple prima facie case of the violation and a need for remedy was made out. Further, while the Board eschewed the adoption of an "irreparable harm" test as identified by Superior Courts in connection with the issuance of an injunction, the Board did say that a request for interim relief had to demonstrate that the harm from granting the order had to be less than the harm which might flow from not granting it. The Board took pains to say in its ground breaking decision in this area, called Loeb Highland  OLRB Rep. March, 197, that it viewed the exercise of granting interim relief as an endevour in "problem solving" not fault finding. The Board had this to say about assessing the factor of relative harm when deciding whether or not to grant interim relief:
"The importance of effective remedies, their general imperfection in labour relations, and the corrosive effects of delay all serve to highlight the critical role interim relief has to play in this area. If harm is not easily cured after the fact, and if delay is critical, it makes some sense to emphasize preventing that harm at the earliest possible point. However, it must be recognized that preventing one harm, to a union applicant for example, may well have a harmful labour relations effect on a responding employer. This suggests that a general predisposition towards preventing harm, rather than curing it, applies to the interests of both parties. In other words, the Board must balance the harm to each party in considering whether to grant an interim order. As a result, rather than separating out the concept of irreparable harm which appears to be a poor fit with the Board's experience in remedial matters, and then proceeding to an examination of the balance of convenience, we find it more consonant with labour relations realities to adopt an approach where we consider both what harm may occur if an interim order is not granted, and what harm may occur if it is. This does not mean that the notion of irreparable harm is entirely irrelevant. It merely reduced it to one of a number of aspects of harm which the Board might consider in this area."
In Loeb Highland (supra) the union filed an application for interim relief on January 11th, 1993, in the form of several written statutory declarations and a supporting brief of argument. The company responded two days later on January 13th, 1993, and on January 14th, 1993, a hearing was scheduled. On the 18th of January, an order was granted reinstating the worker whom the union alleged was fired for union activities.
We recommend this procedure to this Panel, and Parliament. Namely:
(a) A request for interim relief must disclose in detailed fashion, a prima facie case for relief;
(b) A request for interim relief must be supported by sworn declarations and a written submission on the facts and applicable law;
(c) The complainant shall not allow undue delay to pass between the time of the alleged violation, and the request for interim relief, failing which, no interim relief may be granted;
(d) The respondent should respond within two days with a statutory declaration(s), and written submissions;
(e) An oral hearing need not be held, but may be conducted in circumstances where the Tribunal requires clarification of critical facts. If an oral hearing is conducted, the Tribunal should consider conducting a telephone or video conference if all concerned are not in the same location;
(f) A decision should be issued by the Tribunal within seven days of the filing of the request for interim relief.