Report cites 'overreliance on settlement to manage ever-increasing caseload'
The Yukon Human Rights Commission has been encouraging accused parties to settle their cases, and this is unfair, according to the province’s ombudsman.
Ombudsman Jason Pedlar, in a report, identified “operational issues that are unfair”, including gaps in policies and procedures, incorrectly interpretating the Human Rights Act (HRA) to meet their statutory obligations and “overreliance on settlement to manage an ever-increasing caseload”.
“A lack of such impartiality can be real or perceived and we found that the [commission] operates in such a way that unfairly creates at least the appearance of bias towards complainants during settlement discussions,” reads Pedlar’s report. “Bias, real or perceived, can undermine public trust in the operation of the [commission] and is a hallmark of fairness.”
There is rampant discrimination against Black and racialized employees at Canada’s Privy Council Office (PCO), according to a previous report.
Complaints against Yukon commission
The report comes after an investigation into three complaints against the human rights commission.
On Sept. 12, 2018, the commission accepted a complaint which named a complainant as the respondent in a human rights complaint by a former employee of their business.
The complainant said the commission’s employees misplaced documents provided to them, throughout the resolution process. They alleged that commission employees pressured them to settle the matter even though the complainant claimed that they were innocent, and that pressure amounted to harassment.
On Jan. 4, 2022, the Yukon Human Rights Panel of Adjudicators denied the complainant’s motion to have the matter dismissed without a hearing. On Jan. 7, 2022, the matter was settled before the panel met.
“Complainant One maintains that they only settled the matter out of fear that the Panel would be similarly biased and prejudiced against them,” according to the report.
A second complainant, in November 2022, brought an allegation of discrimination to the commission, claiming that there was a significant backlog in its caseload and that could lead to a significant wait time for an investigator to be assigned to the file.
In April 2023, a third complainant filed a complaint with the ombudsman’s office alleging unfair processes, bias, and undue delay.
“All three Ombudsman complainants allege that the Authority took too long to handle their human rights complaints and that this was unfair,” said Pedlar in the report. “As such, it is important to explore the role of fairness in the context of evaluating delay. This role has a necessary legal dimension that, once explained, frames and informs the issues.”
The ombudsman found, among others, that the commission has a practice of having legal counsel write decisive memos regarding that is “unfair to complainants” and that the commission encourages settlement “within ranges that have no rigorous evidentiary basis”.
Also, several of the commission's policies and procedures do not align with its statutory authority, according to the report.
In February, a coalition of Canadian human rights groups and unions filed a systemic discrimination complaint against the CHRC.
Recommendations for the commission, Department of Justice
In the report, the ombudsman made the following recommendations for the commission:
- Implement a written policy on exercising its discretion regarding the application of each applicable subsection of s.20(1) of the Human Rights Act (the “HRA”) within 12 months of the date of this report.
- Expand and clarify its written procedures of the HRA “fair and reasonable” evaluation in s.20(1)(g) within six months of the date of this report.
- Submit recommendations to the Executive Council to harmonize the HRA with its regulations such that it addresses the concerns and gaps identified in this Report. To be completed within 12 months of the date of this report.
- Map current duties of general counsel for the Authority and identify instances where activities could be performed by the Director and/or an HRO – operational constraints notwithstanding. To be completed within 12 months.
- Evaluate and select comprehensive case management software which monitors and tracks key performance indicators for all relevant statistics within 12 months of the date of this report.
As some of the issues surrounding funding, independence and amendments to the HRA are beyond the control of the commission, Pedlar also made the following recommendations – among others – to the Department of Justice:
- Amend the HRA so that the Authority is funded directly by the Legislative Assembly. Alternatively, allow the Authority the opportunity to make submissions on its budget directly to the Management Board.
- Remedy the concerns and gaps identified in this Report by creating, in consultation with the Authority, new or amended regulations to clarify and harmonize the HRA with its regulations.
- Amend the HRA so that the Commission (defined below) is increased from a maximum of five members to a maximum of seven, as described in s. 17 of the HRA.
A previous report noted a “systemic mismanagement” within the B.C. Public Service Agency.
The commission accepted all recommendations from the Pedlar.
“We uphold the values of fairness and transparency and justice like the ombudsman does, and we have no interest in resisting any effort to improve our practices and better serve the public," said Karen Moir, director of the Yukon Human Rights Commission, in a CBC report.
However, Moir said she does "not expect" the commission to comply with all recommendations in time given their current resources.
The Department of Justice, meanwhile, accepted two of the three ombudsman recommendations.
They did not accept the recommendation to amend the Human Rights Act so the commission would be directly funded by the Legislative Assembly as the justice department determined it was outside the department's jurisdiction, according to the CBC report.
