February 4, 2021
What is The Manitoba Human Rights Commission?
The Manitoba Human Rights Commission receives and investigates complaints regarding Human Rights Code violations in Manitoba. The independent Adjudication Panel then reviews the Commission’s investigation and may hold a hearing to determine whether a Human Rights Code violation has occurred and how the issue will be resolved.
The Human Rights Code provides protection against acts of discrimination and harrassment such as those that may occur in the workplace or other interactions. For example, in AB v Jazco Management, a landlord was fined for discrimination based on source of income because the complainant received social assistance and did not meet the landlord’s desired rent-to-income ratio. The award was imposed even though the adjudicator did not believe the landlord discriminated maliciously, and commented that the Legislature should provide better guidance and advice to landlords and tenants to prevent similar cases.
Unlike the Canadian Charter of Rights and Freedoms, The Human Rights Code does not apply to legislation. Therefore, challenges against discriminatory laws, even provincial human rights laws, are generally properly heard by the courts, not by provincial human rights commissions. For example, in Vriend v Alberta, Vriend’s employment was terminated because of his sexual orientation. The Alberta Human Rights Commission was unable to act on his complaint because Alberta’s Individual’s Rights Protections Act did not include protection against discrimination based on sexual orientation. Vriend challenged the law in court and the Supreme Court of Canada ultimately held that this omission was unconstitutional because it violated equality rights protected by the Charter, and added sexual orientation as a protected ground under that Act.
The Commission and Adjudication Panel also perform an important role in human rights education and increasing access to justice for Manitobans. The Commission conducts investigations that otherwise may be too difficult or costly for many complainants. Undoubtedly, individuals who face discrimination often require assistance overcoming legal, financial, and other barriers they may face while attempting to seek a legal remedy.
Challenges Faced by the Commission
A 2018 report recognized 3 potential areas for improvement: timeliness, its mandate, and adjudication. Timeliness is particularly concerning as it can cause undue hardship for those awaiting a resolution to a human rights complaint. Delays can accumulate over the course of difficult Commission investigations, lengthy or complicated adjudication hearings, and long wait times for the issuance of decisions.
In Sumner-Pruden v Government of Manitoba, there was a 17-month delay between the end of the hearing and the release of the decision in August 2020. The adjudicator had completed the reasons for his decision after requiring a two-month extension to the original 60-day timeline. This is an extraordinary example because the subsequent 13-month wait was the result of the adjudicator having his appointment revoked immediately prior to the completion of the decision, without prior notice. The adjudicator also noted the extraordinary number of documents and days of hearing. Unfortunately, these factors led to a very long process for a matter important to the complainants. In the end, The Government of Manitoba was ordered to provide healthcare and related services despite the fact that the complainants were of Anishinaabe ancestry living in a First Nation community. Additionally, over $40,000 was awarded to the two complainants.
This illustrates some challenges that can cause delay. Progress is being made, as shown in the Commission’s 2018 Annual Report which stated that its efforts had resulted in the average time to investigate complaints dropping from 11 months in 2014 to 5.5 months in 2018. The Commission and Legislature should strive to continue making such improvements to the structures that protect human rights.
What are the Proposed Amendments to The Human Rights Code?
Bill 26 proposes a variety of changes to The Human Rights Code that were recommended in the report:
- The power of the Commission’s executive director to dismiss complaints will be broader and complaints can be dismissed before investigation.
- A complainant whose complaint has been terminated or dismissed by the executive director can ask the Commission to review that decision.
- A hearing of a complaint must be commenced within 120 days of an adjudicator being appointed.
- Certain decisions may be made orally before issuing them in writing.
- A different adjudicator can be appointed to discuss settlement options before a hearing.
- With the consultation of the adjudication panel, the chief adjudicator will be able to establish rules of practice. These rules must be available to the public.
Why does this matter?
The Commission and Adjudication Panel have been making progress in processing complaints in a more timely manner. Bill 26 proposes a set of changes that are intended to help people obtain justice in a more timely manner.
The Bill proposes a mechanism for complaints to be dismissed without investigation, which will reduce the Commission’s workload and, subsequently, wait times. Grounds for dismissal include frivolousness, lack of jurisdiction, or if the act or omission was not a violation of the Code. The Commission’s executive director will be responsible for making this decision. Complainants will have 30 days to request a review of the decision by the Commission.
Although the report had recommended that only one commissioner be required to conduct the review, Bill 26 states that three commissioners will sit on a panel to consider applications for review. This is a positive change because, as noted in the report, many complainants are ineffective at communicating their complaint. As a result, some complaints initially appear to be frivolous or outside the Commission’s jurisdiction but are found to be valid during the investigation. Even with this increased supervision, there is a worry that some valid complaints may be dismissed prematurely.
One purpose of the Commission is to make remedies for human rights violations more accessible. Therefore, although investigating every single complaint may be unnecessary and cumbersome, we must avoid perceiving the workload as being a nuisance. The executive director and commissioners should exercise their power to dismiss complaints with great care, erring on the side of caution. If, as a result of this amendment, complainants will be expected to develop comprehensive cases at the outset, the Commission will fail to be substantially more accessible than the courts.
Changes regarding the Adjudication Panel appear promising. If passed, the Adjudication Panel will be required to keep to a new statutory timeline. Hearings will have to commence within 120 days of the appointment of the adjudicator. This should reduce delay. Additionally, adjudicators will be allowed to issue decisions orally before issuing them in writing. Prompt decisions may generate a greater sense of justice and completion to a hearing even though a written final decision that includes orders and damages may come months later.
The proposed amendment would also give the Chief Adjudicator the power to establish rules of practice that would be made available to the public. Currently, each individual adjudicator can establish their own procedures for hearings. There is an adjudication hearing guideline that provides a general overview of how it will proceed, while indicating the large amount of flexibility each adjudicator has.
It is beneficial for adjudicators to exercise their judgment to tailor their approach to particular circumstances before them. However, many respondents to a complaint may not have the ability or resources to defend themselves effectively, as they do not receive assistance from the Commission like the complainant does. Thus, having a consistent set of rules, agreed upon by the adjudicators, can make the process clearer and fairer to the party that does not have the benefit of having the Commission investigate and present their case.
Bill 26 addresses some challenges faced by The Manitoba Human Rights Commission. Changes to adjudication will likely help parties prepare effectively and receive timely decisions. The increased ability to dismiss complaints should aid in reducing backlogs but will require careful consideration. It will be important to follow-up and ensure that improvements in timeliness do not come at the cost of justice for those who need it.
Pro Bono Law Student
Disclaimer: This document does not contain legal advice. Pro Bono Students Canada (PBSC) is a student organization. This document was prepared with the assistance of PBSC law student volunteers. PBSC students are not lawyers and they are not authorized to provide legal advice. This document contains general discussion of certain legal and related issues only. If you require legal advice, please consult with a lawyer.
Photo by Mahesh Gupta on Unsplash
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