Focus: Canadian Human Rights Commission Releases Complaint Rules

In late autumn 2019, the Canadian Human Rights Commission (the “Commission”) released Complaint Rules (the “Rules”) with the objective of ensuring an efficient and effective process for complainants filing a complaint with the Commission. The importance of this cannot be understated. The Commission has jurisdiction to accept claims of discrimination committed in violation of the rights protected by the Canadian Human Rights Act (the “CHRA”). According to the Commission’s 2018 Annual Report, approximately 25,000 individuals contacted the Commission in 2018 seeking to file a complaint. And while only a fraction of those individuals proceeded to file a complaint, the Commission accepted 1,129 complaints, with 49% of accepted   complaints originating from Ontario and 52% of said complaints identifying “disability” as at least one of the grounds on which they had experienced discrimination (CHRC Annual Report p. 37-43).

Rules of procedure are necessary in order to ensure that persons filing human rights complaints are well informed and understand what to expect from the process. Moreover, this need is heightened at the Commission where many complainants are unrepresented. Examples include, but not limited to, the interpretation of limitation periods;  maximum length of complaints; methods by which complaints can be filed; and, information about the overall process and next steps.

As such, steps taken by the Commission to make such Rules public is a welcome start. The Commission itself has noted that many persons have complained that accessing the Commission’s services was confusing, difficult and intimidating (CHRC Annual Report p. 32). As such, any steps taken by the Commission to make the process less confusing and intimidating is a step in making the process itself more accessible.

In saying this, however, it is ARCH’s position that the Rules in their current form, fall short of attaining their objective for multiple reasons. ARCH was consulted by the Commission and made recommendations to revise its draft from a disability-rights perspective both orally and in written form.

Unfortunately, the current version of the Rules do not reflect any of the recommendations proposed by ARCH. Nevertheless, we believe these recommendations are important in order to achieve the Commission’s objective and, as such, have summarized them below. To review ARCH’s submissions filed October 18, 2019 in full, click here. The following represent key concerns with the new Rules:

• Accessibility and Disability-Related Accommodations – ARCH made recommendations generally about the rule for requesting accommodation. Specifically, that it should not be lumped in under Rule 6 which speaks to “Application” of the Rules. Rather, the Rules should be drafted to provide for a new stand-alone rule specifically contemplating accommodations and accessibility of the process. This new rule should communicate clearly to complainants the necessary information including how to request an accommodation, to whom the accommodation request should be made, when an accommodation request can be made, and confirmation that accommodation requests would be addressed in confidence. Further, rather than using “reasonably necessary” to denote the level to which the Commission must rise to meet an accommodation request, the Rules should contemplate stronger, human rights language such as “appropriate accommodations up to the point of undue hardship.”

• Forms Acceptable to the Commission and Filing Deadlines – ARCH made submissions regarding the criteria that must be met in order for a complaint form to be deemed acceptable by the Commission. Specifically, ARCH made submissions about how the Commission considers the filing date of a complaint to be the date on which a final updated or revised version is submitted to the Commission and not the date on which the complaint was first filed. This is problematic considering the stringent criteria set out in Rules 7.1 to 7.4 and could leave complaints in a the precarious position of having their complaint re-submitted, and accepted by the Commission, beyond the one year limitation period.
  
  Accordingly, ARCH suggests that the Rules should be amended to state that the filing date of an application will be the first date on which a complainant submits their complaint. Where the Commission determines that any criteria is missing, then a complainant should be permitted to amend their application to ensure that the procedural requirements are met without altering the original filing date.

• Support Persons Do Not Have an Independent Responsibility to the Commission – ARCH recommended that the Rules should be drafted in such a way to reflect that a support person is an accommodation and not a separate individual who owes an independent duty or responsibility to the Commission. Rule 11.1 contemplates “support persons” for the first time in the Rules and asserts that they have a responsibility to cooperate with the Commission at all stages of the complaint process.
  
  It is important to recognize that support persons are present, not as individuals with their own agenda or interests in the complaint, but rather as an accommodation that enables the complainant with a disability to access the complaint process.

• The Importance of Sign Languages – ARCH recommended that the Rules clearly state that Commission’s services are available in “French, English and Sign Languages.” As a Commission whose objective is to protect and promote human rights, and to provide an accessible complaint process, the Commission’s Rules should reflect that the forum is inclusive not just to those speaking Canada’s official languages, but also to persons from the Deaf community whose first language is neither English nor French. This is especially imperative considering that the recently enacted Accessible Canada Act, specifically contemplates the recognition of sign languages.

Conclusion

The codification of the Commission’s Rules and process is the step in the right direction in its aim of making the process more transparent and accessible to complainants. However, considering that the majority of the complaints filed with the Commission are based on the ground of disability, it is imperative that the Rules contemplate and communicate its accessibility process to ensure that persons with disabilities are able to fully participate. By the same token, considering that many complainants filing complaints with the Commission are unrepresented, it is important to ensure that the Rules do not place a disproportionate burden on complainants by dictating specific criteria, that if not fulfilled increase the probability that a complaint will fall outside the limitation period. ARCH’s recommendations would facilitate a clearer process by which disability-related accommodations can be requested and filing dates calculated,  roles of support persons are clarified without additional barriers created, and sign language interpretation is made available.   ARCH maintains its positions that these recommendations are crucial to ensuring a transparent, inclusive and accessible process.