PACC Committee Meeting

STANDING COMMITTEE ON PUBLIC ACCOUNTS

COMITÉ PERMANENT DES COMPTES PUBLICS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 27, 1998

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[English]

The Chairman (Mr. John Williams (St. Albert, Ref.)): Good afternoon, ladies and gentlemen. I now call the meeting to order, pursuant to Standing Order 108(3)(e), consideration of chapter 10, Canadian Human Rights Commission, Human Rights Tribunal Panel, of the September 1998 report of the Auditor General of Canada.

Our witnesses today from the Office of the Auditor General of Canada are David Rattray, Assistant Auditor General, audit operations branch; and Alan Gilmore, principal, audit operations. From the Canadian Human Rights Commission, we have Michelle Falardeau-Ramsay, chair; and John Hucker, secretary general. From the Canadian Human Rights Tribunal, we have Anne MacTavish, chairperson; and Michael Glynn, registrar.

We have opening statements by the Auditor General and by the Canadian Human Rights Commission. So I would ask Mr. Rattray to proceed with his opening statement.

Mr. David Rattray (Assistant Auditor General, Audit Operations Branch, Office of the Auditor General of Canada): Thank you, Mr. Chairman, for this opportunity to discuss with you our audit of the Canadian Human Rights Commission and the Human Rights Tribunal Panel.

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As you indicated earlier, with me is Mr. Alan Gilmore, principal, who is the primary author of today's report.

Parliament created the Canadian Human Rights Commission and the Canadian Human Rights Tribunal Panel in 1977 to resolve human rights complaints quickly, impartially and expertly. This reflects a fundamental consensus among Canadians that human rights should be protected and promoted. However, our audit found that the approach that has evolved is cumbersome, time-consuming, and expensive.

Since 1987 the commission and the tribunal have received about $175 million to address complaints, as well as to promote human rights. These expenditures do not include substantial expenditures by complainants or by respondents who often are government departments and agencies, Treasury Board, and crown corporations.

The commission's standard for completing investigations is nine months, and about one year for reaching final decisions. We found that complaints take a much longer time to resolve. On average, between 1988 and 1997 it took the commission 27 months to reach final decisions on complaints.

Specifically, it took about 25 months to decide to dismiss cases due to lack of evidence—about 34% of cases are dismissed; about 23 months to decide not to proceed further on cases, primarily because complaints were settled or withdrawn—about 31% of cases fall into this category; and an average of about 45 months to reach final decisions on the 7% of cases that were first investigated and then sent to conciliation.

Since January 1993, the commission has had information on the time taken to address pay equity complaints. Since that time, 36 pay equity complaints have been filed; 23 of these have been on file for over three years.

It may take several more years to resolve a complaint if they are forwarded to the tribunal for adjudication, and if decisions of the commission and of the tribunal are appealed for judicial review by the Federal Court.

The commission considers the case to be in its backlog if it is still being investigated nine months after being signed. Between 1991 and 1995, the commission's backlog ranged from 62% to 72% of its open cases. In 1997, almost one-half of the commission's cases were still being investigated one year after the complaint was signed.

[Translation]

The situation we have described is not new. For example, in 1985, we reported that the Commission was experiencing major delays and backlogs in handling complaints.

Since our 1985 audit, the Commission has made major efforts to try to improve its efficiency and effectiveness. For example, since 1994, it centralized its investigation function in Ottawa and it revised its complaints management process to permit early identification of complaints that did not require investigation beyond obtaining basic facts.

To eliminate the backlog of complaints, the Commission requested and received a permanent annual funding increase starting in 1989-90 of about $411,000 for nine new investigators and a one-time funding of $400,000 in 1992-93. The Commission also internally reallocated about $1 million between 1992-93 and 1997-98 to reduce the backlog.

Because the challenges the Commission faces are fundamental and interrelated, attempts to improve the situation by focusing on revising the investigation process and spending more to reduce backlogs have not worked as well as expected.

[English]

The tasks facing the commission and the tribunal are challenging by any measure. Thus, considerations for modifying the current system should take into account the environment and the expectations that face these bodies.

For example, the grounds of prohibited discrimination are increasing and are becoming more complicated. The commission's investigations form the basis for decisions involving fundamental human rights in an increasingly litigious and contentious environment.

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The courts have required the commission to disclose more information to parties, and have recommended that it provide reasons for its decisions. The current roles played by the commission require a careful balancing of its social policy advocacy role with its role as an impartial investigator, in a manner that maintains the credibility of its impartiality.

There also has been a high turnover of commission investigators. Since 1995, 15 investigators have left the unit that handles most complaints. It takes about a year for an investigator to become fully functional. At the time of the audit, 14 of the 22 investigators in the unit had less than a year's experience. The situation contributes to delays in investigating complaints.

Parliament established the Canadian Human Rights Commission and the Human Rights Tribunal Panel to address fundamental concerns about human rights. These concerns need to be addressed efficiently and effectively. The Minister of Justice has undertaken to conduct a broad review of the Canadian Human Rights Act. We agree that a broad review by Parliament is needed.

Because the challenges of addressing human rights complaints and the potential solutions are fundamental and interrelated, the problems cannot be solved piecemeal, and they cannot be simply solved by providing more resources. A set of carefully considered and integrated legislative and administrative measures is needed, including periodic reviews by Parliament of the impact and relevance of the grounds of discrimination; clarification of the roles of the commission and the tribunal, particularly the commission's mandate to promote human rights; development and adherence to standards, by regulation if needed, that safeguard the reliability, partiality and transparency of its investigation, conciliation and decision-making processes; and immediate steps to train and retain an experienced investigative staff.

Alternative ways of addressing complaints also need to be established. For example, to reduce the number of complaints that need to be investigated, the commission could use early voluntary third-party neutral mediation to try to resolve complaints. We believe this could substantially reduce the number of complaints that need to be investigated.

In some cases before the commission, both complainants and respondents have substantial resources and expertise to present evidence and argue positions. Such parties may not need the commission's assistance. Allowing them to take their cases directly to the tribunal or to the Federal Court could make the system more effective. This could significantly reduce the amount of resources that the commission needs to devote to such complaints. Allowing the parties to go directly to the tribunal or to the Federal Court could speed up the resolution of cases. If parties were allowed to go directly to the Federal Court, the need for a tribunal would have to be re-examined.

In summary, the adoption of these measures could free up substantial resources and allow for alternative ways to address human rights complaints efficiently and effectively. In closing, I would like to reiterate my concern about the human and financial cost of the current system. Because we're dealing with fundamental human rights, I believe the issues that we have raised require immediate attention. Thus, I recommend that your committee consider establishing a clear deadline for the Department of Justice to provide Parliament with specific legislation and other measures that may be required to address these issues.

Mr. Chairman, this concludes my opening statement, and we would be pleased to answer any committee questions.

The Chairman: Thank you, Mr. Rattray.

Just as a point, I understand that we have one other person here from the Department of Justice but who is not an official witness today. I understand that she is prepared to advance to the microphone to answer questions if questions are put to her. That person is Pat Linsdey, who is a counsellor from the public policy section of the Department of Justice.

I would now ask Madame Falardeau-Ramsay to present the opening statement from the Human Rights Commission.

[Translation]

Ms. Michelle Falardeau-Ramsay (Chief Commissioner, Canadian Human Rights Commission): Thank you, Mr. Chairman. First of all, I would like to thank you for having invited me to discuss the recent report on the Canadian Human Rights Commissioner by the Auditor General of Canada.

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The Commission plays an important role in ensuring that Canadians are treated equally and can contribute fully to our society. Under the Canadian Human Rights Act, we are charged by Parliament to investigate and deal with complaints of discrimination relating to such prohibited grounds as race, religion, age, sex, sexual orientation and disability. In addition, the Act that created us and which we administer, mandates us to promote human rights in Canada through public information programs to foster understanding and recognition of human rights principles. More recently, the Employment Equity Act has required us to see that the Public service and all large federally regulated employers develop and implement plans to ensure that their labour forces include a fair share of women, visible minorities, Aboriginal people, and people with disabilities.

These are not easy tasks, and they have become increasingly complex as our society evolves and as our understanding of human rights deepens. When we began our work in 1978, many of our cases dealt with direct acts of discrimination, such as firing a woman who became pregnant, for example. But today, we are asked to examine more complicated questions, such as whether all bank machines should be accessible to people with disabilities, and within what time frame.

I am proud of the work we have accomplished towards human rights goals, despite substantial reductions to our funding. And I'd also note that the Commission now hands down more decisions than we did ten years ago, despite the increasing complexity of the complaints.

[English]

But long before the Auditor General began his examination, of course, we were aware of the delays. We had already started to take action to deal with them, including the following specific initiatives: streamlining our processes internally; beginning to use alternative redress systems for certain types of complaints; promoting early resolutions of complaints; and examining mediation as an option in the process. I can assure you that we intend to continue these efforts until we have arrived at solutions to those problems that are within our control, so that Canadians receive the service they have a right to expect.

We are putting together a task group to focus on clearing up delayed complaints. To ensure success in the longer term, we are providing more specialized training to staff, and we have instituted a human resources plan that should help us retain trained and experienced investigators. We will also be placing more reliance on mediation and other less combative methods of dispute resolution than have been available through the formal complaint process.

In addition, we are examining our operational service standards and are seeking ways to accelerate the investigation process. Our plans are now well underway, and we will be requesting additional funds to supplement the actions we are taking internally. I am confident that these continuing efforts will allow us to be on a firmer footing within two years.

[Translation]

The Auditor General also commented on the Commission's dual roles of promotion and enforcement. First, I would like to emphasize that we do not view our role of promoting human rights as a secondary or optional task. The Canadian Human Rights Act includes the development and conduct of public education programs as a statutory responsibility. It is a job we take seriously, and that we believe is important in preventing discrimination and in building a society predicated on equality for all.

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I can also assure you that I, the other Commissioners, the senior officials of the Commission and the human rights officers, all understand that it is our duty to be fair and impartial. When the Commissioners meet, we base our decisions on the evidence brought before us on each case.

Mr. Chairman, I would like to conclude by saying that we are determined to continue to address the challenges we face as effectively as we can. I believe there is much that we, as a Commission, can do to continue Canada's proud human rights record.

I am happy to answer any questions you may have. Thank you.

The Chairman: Thank you very much.

[English]

I understand Ms. MacTavish from the Canadian Human Rights Tribunal has an oral statement not exceeding five minutes. It's an oral statement; it hasn't been prepared in advance or distributed.

Ms. MacTavish.

Ms. Anne MacTavish (Chairperson, Canadian Human Rights Tribunal): Thank you, Mr. Chair, honourable members.

[Translation]

I am happy to have this opportunity to comment on the auditor general's report as it relates to the Canadian Human Rights Tribunal.

[English]

At least until recently, the Canadian Human Rights Tribunal has laboured in relative obscurity. Most Canadians remain unclear as to who we are and what it is we do. Although I understand the focus of today's discussions will be on the recent report of the Auditor General, I would also be pleased to answer any questions you may have with respect to the mandate and operations of the tribunal.

Firstly, let me say how pleased we were to have had our procedures and policies reviewed by Mr. Gilmore and his staff. This was the fist in-depth audit of the tribunal in its 20-year history, and we were most anxious to receive whatever comments and recommendations the Auditor General could offer to improve our service to Canadians.

The Auditor General's staff informally provided us with a number of observations and suggestions they did not include in their final report. We welcomed their guidance and experience in identifying various areas for improvement, and we have taken the necessary steps to implement these suggestions.

As noted in the tribunal's response contained at the end of the chapter, we are in general agreement with the comments made by the Auditor General insofar as they relate to the Canadian Human Rights Tribunal, and with the recommendations contained in the report. Indeed, the concerns identified by the Auditor General are not news to us. For the most part they are issues that have concerned the tribunal for some time, which we began actively to address long before the Auditor General began his audit.

The principal concerns identified by the Auditor General as they relate to the tribunal are timeliness, independence, the appointment process, and reporting. Some of these concerns have been addressed by the amendments to the Canadian Human Rights Act that came into force on June 30, 1998. I'll address each of these issues very briefly in turn, dealing first and foremost with the issue of timeliness.

We agree with the Auditor General's conclusion that the human rights adjudication process takes too long. In an effort to address this, we have taken a number of steps to make the process more timely and efficient. We have introduced alternate dispute resolution processes into the tribunal system. To date, 34 complaints have been referred to mediation, of which 24 have settled, for a success rate of slightly over 70%.

These settlements have resulted in tremendous cost savings to the taxpayer, but more importantly have enabled the parties, many of whom have ongoing employer-employee relationships, to craft a resolution to their dispute that best meets each of their respective needs and interests.

In addition, through the use of mediation, cases are being resolved far more quickly than in the past. The average time for a case to be processed by the tribunal has gone from 17.5 months in 1994 to 7.25 months in 1997. We are about to embark on a review of our mediation initiative with an eye to formalizing the process and standardizing our approach. In-depth training in mediation techniques will also be provided to members of the new tribunal.

Not every case can be successfully mediated, however. Many cases, especially those of significant precedential value, require a full hearing. We have also been working to make our hearing processes more expeditious.

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Bill S-5, for the first time, gives the tribunal the power to make rules of procedure and to create time limits in which hearings must be held and decisions rendered. We have been working on such rules of procedure for many months and are in the final stages of consulting with the stakeholders. We expect to have the rules in place by the new year.

The appointment of full-time members of the tribunal should also help to speed the process. In the past, tribunal members were all part-time and they would have to juggle commitments in their outside lives with their tribunal responsibilities, which inevitably led to scheduling delays. The new act allows for the appointment of both full-time and part-time members. The tribunal's ability to schedule hearings efficiently should be improved as long as a reasonable number of full-time members are appointed.

We note that as an administrative tribunal, the Canadian Human Rights Tribunal must be flexible. However, it must also resolve increasingly complex disputes in an atmosphere that the Auditor General himself has identified as increasingly litigious and contentious. We must do all of this and still comply with the requirements of procedural fairness and natural justice.

The adjudication process must allow the parties to see and to believe that someone in authority is hearing their concerns and will deal with the issues in a fair and impartial manner. The commission does a very good job of resolving many of the disputes that come forward. The few cases that they refer to tribunal are often the novel ones, the difficult ones, and the complex ones. To deal properly with these cases takes time. A faster and shorter hearing does not always lead to a more effective system, nor does it always allow for justice to be done.

However, there are areas within our control where we can improve. For example, we must set hearing dates quickly and early. We must only assign members to cases who are available on the dates that have been set. We must ensure that any delays are not caused by our members or by the tribunal registry. Finally, we must issue our decisions more quickly. These we must do, and these we will do.

The independence of the Canadian Human Rights Tribunal has been an ongoing concern for more than a decade, culminating last March in the decision of the Federal Court of Canada in the Bell Canada case, where it was found that the old human rights tribunal system lacked the necessary institutional independence so as to be able to provide a fair and impartial hearing. Many, although not all, of the concerns identified in the Bell case have been resolved by Bill S-5. However, the challenges to the independence of the system continue.

We recognize the necessity of the tribunal having as much institutional independence as possible and have taken all steps possible on an administrative level to see that happen. We wholeheartedly endorse the recommendations of the Auditor General in this regard.

In a similar vein, we accept and endorse the recommendations of the Auditor General with respect to the appointment system. In our view, the credibility of the human rights adjudication system in Canada can only be enhanced by an open, transparent appointment process. We are pleased that Bill S-5 imposes mandatory statutory qualifications on individuals in order to be eligible for appointment to the tribunal.

We will continue to make training for these members a priority. With a smaller number of members, more frequent and extensive training programs are now possible. A three-week-long initial training session has now been scheduled for the new tribunal for this spring.

With respect to the concerns relating to performance standards and reporting, a more detailed explanation of our goals, objectives, and measurable results will be included in our fall performance report. We are confident that these measures will fully address and answer the concerns raised by the Auditor General insofar as they are within the control of the Canadian Human Rights Tribunal.

[Translation]

Thank you. I am willing to answer questions from committee members. Thank you.

[English]

The Chairman: Thank you, Ms. MacTavish.

Mr. Mayfield, you have eight minutes.

Mr. Philip Mayfield (Cariboo—Chilcotin, Ref.): Thank you very much, Mr. Chairman.

I'd like to first of all begin by thanking the members of the Auditor General's department and members of the commission and the tribunal for attending today. I appreciate your presence very much.

I want to first of all make reference the commission's performance report for the period ended March 31, 1997, in which you informed Parliament that “Most investigations are now completed within nine months from the date the complaint is filed, and our backlog of complaints has been largely eliminated”.

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The Auditor General's report tells us that since January 1996 the commission took about 23 months to reach 1,170 final decisions. It took three or more years to reach a decision in about 16% of the cases before you. He then informs us that in 1997 the commission had about 900 open cases, of which 40% were in the backlog. The question I have is how can this committee reconcile the audit observations of the Auditor General with the comments in the introduction of your performance report?

Ms. Michelle Falardeau-Ramsay: We didn't use the same method of calculating what is in the backlog and what is not in the backlog. Also, I have to say the figures we have concerning the Auditor General's reports were based on a small sample of cases. If I remember well, it was based on about 40 cases out of 8,000 cases that were dealt with by the commission. So there is a strong possibility that our figures were not exactly the same. If I look at...

Mr. Philip Mayfield: Pardon me, Madam. The Auditor General mentions about 1,170 final decisions, so this is more than just a 40-segment sample. It seems to me we have to talk in at least the same terms the Auditor General is using here.

Ms. Michelle Falardeau-Ramsay: I think that in this case, and correct me if I'm wrong, the Auditor General went back 20 years, while you see our figures are annual.

The Chairman: Did you want the Auditor General to respond to the commission, Mr. Mayfield?

Mr. Philip Mayfield: I would like him to. I look at the Auditor General's comment that in 1997 the commission had about 900 open cases.

A voice: Mr. Chairman, I would ask Mr. Gilmore to respond to that.

Mr. Alan Gilmore (Principal, Audit Operations, Office of the Auditor General of Canada): We took the database the commission puts together to manage all its cases, so we had roughly all the cases of the last 20 years. We chose the period of the last ten years after some discussion with the commission to give us a more current figure. Then we chose the last few years to deal with the backlog.

The 40 cases involved were those we looked at in detail to deal with the question of standards, not the question of the timelines. So we've got every case in the commission's database from the last ten years, which means every case they've looked at during that time, and we're judging and calculating the timelines on them.

Mr. Philip Mayfield: Do you see the statement about 900 open cases with 48% in its backlog and the statement about a backlog of complaints being largely eliminated as complementary to each other? How do you reconcile those?

Mr. Alan Gilmore: I suspect, as the commission has indicated, they're using different definitions. You'd have to ask them specifically what definitions they're using when they do that.

Mr. Philip Mayfield: I'd like to ask you what definition you use for backlogs.

Mr. Alan Gilmore: We asked the commission what standard it was using to put a case in the backlog and they told us it was nine months. That is, if a case is still being investigated after nine months from the date of signing, then it would be considered in a backlog.

We knew when a date had been signed because we had their database, and we knew how long the case was still under investigation. So we simply took the whole database, and for this particular calculation subtracted the date we had when we took the database from the date of signing. If this amounted to more than nine months, it was in their backlog.

We then verified it. We'd say okay, if not nine months, what about using a year. As we used the year standard, we came out with the figures that more or less said that for 1997 the backlog is about the same, whether you use nine months or a year.

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So it's a relatively straightforward calculation: date of signing, and where it is in terms of the investigation process. If it's more than nine months, then it's in the backlog, using the definition the commission gave us.

Mr. Philip Mayfield: So what we're talking about really here are standards. I'll get to that a little bit later.

I'd like to come back to your comments, Madam Falardeau-Ramsay, about at least the commission's statements that the backlog has been largely eliminated. Is that a statement you still stand by?

Mr. John Hucker (Secretary General, Canadian Human Rights Commission): Mr. Chairman, perhaps I can elaborate a little on that.

If we look at the years 1991-96, there was a consistent reduction in the number of cases that were more than nine months old. The figure was going down steadily. I think the reference back to 1996 that the backlog was under control or was virtually eliminated was in that context.

What has happened since 1995-96 is that the commission has entered a particularly difficult period that arose from some structural changes that occurred in 1995-96. That was the time when the decision was taken that in order to respond to a series of cuts to our resources that had ensued from the government's program review exercise that was under way at that period, the only real option open to us to sustain and identify the cuts in question was to centralize the complaints investigation function in Ottawa.

Prior to 1995-96 we had investigators located across the country in six different regional offices. We thought we could save a considerable amount of money—in fact we did save in excess of $1 million—by concentrating our investigation resources in Ottawa. At that time, we invited experienced investigators in the regions to come to Ottawa. They were made job offers to come to Ottawa at that time.

Not one of these individuals decided, for whatever reason, to transfer to Ottawa in 1995-96. It was at that time that we were faced with a challenge to in effect reconstruct our investigative cadre. We had very few experienced investigators at that stage. Consequently, the time taken to deal with complaints began to go up. It had been diminishing until that point, but it started to go up, and the backlog started to climb. So as of today, the backlog is higher. The number of older cases as a percentage of the total number of cases is higher than it was in 1996.

Mr. Philip Mayfield: How old would some of the more mature cases be in this backlog?

Mr. John Hucker: Some of these cases could go back three or four years.

Mr. Philip Mayfield: That comes within the scope of what the Auditor General is saying.

Mr. John Hucker: Yes, but I think there was a difference in definition insofar as what the Auditor General was discussing in terms of the time that was needed to bring a case to a final decision. The way we have measured this in terms of our own standard is that we set a target of doing as many cases as we can through the investigation phase and for an initial presentation to the commission within a nine-month period. We have not uniformly met that standard, but it covers the phase only until the case is first presented to the commission for a decision.

Mr. Philip Mayfield: Mr. Chairman, just before I relinquish my time, I'd like to make a comment—this is not only with regard to these witnesses—that witnesses frequently come prepared to discuss their achievements, but we have so little of a discussion of the challenges you face that when we come to a situation like this it's very difficult for us as parliamentarians to put together the data that the Auditor General has with the legitimate problems that you have. So the last question I would like to ask is in future performance reports to Parliament will you please commit to discuss your challenges as well as your achievements in such a manner that we can understand the problems?

The Chairman: That's a simple question.

Mr. John Hucker: I think the answer probably is yes, we will do that.

The Chairman: Thank you.

[Translation]

Mr. Cardin, you have eight minutes for your intervention.

Mr. Serge Cardin (Sherbrooke, BQ): The Canadian Human Rights Commission has very specific objectives. In your opinion, Chief Commissioner, as part of these main objectives and priorities, how does the Commission take into account complainants and respondents?

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Ms. Michelle Falardeau-Ramsay: It is clear that our objectives correspond to the general thrust of the mandate we have been given; to examine and resolve complaints as quickly and as fairly as possible, and to ensure that the guarantees of natural justice prevail, for both the complainant and the respondent.

Another priority, which is also a statutory requirement, involves promoting human rights among the general public with a view to raising their awareness of this issue. Unfortunately, I must admit that that part of our mandate has suffered because of the budget cuts we have faced. We have, however, taken steps, in keeping with our means, to enhance this promotion and education component.

Those are our main priorities, to which can be added a third priority that is equally important, which is also conferred to us by the Act, and that is monitoring employment equity. As you know, since the Employment Equity Act was adopted in 1996, we have been under the obligation to ensure that federally regulated employers comply with the provisions of the Act. That is an aspect that we must reconcile with the two other aspects of our mandate.

Mr. Serge Cardin: You mentioned human rights, employment equity and other additional responsibilities. In your opinion, does the Canadian Human Rights Commission have the necessary resources to carry out the duties it has been entrusted with?

Ms. Michelle Falardeau-Ramsay: I will let our secretary general answer that question.

Mr. John Hucker: Will you allow me to answer in English?

[English]

We were given an additional level of resources by the government in 1996-97 in the amount of $800,000. This was to assist us in carrying out the new mandate of auditing the federal government and federally regulated private employers under employment equity. This $800,000 has enabled us to put together, with our existing resources, a branch consisting of 20 people, of whom 12 or 13 are auditors.

We have committed to a cycle of audits, which would see every federally regulated employer and the government departments audited over five years. We felt we had to try to get through the universe in a five-year period.

This is ambitious and it will be hard to do. Not everything is under our control, in the sense that when we arrive to do the audits we deal with employers who are in varying stages of readiness. Some have done their planning and it's relatively straightforward to talk to them to find out what is happening. But some employers have done virtually nothing to prepare for the requirements of the new law, and they ask our staff to explain what it is they are supposed to be doing.

There is always a tendency for staff to be asked to help and to act, in effect, in a kind of consulting role. They should not be doing this. They're auditors; they're not consultants. The department of human resources has a service of consultancy for employers.

All of which is to say that we are doing the best job we can. Could we do a better job with additional resources? Yes, undoubtedly we could. The program is not rich. We're administering, Mr. Chairman, two significant pieces of federal legislation for a total budget of around $15 million—

The Chairman: I would ask you to be brief in your responses in order to give them an opportunity to ask questions.

Mr. John Hucker: I shall do my best, sir.

The Chairman: Monsieur Cardin.

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[Translation]

Mr. Serge Cardin: What concrete results can we expect from the Commission, which has a budget of $14.8 million? I would like you to answer the question taking into account the Auditor General's recommendations and findings on your objectives.

Ms. Michelle Falardeau-Ramsay: We are in the process of setting up a working group and establishing an action plan that we will send to the members of the committee and to the Auditor General. If the number of complaints does not increase and Treasury Board grants us the resources that we have requested, we feel that within a year, the steps that we will have taken will enable us to reduce the backlog of cases we are currently facing by 25%.

You must however understand that there will always be a backlog because it is not possible for the commission to always receive easy cases. There will always be complex cases that will be presented to the Commission.

[English]

The Chairman: Next question.

[Translation]

Mr. Serge Cardin: That's okay.

[English]

The Chairman: I just don't want the witnesses to continue on with a long, repeating answer. Time is short, and members of Parliament do not have a great deal of time to ask their questions. I think this extraneous verbiage is somewhat irrelevant.

Mr. Cardin, do you have any more questions?

[Translation]

Mr. Serge Cardin: I imagine that we will have time for another round?

[English]

The Chairman: You still have a minute left, Mr. Cardin. Did you have anything else?

[Translation]

Mr. Serge Cardin: We have heard that in 1996, the tribunal started acting as a mediator even no it did not have the statutory authority to do so. Does the tribunal plan to undertake the necessary procedures to obtain this authority?

[English]

The Chairman: A brief answer.

Ms. Anne MacTavish: There may be a dispute between us and the Auditor General on whether or not any such power or specific statutory authority is required. It's a voluntary process. We only mediate cases if all of the parties agree. It's therefore done on consent. In our view, then, no statutory authority is required.

The Chairman: Thank you.

Mr. Harb, eight minutes. Did you want to give them to Mr. Mahoney? Yes?

Mr. Mahoney, we'll go to you.

Mr. Steve Mahoney (Mississauga West, Lib.): Mr. Harb agreed to let me go, since I have to go to the House shortly. I just have a few questions, so I may not need the entire eight minutes.

All the groups that have come before this committee in the past year have appeared to react positively to the criticism of the Auditor General. Your group seems to be saying the same thing, yet I would see a number of areas where that's not the case. On page 4 of his notes, in paragraph 16, the Auditor General says the problems cannot be simply solved by providing more resources. On page 2 of your report, however, the chief commissioner says “Our plans are now well under way, and we will be requesting additional funds to supplement the action”. So the Auditor General seems to be telling us that the solution to his criticism of the commission is not HR, more money, but you're saying it is. It seems to me you are directly at odds with this report, so I wonder if you could respond to that.

Ms. Michelle Falardeau-Ramsay: We're not saying it needs more money. I think we're saying a one-shot deal of money would be necessary. I think we agree completely with the Auditor General when he says that, for example, the law should be completely revised. We think there are lots of procedures that could be straightened up, and perhaps there should also be a complete review of the act.

The Chairman: Did you want a response from the Auditor General as well, Mr. Mahoney?

Mr. Steve Mahoney: Sure.

The Chairman: Mr. Rattray.

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Mr. David Rattray: Mr. Chairman, I think our case can probably best be summarized in the recommendation we made in paragraph 10.123. There, we take a much broader look at the issues the commission is facing rather than simply the resource backlog issue. It deals with the various roles of the commission, the broadening of the base on which human rights cases are brought forward, separation of the various functions of the tribunal and the commission, and the various roles within the commission. I would therefore say that ours is much broader than simply the one-shot funding deal with the backlog.

Mr. Steve Mahoney: Perhaps to follow up on that, one of your solutions is periodic reviews by Parliament on the impact and relevance of discrimination.

We seem to be a long way down the road of dealing with human rights commissions provincially and federally, along with ombudsmen's offices, attempting to resolve discrimination. Is there not the potential for a lot of navel-gazing if we go back, review, and all of a sudden try to define your statement as well, that being that it's necessary to have clarification of the roles? I would have thought that at this point in our history we were pretty clear on what those roles are.

I just see a potential for more delay, for more red tape, for more political debate, none of which would necessarily be helpful in terms of resolving complaints in a timely fashion. If we are to adopt this kind of an approach, it makes me somewhat nervous to pull up the roots of the tree once again just to examine them. Do we not know in Canada what discrimination is, and what the job of the commission and the tribunal should be?

The Chairman: Are you addressing that question to the Auditor General?

Mr. Steve Mahoney: It probably does go to the Auditor General, and perhaps to the Department of Justice.

The Chairman: Do you want the representative from the Department of Justice to respond?

Mr. Steve Mahoney: Maybe the Auditor General's office can answer first, because I was kind of barking at them.

Mr. David Rattray: We'd be happy to respond to that, Mr. Chairman, and I'd ask Mr. Gilmore to answer.

Mr. Alan Gilmore: When we look at the evolution of the Human Rights Act and what the commission is doing, it is refining its interpretation of the act by going to court. It is dealing with new cases that it has to establish precedents on, and it does this by using the cases that come before it.

The question that we're bringing to the attention of Parliament is whether this is the best way to deal with the evolution of human rights in Canada. Or is it better that Parliament would examine, on some periodic basis, the evolution of human rights in Canada in order to see what modifications could or should be made to the Human Rights Act rather than having the cases fought out in front of the courts, only to result later on in amendments to the Human Rights Act?

I'll just pass to the second part of your question, which is the roles of the commission. The first part of the Human Rights Act says the commission deals with information programs—on the surface, those would apparently be education programs and the like—advocating to Canadians that they should be tolerant, respective of diversity, respective of people's rights. But another section at the very end is where some of the difficulty is occurring. It says the commission “shall, as far as is practical and consistent with the application of Part III”—which is its investigation mandate—“endeavour by persuasion, publicity or any other means that it considers appropriate to discourage and reduce discriminatory practices...”. That's a very wide-open mandate.

When we dealt with the audit and looked at some of the cases going in front of the Federal Court and in front of the tribunal, there seemed to be a bit of a mix-up at times in terms of the role of the commission. It helps complainants draft complaints, it then investigates the complaints, and it decides which complaints are going to the tribunal. In front of the tribunal, it defends the public interest. In front of the Federal Court, it advocates for expansion of the Human Rights Act. This is a multi-role agency, and you have to decide whether or not that's appropriate.

The Chairman: Thank you.

We'll now ask Patricia Lindsey, counsel for the public law policy section of the Department of Justice, to make a quick response to Mr. Mahoney's questions.

Ms. Patricia Lindsey (Counsel, Public Law Policy Section, Department of Justice): Thank you, Mr. Chair.

The department will soon be forwarding to the minister recommendations on the best process for reviewing the Canadian Human Rights Act. The scope of the Auditor General's recommendations are quite broad, and they go to the heart of the principles underlying the Canadian Human Rights Act. It would therefore be premature to comment on any of the specific recommendations prior to the conclusion of that review.

• 1630

The Chairman: You may ask a small question, Mr. Mahoney.

Mr. Steve Mahoney: It appears it was anticipated, because the response was well prepared.

One of the concerns I have is that I've heard the comment—I'm sorry, I've got to get all my names right—from the chair of the tribunal that many of the issues are litigious in nature and therefore would cause some concern around whether they would wind up being appealed to the court and slowing down the decision-making process because of the difficulties there.

Then I see this example of a complicated question—maybe I'm simplistic in this—as to whether all bank machines should be accessible to people with disabilities. Yes. Why is that such a complicated question? Why would we not simply put that out to the forces of the market, so if one of the banks decided they wanted to take that step, then obviously they would attract those customers? That seems to make some sense. I just wonder if we're all being totally honest, both in our criticism and our response to that criticism.

It seems to me the commission is short of resources. Yet the Auditor General says that won't fix the problem. It seems to me the commission is saying we need more resources, but we all know how difficult that is in today's climate. It also seems to me the criticism of the auditor of the recommended solutions is one of more study and review, which I think just leads to bogging this whole system down.

I wonder, whoever wants to respond to this, if we're being honest here. It strikes me that the commission needs some more money to have more people to hear these complaints to speed up the process. And that does not agree with the Auditor General.

The Chairman: We're going to get a quick response from the Auditor General and then we're going to Mr. Hucker.

Mr. Rattray.

Mr. David Rattray: I think if you look at the recommendations we've made you'll see we've tried to clearly deal with them in a comprehensive manner and move toward the justice review, saying this is an opportunity not to be missed to deal with some very fundamental issues and principles. We've tried to lay out what we thought could be included in that review that would be useful in terms of making it a more efficient and effective process, and therefore deal with the money issue as well as the broad principles in roles and responsibilities.

The Chairman: Thank you.

Mr. Hucker

Mr. John Hucker: Thank you, Mr. Chairman. I'd like to make two quick points, if I may.

One reason there is I think not a particular adversarial relationship between the commission and the Auditor General is that although the Auditor General is in some ways critical of what we're doing, it's the first opportunity we have had in a long, long time to see an outside party come in and examine our procedures. We do not have a budget—we've asked for money to do internal audits—and we do not have the capacity to do it on a sustained basis. So it's been helpful in that respect.

The second point I would make with regard to the reviews of laws is that some laws do have a sunset clause. I think the Employment Equity Act is going to be reviewed in five years. The previous one was reviewed each five years. The Canadian Human Rights Act has been around for 20 years now, and that's a long time, given the social change that has occurred. Understanding of what is discrimination is very different now from it was. The example of the bank machine didn't exist 20 years ago. So I think it is timely.

The Chairman: Thank you.

We're now on to the second round, so it will be four minutes for Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Okay. I was just wondering... You're kind of dancing around the issue. I wonder if the big case of pay equity really gummed up the works for you folks and took a disproportionate amount of resources, and if that one case might have hurt you as far as timelines are concerned. Do you have any comment about that, first of all?

Ms. Michelle Falardeau-Ramsay: Well, it's obvious the pay equity case has taken a lot of resources from the commission. But I have to say that every time we went back to Treasury Board to ask for more resources in the pay equity area, dealing with that particular case, we got the money we asked for. But it took a toll on some of our people, who were frozen there for six years.

Mr. Paul Forseth: I see in the Auditor General's report, page 1023, under paragraph 10.122 it says:

The Minister of Justice has stated that a broad review of the Canadian Human Rights Act will be undertaken.

We just had a statement from the Department of Justice that they're about ready to give some plans or whatever, but obviously this report was anticipating problems that I'm sure you had long identified. It's to get at the systemic underlying philosophical problems about the basic mandate of what you're doing. It's not just more people or a little bit more money for more investigators or trying to do systems designs. It's getting at those deeper underlying philosophical issues to say are you really doing what you should be doing. You're asking those philosophical questions.

• 1635

Could you mention to us perhaps a couple of points you would be bringing to the Department of Justice, pointing out where this basic philosophical review needs to be done, to examine not necessarily the how, but the what? That's what I want to hear.

Ms. Michelle Falardeau-Ramsay: Yes, for sure. For example, it would be very, very useful for us to have the authority to establish delays for the parties to respond, because the way we are set up at the moment, nothing allows us to say to the respondent or the complainant that they have to send us back their answer within 30 days. So that would be something that would be a big improvement in the act.

Also, it would be very important to give us the ability to quickly screen out the cases that we consider as illegitimate, because right now in the act we have an obligation to take any case that comes in front of us. So I think this would also be important.

I think it would also be important to allow some cases to be deferred directly to the courts, because in some instances those cases are dealing mostly with the charter.

I think it would also be good if we would be able to require the production of documents without having the need to go for a warrant in front of the Federal Court.

Those are some of the very practical tools that would help us quite a lot to increase our efficiency in a revised act.

Mr. Paul Forseth: Do you have any thought about the funnel at the front end—perhaps narrowing the funnel to be able to concentrate much more closely on what the needs of Canadian society really are, as to whether you deal with the worst or the most significant?

Ms. Michelle Falardeau-Ramsay: I think this is a question that would be very important to ensure that we could find a way to be able to establish some priorities. We cannot at the moment establish any priorities in the cases we are dealing with because we have, as I said, to deal with all the cases.

The Chairman: Mr. Harb, four minutes please.

Mr. Mac Harb (Ottawa Centre, Lib.): Thank you very much.

I quite enjoyed the presentation of the Auditor General and the response from the Human Rights Commission, in the sense that both clearly indicate that they want to see a review of the act. I think it's high time to have this review, for a lot of reasons.

As a member of Parliament who represents an urban constituency, I have a lot of constituents who come to me in desperation. First, they can't afford to go through the court system; it's extremely expensive. Second, they cannot go to the Human Rights Commission because sometimes it takes forever for a case to be heard. Not only that, but once the Human Rights Commission reaches a decision, the employer or the institution is not obliged to obey the decision of the Human Rights Commission. There's no teeth to the commission when it comes to its decision. They can tell you you have to do that, but really, by law, they can't force you to do it. I think this is one major problem that needs to be addressed.

I'd like to hear a comment from the Human Rights Commission. Is that the case, or am I out to lunch?

Ms. Michelle Falardeau-Ramsay: Well, I might have a slight disagreement with you, Mr. Harb. If there is a settlement that has been agreed to, then in my experience at the commission as the deputy chief commissioner and as chief commissioner, there have been only two cases where it happened. Usually settlements are abided by.

The Chairman: If I may interrupt, I think the question was do you or do you not have the legal authority to impose your will?

• 1640

Ms. Michelle Falardeau-Ramsay: That's what I'm answering, Mr. Chairman.

I'm saying also that in those cases—

Mr. Mac Harb: Yes or no.

Ms. Michelle Falardeau-Ramsay: In those cases, yes.

Mr. Mac Harb: But as a general rule, if you tell an employer that this is a decision of the Human Rights Commission, does the employer have to obey your decision? Do you have the legal authority to force that employer to obey that decision? Yes or no?

Ms. Michelle Falardeau-Ramsay: Well, that's—

Mr. Mac Harb: It's quite simple.

Ms. Michelle Falardeau-Ramsay: It can't be answered by yes or no, but let's say yes.

The Chairman: I understand Ms. MacTavish would like to add something.

Ms. Anne MacTavish: May I clarify that?

I'm not entirely clear, Mr. Harb, if what your constituents are referring to are decisions of the Canadian Human Rights Commission or decisions of the Canadian Human Rights Tribunal, because there is an ongoing confusion.

Decisions of the Canadian Human Rights Tribunal are enforceable. They can be registered as orders. Tribunals are enforceable Federal Court orders.

Mr. Mac Harb: My question is on the Human Rights Commission.

Ms. Michelle Falardeau-Ramsay: I think there is a misunderstanding of some kind. The commission can dismiss cases, can send cases to conciliation, and can send cases to the Human Rights Commission—

The Chairman: Tribunal.

Ms. Michelle Falardeau-Ramsay: The tribunal.

Mr. Mac Harb: I think if you were to view the blues, I did not mention “tribunal”. I'm talking about the Human Rights Commission, and my question still stands: Does the Human Rights Commission have the legal authority to force an employer to obey its ruling? Yes or no?

The Chairman: I'm surprised that the chair can't give us a clear definition from that simple question: Does the commission have the authority to impose its decisions upon the parties, or does it have to refer to the tribunal and have them make a decision that is imposed?

Ms. Michelle Falardeau-Ramsay: In principle, we have the authority, but we make no rulings that oblige an employer to do something; it's the tribunal that does that.

The Chairman: That may be as close to an answer as we're going to get. It seems they do not have the authority, Mr. Harb.

Do you want to add anything to that, Ms. MacTavish?

Ms. Anne MacTavish: I think that's the mandate of the tribunal, to make enforceable orders. That's what we're there for.

Mr. Mac Harb: So it's not within the mandate of the commission to enforce a decision that it reached.

The Chairman: Okay, now that we have hopefully resolved that issue, Mr. Harb, I'm sorry, but you're kind of out of time.

Mr. Mac Harb: Exactly.

My conclusion, Mr. Chairman, is I think that's where the problem is. In fact you have to clearly distinguish and define the role of the commission to ensure that it has teeth, for as long as there are no teeth to it, you're going to have the same problem.

The Chairman: Mr. Myers, you have four minutes.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chairman.

I listened with great interest to the testimony provided, and I want to say at the outset that I think the Human Rights Commission and the tribunal have performed very effective and good tasks for all Canadians.

In terms of the high turnover of investigators, why is that the case? I think I heard the chief commissioner say that they were instituting a plan to correct that. I wonder if you could comment on that issue.

Ms. Michelle Falardeau-Ramsay: I'll leave the secretary general to answer this question.

Mr. John Hucker: Thank you, Mr. Chairman and madame la présidente.

In the past, the pattern of investigators and their stay at the commission has been that they usually stayed for a long period of time. That changed with the restructuring we did in 1996-97, when there was a shift to Ottawa. We hired a number of new investigators to replace those who would not make the shift from their hometown to Ottawa, and a good number of those new investigators, for whatever reason, decided not to stay.

That was during a time when the government was going through a lot of restructuring, and we were required to take priority candidates, not necessarily the candidates we would have chosen. Not all those candidates were well suited to become investigators, and some of them realized that and moved on. Also, some of the better ones have moved on because the skills you acquire as an investigator, analytical and writing skills, are useful skills and there is a strong demand for those skills. So we did lose a lot of people during that period of time, during those two years after 1996.

The program now is to try to first of all reduce the pressures on investigators. It's a tough job. There's a heavy workload. I think we need to provide some career progression for investigators, and with that end in mind, we have put in a program of training and development within the commission for investigators. I won't take longer to explain it, but I think those three elements should address it, if we address the workload and the training and development, particularly.

Mr. Lynn Myers: Thank you very much. That's very useful.

• 1645

I'm very interested too in the whole review process of the Canadian Human Rights Act. I thought Mr. Rattray made a very interesting point when he talked about the complexity of this and the legislative and administrative measures needed to make this happen in a way that's meaningful and underscores our commitment to human rights and such. One of the points he made—and I wonder if the chief commissioner could respond—was the importance of the promotion of human rights. I wonder how that fits into your mandate as you see it, and more to the point, how it will be addressed in this review.

Ms. Michelle Falardeau-Ramsay: I cannot tell you how it will be addressed in this review because I suppose there will be lots of consultation with the stakeholders, and the review will be the result of those discussions.

But what I can tell you is I think it is probably one of the most important roles of the commission. First, it allows the people to get to know what the laws are and how they can be protected. Second, we hope it will be a way to prevent complaints, because we will speak, for example, with employers. We will give sexual harassment seminars to employers like the armed forces and that type of thing. So it's a prevention as well as an information tool.

Mr. Lynn Myers: Thank you. I'd like to explore that further, but I'm out of time.

I have a quick question. You said something, Madam Chief Commissioner, that raised my head a little bit. In response to a previous question you said you hoped, in terms of the production of documents, you would not have to go to the Federal Court. I wonder if you could explain further what you meant by that.

Ms. Michelle Falardeau-Ramsay: The way the law is presently set up, we cannot oblige any parties or any witnesses to present any document to the commission. We have to make a motion to the Federal Court and then apply to get a warrant. If we get that warrant, then we can get those documents.

The Chairman: Thank you, Mr. Myers.

Mr. Finlay, do you have a question?

Mr. John Finlay (Oxford, Lib.): I have a question. I have an observation that follows directly from what Madam Chair has just said.

The chairperson of the Human Rights Tribunal, Ms. MacTavish, said working on rules of procedure and speeding things up could help, as well as assigning dates early. In my limited experience with courts, lawyers and judges, assigning things early would be wonderful if you could do it without having the lawyer tell you he needed three more weeks or his client was going to Peru or something. The inordinate delays in the criminal justice system on that kind of basis—and I've seen it in city court, provincial court and so on—are just horrendous. It makes one wince.

Now we're told the commission has to go to a court to get an order to have someone defend themselves or make a case with the document. I don't want to upset the whole judicial system, but that's where the problem is.

The Auditor General says it may take several more years if they are forwarded to the tribunal for adjudication—the decisions of the commission of internal appeal for judicial review. Of course it will; it will take years and years.

We certainly need something if we're going to get action on this sort of thing. It seems to me every time you run up against the judicial system it will cost you about three months or half a year.

Thank you, Mr. Chair.

The Chairman: Thank you, Mr. Finlay. Take a look at paragraph 10.19 of the Auditor General's report. It says:

The Commission tries to expand the interpretation of the Act through court cases, sometimes in collaboration with complainants' counsel.

Later on, they talk about the independence. We've had the Bell Canada decision that talks about the impartiality of the commission and the tribunal.

Mr. Rattray, can you explain what you mean by the commission trying to expand its interpretation of the act? What kind of evidence do you have to support that statement? Mr. Gilmore?

• 1650

Mr. Alan Gilmore: The commission will collaborate with the complainant's counsel to seek an expanded definition of the interpretation.

The Chairman: Is it a definition of the complaint or the interpretation?

Mr. Alan Gilmore: You do it at the same time, so you are in effect using the complaint to expand the definition of the Human Rights Act as a grounds of discrimination.

The Chairman: Do you have any evidence to substantiate that, or are you just making that statement?

Mr. Alan Gilmore: No, we discussed that with the commission's counsel.

The Chairman: Did they agree with you?

Mr. Alan Gilmore: Those are almost his words.

The Chairman: Okay.

When I also take a look at 10.21, it says the commission advocates changes to the act. It goes on to say the commission has decided to address larger social issues, such as poverty, that may go beyond its immediate jurisdiction. The commission told us this is consistent with the overall purpose of the act.

I take a look at these statements, Ms. Falardeau-Ramsay, and it seems to me you are trying to expand the envelope. Why are you trying to expand the envelope and not just apply the act, which is your responsibility?

Ms. Michelle Falardeau-Ramsay: We are trying to give to all Canadians the same types of remedies they have in the provinces.

The Chairman: But isn't it your responsibility to apply the act, and not take it upon yourself to determine what you think is discrimination in areas you personally would want discrimination to apply—or do you have to apply the act? Is your responsibility to apply the act, or apply discrimination as you define it?

Ms. Michelle Falardeau-Ramsay: I think it's part of both. It's to apply the act, and part of the act is the promotion of human rights.

As we all know, society changes. This is what happens. For example, some years ago sexual orientation was not considered a source of discrimination. Then it was established by the court. The commission had been advocating that for 15 years.

The Chairman: When I take a look at 10.61, the commission rarely uses authority to initiate complaints because it has been challenged in the courts and lengthy litigation has ensued. Then it goes on to say you try to find third parties who are willing to file complaints.

I'm trying to find out if your job is to adjudicate problems that are laid before you or if you feel you have a mission to go out there and change society according to the way you want it to be changed.

Ms. Michelle Falardeau-Ramsay: I don't think at all it is up to the commission to change society in any way, shape, or form.

The Chairman: So why are you going out and seeking third parties to lay complaints—because you feel the commission may be accused of bias, because if you lay the complaint yourself and then adjudicate it, you will have a bias? Now you go out, find third parties, ask them to lay complaints, and say you will adjudicate. Why are you doing that?

Ms. Michelle Falardeau-Ramsay: We do not go around trying to get third parties to lay complaints. Usually parties come and lay complaints on subjects that are of concern to the commission. But we don't go around trying to find people to lay complaints.

The Chairman: Mr. Gilmore, the report says:

As a result, the Commission told us that “in situations where the Commission is interested in pursuing an issue, it has found that there are usually third parties who are willing to file a complaint.”

That suggests to me they are going out and getting these complaints laid. Am I correct in saying that?

Mr. Alan Gilmore: We put that in quotes. That's what the commission told us.

Ms. Michelle Falardeau-Ramsay: If people come to us to present complaints, we will take those complaints. When we say they are willing to present complaints, we don't mean we are going around trying to find people and saying “Hey, come and please file a complaint”.

The Chairman: I'm afraid that is how I read it, Madame. When I take a look at the section under 10.101 and the subsequent one in 10.104, we find that even though you don't have the authority, you're now contracting your services out to CIDA and other organizations. You do not have a mandate, according to the Auditor General, to go out and sell your services on a fee basis to other organizations.

• 1655

Ms. Michelle Falardeau-Ramsay: We're not selling our services for a fee basis, but we respond to requests that are made by Foreign Affairs and by CIDA, because we're the only organization nationally that has a certain type of expertise, and I think we have a duty when we're asked by those people to go and help. And we are in accordance and we are very happy that the Auditor General came to the conclusion that this part of our mandate should be clarified. We welcome the clarification.

The Chairman: If I may say so, when I look at these issues I think you're into empire building. And when you're getting $2.6 million from CIDA, as far as I'm concerned you're selling your services. Am I correct, Mr. Gilmore?

Mr. Lynn Myers: It's called cost recovery.

The Chairman: I have no problem with cost recovery. The commission, according to the Auditor General, does not have the mandate to go and sell its services to other organizations. Am I right, Mr. Gilmore?

Mr. Alan Gilmore: It doesn't have the authority to do what it's being asked to do at the moment by CIDA and the government.

The Chairman: Therefore, it should refuse.

Mr. Alan Gilmore: It should get the authority, which is what we're suggesting.

The Chairman: So it acted beyond its authority, because they felt they had an issue that was worth pursuing from their perspective. So without the authority they went ahead and did it.

Mr. Alan Gilmore: I think you have to have balance on this. CIDA had requested the commission to do it. I think the commission agreed in good faith to do it. When we looked at it and we looked at the legislative authority for doing it, we concluded that it wasn't clear, and that if you're going to do it you need the clear authority to do it.

Ms. Michelle Falardeau-Ramsay: Can I just add that we're exactly the same as Elections Canada, Agriculture and Agri-Food Canada, the RCMP, all those organizations, and the Auditor General.

The Chairman: Mr. Mayfield, four minutes.

Mr. Philip Mayfield: I want to come back to the performance report in which you provide information to Parliament. The Auditor General in his verbal statement today makes a number of points with regard to the amount of time it takes for certain things to be accomplished. One of the things that grabs my attention is it takes about 25 months to decide to dismiss cases due to lack of evidence, and about 34% of these cases are dismissed.

Now it seems to me that somehow or other there's a great inability within your organization simply to say there's nothing we can do for you. Not only is there time spent, but also resources of people and money. And I see that the Auditor General offers some remedies, which seem to me to check the tools in your bag for getting the job done—for example, in 10.94 and 10.95. At 10.94 he says:

It could improve its performance reporting by providing information on the delivery of services against defined standards.

And then in 10.95 he says:

It could set goals for the number of of new complaints that should be resolved in a fiscal year, establish deadlines for eliminating its backlog, and set targets for the number of complaints that could be settled by early resolution within a specific period of time.

These seem like basic management techniques, which could profit you a good deal. I want to know how you respond to these suggestions. Will you agree to include them in your next performance report?

Ms. Michelle Falardeau-Ramsay: Yes, definitely so, but I will let Mr. Hucker answer these questions.

Mr. John Hucker: Thank you.

Yes, these are reasonable approaches to management. Many of these activities we do undertake now. We do have goals for the complaints that are dealt with by investigators. There is a formula that says how many complaints of a certain complexity individual investigators can be expected to carry at any one time. We do have deadlines for eliminating the backlog.

We did in fact come very close to eliminating the vast majority of older cases in 1995-96. We have tried to do the same again. I think we can do it. As the chief commissioner says, we will never get rid of all cases older than nine months, because some of those are quite complex. One of the earlier points in your question was that 34% of these cases result in dismissal or no further proceedings, and it takes a long time to come to a decision of that nature.

• 1700

Mr. Philip Mayfield: Thank you.

I have a couple of other questions. According to the report, you're not consistently adhering to some of your key investigation standards. I'd like to know why that is the case. In paragraph 10.76 the Auditor General reports that the commission has not implemented its 1995-96 plans to conduct periodic audits of its investigations. I'd like to know why that is the case in that instance also.

Mr. John Hucker: Mr. Chairman, on the audits of investigations, I'm not sure what precisely the Auditor General had in mind there, but I think elsewhere in the report the Auditor General talks about the need to monitor the way investigations are done. We already do it, but I think we can do it more efficiently than we've done it thus far.

We are looking today at our standards. The word “standards” is a loaded term. It can include time standards—in other words, certain activities should be done in a certain number of weeks or months—and those are easy to understand. Other standards involve internal approaches to getting the work done. For example, should an investigation plan be completed by the investigator in every case? The Auditor General has concluded correctly that an investigation plan is not completed in every case, and therefore we have not met our standards in that regard. His findings are correct.

In terms of the quality of the work that is produced, I don't think the findings are pertinent because what we have to do is produce reports that provide an adequate basis in terms of the facts that are found and the analysis that is completed in order for the commissioners to make an informed decision, and we are satisfied that is done.

Whether or not an investigation plan is prepared in every case is not the key issue, in our view. What is key is the quality of the work; that is, were the right witnesses interviewed, was the analysis sound, was it fair, and are all the relevant facts there. We think that is done.

The Chairman: Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

I don't know if you're going to find a question in here somewhere.

Having served for two years on the human rights committee when I first came here, I have the feeling today that somewhere I've heard this song before. We always have something that's going to be done in the future. We seem to have at one point a toothless tiger. Are we getting our money's worth feeding mush to this toothless tiger, or should we just kill him and get a new tiger?

But one thing fascinates me here. In paragraph 10.66 it says:

We requested that the Commission provide us with its most up-to-date compliance and training manuals and keep us informed of any changes to them. The Commission provided us with its 1994 Compliance Manual and 1995 Training Manual.

Good God, that was two or three years ago.

And then it says:

However, we could not conclude that numerous directives on investigation procedures issued since January 1994 had been integrated into the manuals, or codified in any way. The Commission also could not confirm that it had provided us with the total number of directives...

This commission doesn't seem to operate on any kind of a business basis.

The report goes on to say:

Subsequent to finalization of our audit report, the Commission informed us that it had almost completed revising its Compliance Manual. We plan to review...

It goes on and on and on.

I've been listening to this now for five years. When the hell are you people going to get your act in shape?

The Chairman: That's a fairly specific question.

Ms. Michelle Falardeau-Ramsay: Can I first say that I think at the moment we are by and large in pretty good shape. When I hear you talk about compliance manuals, I think that those are... Well, I will let Mr. Hucker give the answer on the compliance manual.

The Chairman: Make it a quick answer, Mr. Hucker.

Mr. John Hucker: With regard to the compliance manual and whether we should have incorporated all these directives before now, yes, we should have. I agree.

• 1705

On the larger question, which is the quality of work the commission does, perhaps we don't agree. If you read this report by the Auditor General, he makes the point that he has focused on the way the commission does its business according to its own standards. He has not assessed the quality of the work that is produced. He says it, and it's a fair comment. He sampled 50 files. I think the quality of the work is sustainable. The courts have said we are doing a professional job. Certainly we are putting our side of the argument forward to you. This is why we are here. But we're not blind to some of the points that are made in this report, nor do we suggest that we're perfect—far from it.

Mr. Ivan Grose: If you agree, why haven't you done it?

Mr. John Hucker: Why have we not updated the manuals? That's a good question.

Mr. Ivan Grose: Yes, it is a good question. Okay. We'll leave it at that. Thank you.

The Chairman: Mr. Harb.

Mr. Paul Forseth: The representatives from the Auditor General's office wanted to answer.

The Chairman: Sorry. Mr. Gilmore or Mr. Rattray, did you want to respond to that?

Mr. David Rattray: Mr. Chairman, I'd like to come back to an earlier point, if I could, which dealt with the process and the standards. There was a comment earlier that what we were looking at is simply the plans and compliance to the plans. When in fact we did go through some files, we found that some information we expected to be documented wasn't documented. I just want to correct that point.

The Chairman: Thank you very much, and my apologies for not recognizing you at the time.

Mr. Harb.

Mr. Mac Harb: Thank you, Mr. Chair.

I wanted to go on the record as saying that I applaud the fact that the Human Rights Commission is going for a fee-for-service system when they are asked by one of the other agencies, Canadian or otherwise, because I think what makes this country such a great country is to showcase our qualities as a nation to the rest of the world. It's my hope that, as the Auditor General has stated, they will get the clarification so that they can do those kinds of things. That probably would apply to every other agency that is providing those kinds of services abroad, and I know how valuable they are as a tool to promote trade and to promote people-to-people relations with other countries.

Mr. Chair, I have heard the word “review” almost from everyone who has spoken to us today, and I wanted to find out if the commission as well as the Auditor General would make a specific recommendation to be sent to the Minister of Justice. If that has not yet been done, when will it be done?

From time to time the Department of Justice requires people to go to mediation as part of the whole justice system process. I want to know if mediation will become mandatory before you would hear a case, that these two parties would have to go to mediation first before their case could be formally heard by the commission.

When you have a union suing a government or an organization suing another organization because of whatever allegation there might be, can't these organizations go through the justice system, and couldn't we just save the Human Rights Commission to focus on individual citizen cases, rather than on groups? When we talk about groups, there have to be some other forums, unless the groups do not have the means to support themselves. But one would presume a major union or a major organization of some sort with a large membership and fees and so on can in fact go through the justice system rather than taking up your time. I wanted to hear your comment on that.

Ms. Michelle Falardeau-Ramsay: I would say that 99% of our cases are from individuals. I've had some big cases that involved unions, such as pay equity, and in those cases we have exclusive jurisdiction to deal with those complaints and to send, as the case may be, those complaints to the tribunal.

Mr. Mac Harb: On the mediation end, would you make it mandatory?

Ms. Michelle Falardeau-Ramsay: We have at the moment a pilot project dealing with mediation. We have already trained mediators, and they're going to mediate the cases that have certain parameters, and we're going to do that.

Mr. Mac Harb: On the final part of the question about a set of recommendations you'd be making to the minister, have you done that, and if not, when will you be doing it?

Ms. Michelle Falardeau-Ramsay: We have done that many times in the past, and we're going to do it another time. We are in constant contact with the Department of Justice, and you can be sure that we are going to provide them with our recommendations.

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The Chairman: Thank you, Mr. Harb.

I'm looking at 10.70. Getting back to my point earlier about empire building and expanding the interpretation of the law and the act, there are basically four forms or reports that you fill out. One is the complaint analysis and assignment form, followed by an investigation plan, followed by the complaint analysis report and the investigation report.

The Auditor General reports that the last two forms are filled out, but the first two, which would seem to be the framework of the case you're going to be investigating, the complaint analysis and assignment form and the investigation plan of how you intend to proceed with the complaint, are not filled out. You do your work and you complete the final reports, which are the analysis report and investigation report, but why is the initial documentation left out?

Ms. Michelle Falardeau-Ramsay: Do you want to answer that?

Mr. John Hucker: I think there are various reasons for this. One reason, of course, is the time factor. There's constant pressure on investigators to get the job done as quickly as possible.

The Chairman: But wouldn't you say that if the complaint is assigned to an investigator, the first thing he's going to do is kind of draw a circle around his problem to say that this is his analysis of the complaint and here is his investigation plan? If he gets that done, he's going to be able to work expeditiously and efficiently, and move forward according to what he intends to do. If that's approved by a supervisor, he can get the job done, but if he's just floating off wherever he wants to go and wherever the trail leads him, we end up with the problem we have.

Mr. John Hucker: I think there certainly has to be a pulling together of the framework for the inquiry, absolutely. Whether that takes the form of a formal plan or not I think will depend on the circumstances. It will often be done less formally, through a discussion between the investigator and his or her supervisor.

The Chairman: Mr. Gilmore.

Mr. Alan Gilmore: We were interested in making sure the commission had the information it said it should have. These are the commission's standards of what information should be there. We didn't decide on that information, the commission decided it. So we looked at whether the information was there, but we couldn't find it in many cases. Then the commission told us it was in other places and that we couldn't conclude it was there. So we believe a commission that's investigating human rights needs to have the information it says it needs to have, otherwise, it's going to run into difficulty. That was the point we were making.

The Chairman: So the concept is that when the complaints are received, they analyse it and put in their own language. They say this is the scope of their investigation and this is the way they want to proceed. That would seem to be a good business practice, but that's not being done.

Mr. Alan Gilmore: The commission's procedures and policies require exactly what you said.

The Chairman: But it's not being done.

Mr. Alan Gilmore: It's not being done in all cases.

The Chairman: How many cases would that be? Would it be for most, some, or none of them?

Mr. Alan Gilmore: Well, I guess we concluded it was about half or so, maybe a bit more.

The Chairman: I want to take a look at the table called exhibit 10.2, which is the standard and average actual time to complete an investigation. I find it seems to be the commission that always goes significantly over its time budget. For example, assigning an investigator and screening the complaint takes seven standard days, but 34 days of actual time on average. Then if I move down to the time taken to receive a respondent reply, it goes from 40 days to 60 days, and so on. But the big ones are when the commission itself is delaying the process. When outside parties are being asked to respond, they seem to do it with greater efficiency and with less time delay than the commission.

Why does it always seem to be the commission that's slow, or slower than the others? Is there any particular reason, or is it strictly a lack of money, time, or planning? What would you suggest?

Mr. Alan Gilmore: I think it's in part a workload issue. I think it's in part a question of apportioning one's time as effectively as one can.

That's not an acceptable standard for us. We intend to see that it's changed. That's too great a divergence from the standards.

The Chairman: Mr. Mayfield.

Mr. Philip Mayfield: I want to touch on the aspect of personnel within the organization doing the job. As I read the report, if my memory serves me correctly, they received something like six or seven days of training over quite an extended period of time. I believe in your comments here today you had mentioned that you were increasing that training.

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I also had the impression—and I want to just check with you and see if I'm correct—that there is a bit of a personnel problem, in that some of your folks are leaving; you have trouble hanging onto valuable personnel. In my mind, that often speaks of perhaps a lack of help within an organization, where people may not know what they're doing; they may not have the resources to do it; they may not have the time; they're confronted with continual frustration of not knowing clearly what their job is.

On what basis is the training given, and how well trained does a person have to be to begin investigating? How clearly do your personnel understand the procedures from beginning to end and how important those procedures are if they're going to do an adequate job of investigating and reporting the complaints that are brought to them? I'm concerned about hearing that people are not enjoying their work there.

Mr. John Hucker: That's a complicated question, a very good question.

On the matter of training, we think the tools are there. We do a mix of self-training through a self-learning manual, which I think is quite a sophisticated tool, but we supplement that with in-person, face-to-face training on the basic elements of the work that needs to be done, such as witness evidence, rules, how to deal with clients, how to deal with a difficult client, analysis requirements, and the basic concepts of discrimination, direct and indirect discrimination, and reasonable accommodation, which is an element of it. So I think we've covered the basic program areas.

Mr. Philip Mayfield: Then why are people frustrated and leaving?

Mr. John Hucker: I think people are frustrated for a number of reasons. The two primary ones are workload. The workload that has been imposed on investigators in recent years is very heavy. Many of these investigators are quite new, and quite frankly, I think our selection process was less than perfect. We probably hired some people we should not have hired.

The other thing is, it's a tough job being an investigator, at the best of times. You're in a very hostile environment. Nobody wants you to come knocking on their door, be you a complainant or a respondent. A complainant is, by definition, unhappy, or he wouldn't have complained; and the respondent company is usually ticked off that somebody has accused them of discrimination. The investigator is caught somewhere in the middle, trying to satisfy two sides who are essentially in incompatible positions and trying to produce under tight timeframes a report that is satisfactory in terms of quality. It's not a fun job.

The Chairman: Is that okay?

Mr. Philip Mayfield: May I ask one brief question?

The Chairman: We have a 15-minute bell.

Before we wrap up, we really haven't talked to Ms. MacTavish very much regarding the tribunal; we have focused more on the commission. We know, as she mentioned, the tribunal has operated in a fair amount of obscurity until recently, and they brought down a major decision.

Could you quickly explain to me—without taking a great deal of time, because we have to be in the House shortly—how the tribunal saw its mandate of adjudicating an issue of thousands of people who no longer work for an employer, when the act gives you authority on specific complaints that you receive, and how you are able to roll these all into one major complaint and deal with it on that basis?

Ms. Anne MacTavish: I'm somewhat uncomfortable commenting about a specific case, particularly one that is currently is before the courts. Our mandate is to deal with the complaints referred to us by the Canadian Human Rights Commission, which is what we've done in that case. The decision was rendered, and it will remain to be seen, once it has wended its way through the courts, whether it was done appropriately or not.

The Chairman: Okay, thank you very much.

Ladies and gentlemen, I would like to thank our witnesses.

Mr. Rattray.

Mr. David Rattray: Mr. Chairman, if I could correct one item very quickly, earlier in the testimony it was suggested that perhaps the Auditor General was acting outside of his authority. I'd like to say that section 11 of the Auditor General Act is the appropriate authority we use whenever we engage in work that's not the core part of the business.

The Chairman: Okay. Thank you very much, Mr. Rattray.

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I would like to thank the witnesses for coming this afternoon.

The meeting is adjourned to the call of the chair.