Association of Justice Counsel files grievance against Canadian Human Rights Commission, amid ongoing complaints of racism, discrimination

Of note and to watch:

The Association of Justice Counsel filed a grievance against the Canadian Human Rights Commission last week on behalf of its Black and racialized members, and, according to a number of sources with information about the commission’s operations, they say there is ongoing systemic discrimination and a disproportionate dismissal of race-based complaints at the commission.

The AJC, which represents around 2,600 lawyers employed by the federal government who work for the Department of Justice, the Public Prosecution Service of Canada, and provide in-house legal services to various federal agencies, tribunals and courts across the country, also includes members who are lawyers with the Canadian Human Rights Commission.

The AJC says it reactivated its policy grievance on Dec. 17, which it previously filed with the Treasury Board on behalf of their Black and racialized members at the CHRC, in October, after employees raised issues of system racism with CHRC management and after CHRC Chief Commissioner Marie-Claude Landry issued a statement on June 2 in support of Black Lives Matters.

The AJC says Black and racialized employees took the CHRC chief commissioner up on her statement in support of Black Lives Matters and provided the CHRC with a list of recommended actions to address “the complaints process, practices, and operations as well as shared Black and racialized employees’ experiences,” but said the CHRC responded by conducting a “unilateral, non-inclusive investigative process.”

The policy grievance argues that a contract has been breached. Following the filing of a policy grievance and when the employer responds, the parties involved negotiate to understand if compensation is possible. The Federal Public Sector Labour Relations and Employment Board administers the collective bargaining process and the adjudication of grievances and complaints for the federal public sector and parliamentary employees.

“Together, the AJC and other bargaining agents representing Black and racialized members at the CHRC, have been pressing the CHRC to revisit its plans to ensure meaningful collaboration, transparency, fairness, inclusivity, credibility and psychological health and safety in their approaches,” according to the AJC’s Dec. 17 statement. “While the AJC and other [bargaining agents] have been engaging with the CHRC over the past few months, it’s apparent that trust in management’s ability to appropriately deal with the challenges before them has been put to the test as management appears to have lost the trust of those Black and racialized employees who have come forward.”

The AJC originally filed the grievance relating to racism and systemic discrimination at the commission in October, according to David McNairn, president of the counsel.

“We asked for that policy grievance to be held in abeyance while we tried to work on this issue, and recently, we’ve decided that it’s appropriate to move ahead with that,” said Mr. McNairn in an interview with The Hill Times last week.

“That policy grievance, unless it’s resolved, it would end up going directly before the board,” said Mr. McNairn, who also said that the AJC has had discussions with the management of the CHRC and have communicated about a number of items which they believe need to be done to address the situation.

“It’s a very sad and tragic story where the Canadian institution which is entrusted with protecting Canadians from racism and discrimination is itself, apparently, a source of racism and discrimination,” said Mr. McNairn. “There cannot be a greater tragedy than that, in my view. Obviously the commission has an incredibly important leadership role in setting standards for eliminating racism and systemic discrimination and has a mandate to protect Canadians.”

“So it’s extremely difficult to understand, but we have members who are employees there who are raising these issues with us, and we obviously want to stand behind our members and bring about some sort of meaningful change,” said Mr. McNairn.

According to the AJC’s website, earlier this year, employees at the commission raised issues of systemic racism with CHRC management and sought the assistance of their unions.

“When the CHRC issued a statement in support of Black Lives Matters, Black and racialized employees took the chief commissioner up on her invitation in that statement and provided the CHRC with a list of recommended actions to address the complaints process, practices, and operations as well as shared Black and racialized employees’ experiences,” according to the AJC’s website. “The commission responded by conducting a unilateral, non-inclusive investigative processes involving outside parties without consulting employees or their bargaining agents.”

‘The CHRC needs to be reformed’

Billeh Hamud, a lawyer who has represented clients at the Ontario Superior Court of Justice, Divisional Court, the Federal Court of Canada, and the Human Rights Tribunal of Ontario, told The Hill Times that “as someone who has practiced in this area, [the CHRC] needs to be reformed.”

“Based on my experience, part of the problem with the commission’s complaint process is their application of the case law with respect to racial discrimination,” said Mr. Hamud. “The commission applies a stricter test of racial discrimination when reviewing complaints than the courts and tribunals. As a result, cases with merit are being rejected by the commission.”

“It’s always subtle,” said Mr. Hamud.

Mr. Hamud also said the current system is contrary to our adversarial system of justice in Canada and that specifically, complainants do not have direct access to a third party decision maker who has heard the evidence, the merits of the complaint and can make a decision.

“What’s happening with the commission right now is because you have people who do not understand the case law in terms of racial discrimination when it comes to employment, for example, and they’re making decisions [and] not referring it to the Tribunal when in most cases, they should,” said Mr. Hamud.

According to documents obtained by The Hill Times, which outline the complaints referred to the Canadian Human Rights Tribunal by ground of discrimination from 2014 to 2020, 18 complaints were received from 2014-2017 on the grounds of race, with 56 referred between 2018-2020, for a total of 74.

Accepted complaints by grounds of discrimination from January 1, 2020 to November 11 2020, came to 261, with national/ethnic origin complaints coming in at 263.

Complaints referred to the Canadian Human Rights Tribunal by grounds of discrimination between January 1, 2020, to November 11, 2020, came to 47. Complaints referred as a function of national/ethnic origin came in at 44.

The Hill Times requested an interview with the Canadian Human Rights Commission, a request which was originally granted with a scheduled discussion with Chief Commissioner Marie-Claude Landry shortly before spokesperson Véronique Robitaille informed our paper that “because of shifting circumstances around the litigation process, we are unable to provide an interview for you today.”

According to the CHRC’s statement, “more than two years ago, we began a commission-wide process of internal reflection to strengthen the commission and its processes. Like many organizations, we recognize that there is much work to do to fully achieve equality and inclusion. That is why the commission has been examining how racism may manifest itself within our organization and what steps might be needed to address it.”

“While we’re pleased that the Treasury Board Secretariat reported this year that the commission was the only public service organization of its size to meet or exceed the Government of Canada’s targets for representation of all employment equity groups, we are committed to doing even more. We recognize that the Employment Equity Act, which is the basis for the TBS evaluations, needs to be modernized, and the CHRC will continue to advocate for this,” according to Ms. Robitaille.

“We know that Indigenous, Black and other racialized people face many societal, institutional and structural barriers to equality. That is why work is underway to ensure that the views and perspectives of Indigenous, Black, and other racialized employees on barriers that may exist within the Commission are heard and addressed.”

Ms. Robitaille also told The Hill Times that regarding the commission’s complaints screening process, they have solicited advice from experts over the past year, including from racialized communities from across the country, on how we can improve our complaints processes.

“Based on this and staff feedback we are making significant changes to the complaints screening tools that we use. We have also brought in experts to train our employees and commissioners, including specialized training on handling of race complaints, and launched a project to collect disaggregated data on our race-based complaints, a key recommendation which has been put forward by staff and stakeholders,” said Ms. Robitaille. “Early indications are that these changes are having a positive impact on the treatment of race-based complaints.”

Current model of the commission as ‘gatekeeper’ of complaints should be eliminated, according to report

Former Supreme Court of Canada judge Gérard La Forest, who was appointed to the top court in January 1985 and retired in 1997, chaired a panel’s report called Promoting Equality: A New Vision in June 2000 that was tasked with reviewing the Canadian Human Rights Act, decades following its passage in 1977.

According to the Canadian Bar Association at the time, “the current model of the commission as a ‘gatekeeper’ of complaints should be eliminated.”

“Victims of discrimination should be able to pursue their complaints even if the Commission does not want to be involved. We suggest a model for individual complaints which gives less of a role to the Commission as an investigative body and more to the Tribunal as an adjudicative body. The Commission should be the first point of contact for a complainant, and the Commission should make a quick determination as to whether it wants to be involved,” according to the report.

Finally, according to the Coalition for Reform of the Ontario Human Rights Commission who were cited in the report, “the existing commission style model does not reflect this fundamental distinction between public and individual interests.”

“By forcing all individual complainants to pass through the gatekeeper, there is no opportunity to directly present evidence to a decision-maker with the power to issue an enforceable order. This model creates a system that is paternalistic, disempowering and ultimately discriminatory because the only people in Canada who are forced to go through the system are the ones who are already identified as disadvantaged,” according to the report.

Atong Ater, member of the Federal Black Employee Caucus’ (FBEC) core team, told The Hill Times that “given what we have been hearing from within the Commission, particularly over the past summer, we couldn’t necessarily, in good faith, continue to engage with them.”

Ms. Ater said they informed the commission that in September, they would be putting a pause on engagements until there was progress that adequately recognized and meaningfully addressed the concerns of their Black and other racialized employees that they were bringing forward.

The AJC’s resumption of the policy grievance comes on the heels of a proposed class-action lawsuit by 12 former and current Black federal public servants alleging that Black employees have been systematically excluded from advancement and subjected to discrimination within the government for decades.

The representative plaintiffs, who have or continue to work for a number of federal departments, are seeking $900-million in damages as well as a mandatory order to implement a Diversity and Promotional Plan for Black Public Service Employees related to the hiring and promotion of Black employees within the public service.