Human rights commissions and tribunals across Canada certainly get a bad rap. Their critics deride them as “kangaroo courts” run by “left wing activists” who dole out cash for “hurt feelings” after a “show trial” where the complainant is provided with free legal counsel and the accused is forced to fund its own defence.
The commissions and those who defend them deserve some of the blame for these perceptions. Toronto comedian Guy Earle was forced to pay money to offended guests at a Vancouver comedy club after some off-colour jokes sparked a confrontation. There was also the spectacle of conservative firebrand Ezra Levant being forced to defend his decision to publish the relatively benign yet highly controversial Danish cartoons of Muhammad to a commission employee (the complaint against Levant was eventually withdrawn).
The public relations campaign in defence of the various commissions across Canada in recent years has been disastrous. Rather than acknowledging that at its most basic, the system is very much like any other – designed to impose consequences for bad behaviour and compensate complainants for their losses – we hear fluff about how the process is “remedial” rather than “punitive,” and that there is no “accused” or “guilt.”
Financial awards for “hurt feelings” and “injury to dignity” – damages not compensable in most other areas of law – don’t help perceptions. The tendency to portray the process as a friendly chat in the principal’s office where everyone hugs and makes up at the end does not endear the public to the work of the commissions.
These failings aside, I do not share the view of those who believe we should get rid of the commissions: first because the basic mandate of the commissions (i.e. fighting discrimination) is a valid social objective, and second because there isn’t really a better tool to accomplish that objective.
There are certainly those people who, for ideological reasons, do not agree that the state has any role to play in policing discrimination. “Hey, it is my business! I can hire who I want, and sell to whomever I chose! It is none of the government’s business.” If you are one of these people you will likely not find much that you agree with in what follows.
Because I, like many others, believe it is a reasonable limit on our right to run our own business as we please that it be illegal to say “I will not hire you because you are a woman” or “I will not rent to you because you are black” or “get out of my store we don’t serve aboriginals here.” That kind of absolutist libertarianism has been roundly rejected in the Canadian political culture. One can object to some of the more marginal, even frivolous complaints that commissions deal with, but it is clear to me that real discrimination still exists and a mechanism should be in place to address it.
The next question is, whose job is it to police discrimination? The answer in (almost) every jurisdiction in Canada has been a quasi-judicial system involving a commission that investigates claims of discrimination and a tribunal that hears the cases and determines outcomes.
Critics of human rights commissions suggest that such disputes should be handled in “real courts” by “real judges.” In my view, this would be a bad idea and strangely this suggestion is rarely heard with respect to other quasi-judicial bodies that have power in other areas, such as employment and rental standards in other provinces.
The first reason is that our “real judges” are extremely busy. Have you tried to schedule any time with one lately? I have and usually you end up waiting anywhere from several weeks to several months just for a one hour conference with a judge. Want a day or more with one of our real judges? You can expect to wait the better part of a year to get into court.
There is also the reality that most human rights cases involve relatively small amounts of money. For example, take a recent Ontario case where a man was asked by his potential employer if he was white or black and was told that “(the employer) don’t hire foreners (sic)” received an award of a whopping $8,000. One must question the economy of having the most talented and highly paid legal minds in our community (judges) spending days dealing with cases where such minor sums are on the line.
Finally, I do not believe that a shift to a judicially run human rights system will fix many of the more common complaints we hear from critics regarding the current system.
In real court, defendants still pay the cost of their own defence, and when costs are awarded to successful litigant they rarely fully reimburse the party. In real court, civil cases are decided on the basis of a balance of probabilities, rather than proof beyond reasonable doubt.
In real court, in cases involving smaller dollar amounts (i.e. small claims court) the stricter rules of evidence are relaxed. In real court, the names of defendants are a matter of public record and frequently picked up by the media.
In real court, even wrongly accused litigants face the unfortunate choice of paying for settlement or the potentially greater cost of defending a case.
There are many reforms I would propose to the way that human rights commissions operate, and I have serious misgivings about commissions having jurisdiction over speech (thankfully the latter issue is not currently something Yukoner’s need to concern themselves with territorially or federally). But I do believe that a quasi-judicial process for the resolution of these disputes is better than imposing yet another burden on our overstretched court system.
Kyle Carruthers is born and raised Yukoner who lives and practises law in Whitehorse.