The Canadian labour relations community and the human rights community is likely to start expressing increasing concern about the questionable competency of the Canadian Human Rights Tribunal, given recent developments.
The Tribunal has come under public criticism recently for its failure to fulfill its mandate by failing to deal cases before it on a timely basis as well as for an apparent revolt of its own staff, alleging harassment by the new Tribunal Chair. (see: http://www.bcafn.ca/files/breaking-news-2011-03-01.php (text below)).
It is interesting to note that the Tribunal has yet to release its 2010 Annual Report, despite the fact that the books closed on 2010 seven months ago. Could the delay in issuing the report have anything to do with the Tribunal's embarrassment in its apparent inability to obtain a decision from the member who is deciding the Thwaites case some 18 months after the January, 2010 close of that hearing, given the Tribunal's own policy that its decisions be released within six months of the close of a hearing, if not sooner?
Its most recent decision, the Vilven-Kelly BFOR decision, can only add fuel to a fire that is burning robustly. Not only has the decision not yet been posted on the Tribunal web site over three weeks after the release of the decision to the parties, but the decision itself is a remarkable testament to the obvious difficulties that the Tribunal is having demonstrating that it is maintaining any adjudicative competence.
My point here is simply this. The July 8th decision clearly shows that the Tribunal, in considering the evidence and legal issues before it, obviously did not even bother to read the Supreme Court of Canada precedent case that sets out a mandated template for substantiating a BFOR defence. If I am in error on this, namely, the Tribunal did in fact read the Meiorin case before rendering this decision, the decision then indicates that the Tribunal failed to comprehend the most basic minimum legal principles set out in the SCC case, which, of course, is even more problematic.
What it did, instead, is simply quote the fundamental requirements of the SCC mandated test, the proceed to overlook the actual wording that it quoted and apply a completely different test, one that drops the required link between the employer's purpose in requiring mandatory retirement and the occupational basis of the defence—it overlooked the simple fact that a BFOR defence must compare the purpose of the discriminatory standard to the actual characteristics and tasks of the job that is required to be performed.
Even a lay person can understand the need for that link. Bona fide occupational requirement. Occupational requirement. Qualification and competency to perform the tasks required of the job. Simple. Obvious. But apparently not so simple and obvious to the expert Tribunal that is statutorily empowered with the exclusive jurisdiction to enforce the general prohibitions against discrimination enumerated in its enabling statute. Dangerous stuff, because getting this test wrong can have the impact of totally undermining the purpose and effectiveness of the entire Canadian Human Rights Act.
Embarrassing indeed, especially given the monkey wrench that this glitch in the adjudication process is likely to throw into the entire litany of litigation in this single case that has been going on now for eight years and that shows no sign of being resolved any time soon.
My legal beagle friends tell me that this decision, even though it will undoubtedly be overturned on appeal, will likely kill the scheduled hearing for the appeal of the Tribunal's November, 2010 remedy hearing this fall. Because the complaints were dismissed, the appeal of the remedy decision is now moot.
The decision could also have some adverse impact on the scheduling and adjudication of the other pilot mandatory retirement cases pending before the Tribunal.
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Chris Cobb, Ottawa Citizen, March 1 [2011]- The embattled Canadian Human Rights Tribunal was publicly rebuked Monday for a two-year delay in dealing with a case involving the welfare of First Nations children. In a pointed statement,
David Langtry, acting chief of the Canadian Human Rights Commission, said the tribunal's failure to deal with the two-year-old case was having a direct impact on the lives of vulnerable children.
In a parallel action, the Ottawa lawyer acting for First Nations communities filed a statement with the Federal Court asking it to force the tribunal to deal with the case. "It's not simply about money or financial damages," said lawyer Paul Champ, "it's about vulnerable children who are being denied the equal right to stay in their homes and communities. It's no exaggeration to say that more children are harmed every month that passes without this complaint being resolved." Champ says planned hearings at the tribunal were cancelled for no apparent reason.
Langtry agreed with Champ that the delays are harming children. "The hardship of children makes this an urgent matter," he said. At the heart of the case is the underfunding of child welfare agencies on reserves -a federal responsibility -compared with provincially funded child welfare agencies elsewhere in Canada. The complaint was brought to the commission by the Assembly of First Nations and First Nations Child and Family Caring Society of Canada against Indian and Northern Affairs Canada. Champ and other humanrights lawyers say internal strife at the tribunal is crippling its ability to do its work, which is to deal with cases referred by the commission.
According to the Public Service Alliance, five employees -roughly a quarter of the staff -have filed harassment-related complaints against tribunal chair Shirish Chotalia, the Calgary lawyer appointed in late 2009 by the Harper government. More than half of the staff have left for other public service jobs or been sidelined by stress since she took over.
Chotalia has refused to be interviewed about the problems and acting tribunal executive director Frederick Gloade did not return a call from the Citizen on Monday. The Privy Council Office has said it will investigate the tribunal's workplace problems but has yet to do so.
Langtry says the tribunal's decision on the First Nations case could be precedent-setting. "If it is determined that these services do not fall under the jurisdiction of the Canadian Human Rights Act," he said, "Canadians may no longer be able to file discrimination complaints in relation to services provided by the government."
Last edited by Mechanic787; 30th Jul 2011 at 20:27.