PACC Committee Report

HOUSE OF COMMONS
CANADA

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Introduction
Observations and Recommendations
Conclusion

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Pursuant to Standing Order 108(3)(e), the Standing Committee on Public Accounts has the honour to present its

TWENTY-FIRST REPORT

The Standing Committee on Public Accounts has considered Chapter 10 of the September 1998 Report of the Auditor General of Canada (Canadian Human Rights Commission, Canadian Human Rights Tribunal Panel) and the Committee has agreed to report the following:

INTRODUCTION

Canadians pride themselves on having built a society that strives toward tolerance, and respect for the individual human rights of all citizens. To promote and protect these rights, Parliament adopted the Canadian Human Rights Act (the Act) in 1977. The Act applies to federal government departments and agencies, Crown corporations, and federally regulated businesses and industries.

The Canadian Human Rights Commission (the Commission) was established by Parliament to administer the Act. Included in its role was a mandate to foster public understanding of the Act and recognition of its principles. The Commission was also given the task of investigating complaints of discrimination lodged under the Act.

If, following an investigation of a complaint, the Commission determines that an inquiry is warranted, it refers the matter to the Canadian Human Rights Tribunal (the Tribunal), a quasi-judicial body. The Tribunal then holds hearings to decide whether a discriminatory practice, as defined under the Act, has occurred. Like the Commission, the Tribunal’s mandate is established by the Act.

Parliament originally created the Commission and the Tribunal as an alternative to the more formal legal processes of the Federal Court and as a means to achieve prompt, impartial, and expert resolution of human rights complaints. However, the approach that has evolved has become cumbersome, time-consuming and expensive.

During fiscal year 1997-98, the Commission spent approximately $15 million. For fiscal year 1998-99, it plans to spend about $14.8 million. This amount includes about $800,000 that will be used by the Commission to conduct employment equity audits as required under recent amendments to the Employment Equity Act. The Tribunal’s budget for 1997-98 was about $1.9 million; in 1998-99 it is expected to be about $2.2 million. These expenditures by the Commission and the Tribunal do not include costs incurred by complainants or by respondents who are often federal government departments or agencies.

The two bodies mandated by Parliament to administer and enforce the Canadian Human Right Act play crucial roles in safeguarding the rights of individual Canadians. As a consequence of this and the costs incurred, the Committee decided to hold a hearing on the results of an audit performed by the Auditor General Canada of the Commission and Tribunal. Accordingly, the Committee met on 27 October 1998 with Mr. David Rattray, Assistant Deputy Auditor General and Mr. Alan Gilmore, Principal, Audit Operations Branch, from the Office of the Auditor General of Canada. Mrs. Michelle Falardeau-Ramsay, Chief Commissioner, and Mr. John Hucker, Secretary General, represented the Canadian Human Rights Commission. Ms. Anne Mactavish, President, and Mr. Michael Glynn, Register, represented the Canadian Human Rights Tribunal.

OBSERVATIONS AND RECOMMENDATIONS

The audit’s most striking finding was that the Commission takes an inordinately long time to process complaints. For example, since January 1996, the Commission took almost two years on average to reach about 1,170 final decisions. In about 16 percent of cases, it took three or more years. (10.41) This contrasts with the Commission’s own standard of nine months to investigate a case and about one year to reach a final decision.

Lengthy periods to investigate complaints and to reach final decisions have resulted in a considerable backlog of cases. According to the Commission’s own definition, a complaint is in backlog if it is still under investigation nine months after it has been filed. Using this benchmark, the audit discovered that, in 1997, 48% of the Commission’s 900 open cases were in its backlog. (10.49)

The long length of time taken by the Commission to process complaints and the resulting backlogs are not new phenomena; the Auditor General made similar observations in Chapter 11 of his Report to the House of Commons in 1985. Subsequent efforts to address these problems have not met expectations.

The Commission did not refute the findings of the latest audit. The Chief Commissioner instead stressed the growing complexity of the environment in which the Commission operates and the steps that it will take to produce swifter resolution of complaints. These measures include putting together a task group to focus on clearing up delayed complaints, providing more specialized training for staff, and instituting a human resource plan intended to help the Commission retain trained and experienced investigators. The Chief Commissioner told the Committee that she was confident that these efforts would place the Commission on a firmer footing in two years. (1550)

Although the Committee recognizes that the Commission is attempting to address delays and backlogs both now and in the future, it has several concerns regarding the Commission’s plans. The first involves the projected cost of these efforts. The second involves previous attempts that have failed.

The Chief Commissioner told the Committee that a "one-shot deal of money would be necessary" to clear up the current backlog over two years (1620) and that the Commission "will be requesting additional funds to supplement the action" being taken internally. (1550) In his Report, the Auditor General indicated that this request might amount to $1 million. (10.53) The Assistant Deputy Auditor General, however, advised the Committee that the problems revealed by the audit "cannot be simply solved by providing more resources."(1545)

The Committee notes that the Commission has received additional funding in the past to clear up its backlogs. In 1989-90, for example, it was given a permanent annual funding increase of approximately $411,000 for the purpose of eliminating its backlog over a five-year period. Between 1992-93 and 1997-98, the Commission spent almost $1 million to hire contractors to conduct investigations in an effort to reduce its backlog. Clearly, if the solution were simply to spend more money, time standards for investigations and complaint resolution would have been met by now, and backlogs either eliminated or significantly reduced.

In its most recent Performance Report (for the period ended 31 March 1997), the Commission informed Parliament that it is giving priority to eliminating its backlog and improving the complaint process. To this end, it had put in place a review and oversight process providing for management direction at critical points and had begun to develop a mediation project intended to resolve a significant number of complaints early in the process. In a footnote, the Commission added that since the end of fiscal year 1997-98, it had taken other steps such as reallocating resources, on a temporary basis, to reduce the backlog and reviewing its compliance standards and procedures. It goes on to indicate that it will report on these measures in its next Performance Report.

In light of the above observations, the Committee concludes that the expenditure of additional funds alone will not contribute to the long-term solution of the problem and recommends instead:

Recommendation 1

That the Canadian Human Rights Commission assign priority to investigating and resolving complaints lodged under the Canadian Human Rights Act by continuing to explore opportunities offered by the reallocation of resources from within its existing budget.

In addition, the Committee recommends:

Recommendation 2

That the Canadian Human Rights Commission delay requesting additional funding until such time as it has thoroughly assessed the measures it has taken to eliminate its backlog and improve the processing of complaints and can report the results to Parliament.

Furthermore, the Committee recommends:

Recommendation 3

That should the Canadian Human Rights Commission come forward with a submission for additional funding for this purpose, Treasury Board Secretariat take into account the concerns expressed by this Committee and the Auditor General of Canada. In particular, Treasury Board Secretariat must seek firm assurances that any additional funding, should it be granted, will be directed exclusively toward the purposes outlined in the submission.

In his Report, the Auditor General mentions a specific means that could be used by the Commission to expedite processing of complaints. In paragraph 10.83, he asserts that the Commission’s conciliation efforts would be improved by using mediation upon the receipt of a complaint. The Ontario Human Rights Commission recently initiated a voluntary mediation program to resolve cases early in the investigation process. The Auditor General suggests that if the Canadian Human Rights Commission were to establish a similar mediation program, it "could result in complaints being resolved sooner and with less cost."(10.84)

As previously indicated, the Commission has developed a mediation project for implementation in 1998-99. The Commission asserts that this mediation project "will resolve a significant number of complaints early in the process, thus reducing the need for investigation, conciliation and litigation."

The Committee believes that this measure has the potential to reduce the number of complaints requiring investigation to a more manageable level, thus reducing the time involved, as well as the backlog and costs. The Committee therefore recommends:

Recommendation 4

That the Canadian Human Rights Commission proceed with the implementation of its early mediation program during the current fiscal year (1998-99), and

Recommendation 5

That the Canadian Human Rights Commission develop and make public specific numerical targets for the number of cases that will be dealt with through early mediation and regularly report progress against these targets in its Performance Reports beginning with the period ending 31 March 1999.

The Committee is concerned about the absence of specific detail with regard to the Commission’s planned response to the Auditor General’s recommendations. At one point in her testimony, Mrs. Falardeau-Ramsay stated that the Commission was in the process of setting up an action plan which would be provided to the Committee and the Auditor General. (1620) The Committee wishes to review this action plan and therefore recommends:

Recommendation 6

That the Canadian Human Rights Commission submit its action plan for reducing delays in its complaints investigation and resolution processes to the Standing Committee on Public Accounts no later than 30 April 1999. This plan must include target implementation dates and anticipated outcomes, such as specific targets for reducing delays and the backlog, for all of its components.

The quality of the investigations conducted by the Commission represents another area of concern. While the audit did not comment on the quality of the outcomes produced by investigations, it did reveal that two of the documents intended to contain information for investigations --- the Complaint Analysis and Assignment Form, and the Investigation Plan --- were often not completed. (10.70) This prompted the Auditor General to report that he was "concerned that the Commission is not consistently adhering to some of its key investigation standards that are designed to ensure the quality of investigations." (10.74)

In their testimony, Commission witnesses agreed that investigation plans were not completed in every case and that the Commission had not met its own standards in that regard. However, rather than adhering to these standards, the Commission indicates that they will be reviewed instead. In its response to the audit that appears in the Auditor General’s Report, the Commission goes further, indicating that its standards were put in place when workloads were less demanding and that "their contribution to the investigation process may need to be reassessed."

The Committee agrees with the Auditor General that the existence of, and adherence to, clear investigation standards is required to ensure the quality of investigations. The Committee also agrees with Mr. Alan Gilmore who testified that the Office of the Auditor General believes that a commission that is investigating human rights "needs to have the information it says it needs to have, otherwise it is going to run into difficulty." (1710) There are several things that could be done to reduce the time it takes to complete investigations; eliminating or ignoring investigation standards must not be among them. The Committee therefore recommends:

Recommendation 7

That the Canadian Human Rights Commission retain its key investigation standards, clarifying them where necessary, and ensure that they are adhered to on a consistent basis for all investigations.

Furthermore, the Committee recommends:

Recommendation 8

That the Canadian Human Rights Commission conduct regular reviews of its investigations that include a review of adherence to standards and report the results in its annual Performance Reports.

In making the above observations and recommendations, the Committee is conscious that they are directed toward finding timely solutions to some of the problems identified by the audit. This is appropriate, given that the Committee’s first concern is for the complainants and respondents who are currently awaiting resolution of human rights complaints. Their needs must be put first and taken care of now.

However, it is apparent to the Committee that the problems revealed by the audit are the result of much deeper systemic difficulties that minor administrative adjustments cannot address. If a lasting resolution is to be found, appropriate and timely legislative change based on a thorough review by Parliament must occur.

The Committee has observed that in his Report, the Auditor General made several references to issues that might appropriately be dealt with within the context of a broad review of the Act. These include:

• the absence of legislative safeguards to ensure the independence of the Commission and the Tribunal from government (10.26);
• the possibility of allowing those parties with sufficient resources and expertise to take their cases directly to either the Tribunal or the Federal Court of Canada, thus easing the caseload and expediting processing (10.45);
• the Commission’s lack of legal authority to enforce deadlines (10.44), an obstacle also mentioned by the Chief Commissioner in her testimony (1635);
• the duality of the Commission’s roles which, on one hand, require it to promote and advocate human rights, and to investigate complaints impartially, on the other (10.57); and
• the Commission’s lack of clear authority to enter into contribution agreements. (10.104)

These issues, as well as several recommendations in paragraph 10.123 of the Auditor General’s Report would require legislative change and should thus be addressed by a comprehensive review.

The Committee notes that the Minister of Justice has stated that a broad review of the Canadian Human Rights Act will be undertaken, and that the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, and the Auditor General of Canada are unanimous in their support for this proposal. Furthermore, Ms. Patricia Lindsey of the Department of Justice informed the Committee that the Department would soon be forwarding recommendations to the Minister of Justice on the best process for reviewing the Act.

Accordingly, the Committee joins with its witnesses in finding that the arguments in favour of a review are compelling and therefore recommends:

Recommendation 9

That by 31 March 1999 the appropriate Standing Committee of the House of Commons be instructed to conduct a thorough review of the Canadian Human Rights Act, and the Canadian Human Rights Commission and the Canadian Human Rights Tribunal, taking into account the concerns and recommendations of the Auditor General of Canada as expressed in Chapter 10 of his September 1998 Report to the House of Commons.

In closing, a number of differences were observed in the way that information was reported in the Commission’s Performance Report for the period ending 31 March 1997, and the way similar information was reported in the audit findings. In order to fulfil its responsibilities to Canadians, Parliament must receive performance information that is direct and comprehensive. The Committee therefore welcomes the commitment by the Commission to improve its Performance Reports by reporting on the challenges it faces as well as its achievements.

CONCLUSION

On 1 October 1998, following the release of his September 1998 Report, the Auditor General presented his priorities to the Committee. When he spoke of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal, he drew the Committee’s attention to the fact that the "impact of [delays] on thousands of Canadians who seek redress for alleged causes of discrimination can be devastating." (1535) The Auditor General has pointed out that while Parliament established the Commission and the Tribunal to resolve human rights complaints quickly, impartially and expertly, the approach that has evolved has become "cumbersome, time-consuming and expensive." (10.1)

Timely action must be taken to speed up the investigations process and reduce the backlog of cases. At the same time, the philosophical foundations and the legislative and policy framework of the Canadian Human Rights Act, and the Canadian Human Rights Commission and the Canadian Human Rights Tribunal must reviewed. Just over twenty years have elapsed since passage of the Act and establishment of the Commission and Tribunal. During that time, the human rights environment has evolved dramatically. It is time that the laws and administrative apparatus that support the protection and promotion of these rights be reviewed and, if necessary, renewed. This will ensure that Canada will have the most effective mechanisms for addressing human rights issues into the next century.

The Committee is confident that conscientious effort on the part of all concerned will result in an approach to the protection of human rights that will meet the demands of all Canadians.

Pursuant to Standing Order 109, the Committee requests that the Government table a comprehensive response to this Report.

A copy of the relevant Minutes of Proceedings (Meetings Nos. 42, 50 and 51) is tabled.

Respectfully submitted,

JOHN WILLIAMS

Chair