Ontarians will recall Tim Hudak’s proposal, during his campaign for leadership of the Progressive Conservative Party of Ontario in 2009, to “scrap” Ontario’s Human Rights Tribunal. In his recent campaign for Premier of Ontario, Mr. Hudak abandoned that idea in favour of reforming the existing system. Saskatchewan, on the other hand, has forged ahead with its own plans to eliminate its Human Rights Tribunal (the Tribunal) .
The Saskatchewan Human Rights Code Amendment Act, 2010, S.S. 2011, c. 17 (Bill 160) was introduced on November 29, 2010 by the conservative Saskatchewan Party government. It was proclaimed into force on July 1, 2011. Human rights complaints in Saskatchewan will continue to be received and investigated by the Saskatchewan Human Rights Commission (the “Commission”), but hearings will now be conducted by the courts. There are several other changes in Bill 160, including the following:
- A person filing a complaint must provide “sufficient evidence that reasonable grounds exist” for believing there has been a violation of the Saskatchewan Human Rights Code. Previously, a person only needed to believe that reasonable grounds existed to bring a complaint.
- Complaints must be filed within one (1) year of the alleged violation. Previously, the limitation period was two (2) years.
- The Commission may require the parties to enter into mediation, if there are no grounds to dismiss the complaint. Additionally, the Commission may dismiss the complaint if the complainant rejects a “fair and reasonable” settlement offer from the respondent.
- There is no administrative appeal from a Commission decision to dismiss a complaint.
- The Commission may apply to the court for a hearing of the complaint at any time. Parties to the hearing include the Commission, which will have carriage of the complaint, the complainant, and the respondent.
- The court has broad remedial powers, including ordering a respondent to comply with the Human Rights Code, adopt anti-discrimina tion/anti-harassment programs, reinstate a complainant to employment, compensate a complainant for all losses and expenses arising from the violation, and/or provide accommodation to the point of undue hardship.
- The court may award up to $10,000.00 if the respondent acted “wilfully and recklessly”, or the complainant has suffered injury “with respect to feeling, dignity or self-respect”.
- The court may not award costs to any party unless it determines that there has been “vexatious, frivolous or abusive conduct on the part of any party”.
Ontario’s human rights regime was substantially altered in June 2008, but in different ways than Saskatchewan’s. Prior to June 2008, individuals filed complaints with the Ontario Human Rights Commission, which investigated, mediated, and made decisions as to which complaints should be referred to Ontario’s Human Rights Tribunal for hearing. Now, complaints are filed directly with the Tribunal, which purports to take an active approach to adjudication, with greater emphasis on operational efficiency and expediency. However, the system still struggles to deal with a large number of complaints each year.
The new Saskatchewan regime is still in its infancy. Proponents describe it as a progressive, constructive model that is focused on finding resolutions (through alternate dispute resolution mechanisms) rather than confrontation. They also point out that the public lacked confidence in the “old” regime, because the Tribunal was not perceived as independent. Detractors, however, assert that judges do not have the same level of expertise in human rights matters as members of the Tribunal, and transforming the system involves an unnecessary expenditure of resources.
It will certainly be interesting to see whether the volume of complaints will change, and how court decisions will compare with old Tribunal decisions.