BarTalk December 2002
Volume 14, Number 6

Update on the Human Rights Code

by Sabrina Ali

In the 3rd Session of the 37th Parliament on May 30, 2002, the Honourable Geoff Plant, Attorney General and Minister Responsible for Treaty Negotiations introduced Bill 53, the Human Rights Code Amendment Act, 2002. Bill 53 introduced sweeping changes to the Human Rights Code and to the system designed to address violations of human rights.

The Bill makes many important and substantial changes to the current system, including the elimination of the Human Rights Commission, the discretion to order costs to be assessed, the power to order mediation, a reduction in the time within which a complaint may be filed, a different method of addressing systemic discrimination, a change in the method of providing counsel, and a fundamentally different approach to education and training on human rights. These changes were deemed necessary by the government after a thorough review carried out under the Administrative Justice Project indicated that the current system was not meeting the needs of British Columbians.

Regrettably, the time limitation provided for submissions fell far short of what was necessary for the preparation of considered, thoughtful submissions and many important stakeholders were unable to respond as extensively as hoped. The CBABC Equality Committee did made a submission to the Ministry of Attorney General.

What follows is an outline of the proposed changes to the Code and a brief description of issues raised by the Equality Committee.

The purpose of the Code was amended to exclude the monitoring of the progress in achieving equality in BC and the creation of mechanisms for providing information, education and advice necessary to achieve the purposes set out in the legislation, which has been one of the functions of the Human Rights Commission. The Equality Committee expressed concern that the proposed changes will effectively prevent the organization charged with human rights education from identifying patterns of discrimination.

The Human Rights Commission was eliminated. Although direct access to the Human Rights Tribunal ideally would address concerns that cases were being unfairly dismissed by the Commission, the Equality Committee was of the view that the new system will not result in a more efficient process. The Commission responded to some 19,000 inquiries and of these, roughly 124 were sent to the Tribunal for resolution in 2001. The new Code seeks to address concerns regarding a process to address systemic discrimination by allowing individuals or groups to become intervenors, either by application or by invitation of the tribunals, and by authorizing a new clinic that may assist in framing a complaint to address systemic factors. The Equality Committee expressed concern that individuals lack the resources to launch and successfully conclude complaints of systemic discrimination, thus without an individual complainant an issue of systemic discrimination may never be addressed by the Tribunal.

The Tribunal now has the ability to award costs and the power to mandate mediation. Furthermore, the time available to file a complaint has been reduced to six months, from one year. To file a complaint after the expiration of the time limit, the complainant must demonstrate that it is in the public interest to accept the complaint (in addition to the requirement that no substantial prejudice will result to any person because of the delay). In the opinion of the Equality Committee, these changes will act as disincentives to legitimate claimants commencing and pursuing human rights complaints.

The method of providing legal counsel has changed. The new clinic model will be publicly funded and assist parties throughout the progress of their complaint. The Ministry will mandate the BC Human Rights Coalition to provide parties with advice and assistance prior to submission of a complaint and if accepted by the tribunal, extend the assistance throughout the mediation and settlement discussions. This assistance will be available to both complainants and respondents. The Ministry will also provide resources to the Community Legal Assistance Society (CLAS) to provide legal counsel to parties when a lawyer is needed at a tribunal hearing. The Equality Committee does not agree that provision of assistance to all parties results in equality. The inequality of financial resources between complainant and respondent is not addressed by this measure. Further, the Equality Committee has concerns regarding conflict of interest in charging the same organization to advise both complainants and respondents in framing and advising with reference to the complaint.

Bill 53 also proposed the separation of education and adjudication functions, which may or may not be more efficient than the current system, however, there are concerns that an independent organization may not have access to information in order to provide the requisite education. Further, sufficient resources are required to properly educate and train the public with respect to human rights issues, and it is necessary, that regardless of the format, sufficient funding be allocated to perform this function. The Equality Committee recommended that broader, further and better consultation is required to address this issue.

The legislative changes flow from the Administrative Justice Project, announced July, 2001. The project has resulted in a flood of discussion and white papers on myriad topics, with typically little time for meaningful consultation. The proposed amendments to the Human Rights Code provide an example. A background paper was expected to be issued in November of 2001, with a White Paper expected to be released at a later date. Comments were requested by October 31, 2001. The background paper was released in December of 2001 with comments requested by February 15, 2002. Many stakeholders felt that the time for response precluded comprehensive submissions and made the decision to await the White Paper. In early 2002, the government announced that there would be no White Paper. Stakeholders were then effectively given little notice that their sole opportunity for consultation was to meet the February 15, 2002 deadline. Many stakeholders declined to comment, citing inadequacy of opportunity to consult and provide thoughtful submissions. Bill 53 was introduced on the last day of sitting of Parliament in its 37th session, on May 30, 2002. Comments were expected by October 15, 2002, with no submissions received after that date being considered. Given the extensive changes proposed by this legislation, it is imperative that stakeholders and the public be given a full opportunity to comment.

The short timeline for submissions to be filed seems to be a common problem that stakeholders are facing in the course of the Administrative Justice Project. The topics canvassed by this project are far-reaching and result in a complexity necessitating careful study. Stakeholders and the general public have effectively been accorded insufficient time for thoughtful review and comment on the proposed changes. As a result, many important stakeholders have been unable to provide proper submissions. Although it is not possible to quantitatively assess the likely result of these substantial government changes, there can be no doubt that they are profound and merit the input of all who have an interest in them.

Sabrina Ali, of Ali & Associates, is a Co-Chair of the Equality Committee.

This article was published in the December 2002 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.