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Allow direct access to Human Rights Tribunal

Human Rights Commission should not act as gatekeeper except in cases involving free speech.

Lady sustice balancing rights

The Constitutional and Human Rights Section of the Canadian Bar Association added its voice to those of the Canadian Association of Black Lawyers (CABL) and other legal community groups, calling for the federal government to allow direct access, in most cases, to the Human Rights Tribunal.

This is nothing new: More than two decades ago, in June 2000, the Report of the Canadian Human Rights Act Review Panel, chaired by Justice Gérard La Forest, recommended giving claimants “the right to bring their cases directly to the [Canadian Human Rights] Tribunal themselves with public legal assistance.” The panel also urged the Canadian Human Rights Commission to “join in the cases that are the most significant human rights cases that will provide the greatest equality impact.”

In a submission to the Review Panel in 1999, the CBA recommended eliminating the Canadian Human Rights Commission’s gatekeeping function, and adequately funding the Tribunal to deal with complaints in a fair and timely manner.

The CABL letter notes that British Columbia and Ontario have implemented direct access to their provincial human rights tribunals, in line with Justice La Forest’s recommendation, but nothing has happened at the federal level.

It further notes that, according to its 2019 annual report, the Canadian Human Rights Commission received 1,203 complaints and only referred 85 to the Tribunal, and that “43% of complaints received by the Commission are against the federal government.”

CABL does not believe the Canadian Human Rights Commission needs to be dismantled. It could, as in Ontario and B.C., keep its other functions under the Canadian Human Rights Act, “including its public education and employment equity functions. The Commission could also still maintain its recently acquired mandates under federal accessibility and pay equity legislation.”

In expressing its support, the CBA Section makes one exception: human rights cases that involve competing constitutional rights, specifically the right to freedom of expression in online hate complaints.

“Cases involving speech require consideration of competing human rights – the right to freedom of expression and the right to freedom from incitement to hatred or discrimination. Canada previously had a civil remedy against online hate in human rights legislation. That law was repealed because, even though a screening function was in place, other factors led Parliament to conclude that it leaned too heavily against freedom of speech,” the CBA Section says.

“When it comes to freedom from acts of discrimination, there is no comparable competing human rights value. We urge you to reform the federal human rights system to allow direct access to the Canadian Human Rights Tribunal in non-speech cases,” it concludes.