Defining Rights and Wrongs : Bureaucracy, Human Rights, and Public Accountability [1 ed.] 9780774855877, 9780774813525

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Defining Rights and Wrongs

Law and Society Series W. Wesley Pue, General Editor The Law and Society Series explores law as a socially embedded phenomenon. It is premised on the understanding that the conventional division of law from society creates false dichotomies in thinking, scholarship, educational practice, and social life. Books in the series treat law and society as mutually constitutive and seek to bridge scholarship emerging from interdisciplinary engagement of law with disciplines such as politics, social theory, history, political economy, and gender studies.

LAW AND SOCIETY

Rosanna L. Langer

Defining Rights and Wrongs: Bureaucracy, Human Rights, and Public Accountability

UBCPress.Vancouver.Toronto

© UBC Press 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), www.accesscopyright.ca. 15 14 13 12 11 10 09 08 07

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Printed in Canada on ancient-forest-free paper (100% post-consumer recycled) that is processed chlorine-and acid-free, with vegetable-based inks. Library and Archives Canada Cataloguing in Publication Langer, Rosanna L. (Rosanna Lillian), 1955Defining rights and wrongs : bureaucracy, human rights, and public accountability / Rosanna L. Langer. (Law and Society, ISSN 1496-4953) Includes bibliographical references and index. ISBN 978-0-7748-1352-5 1. Human rights – Canada. 2. Human rights – Ontario. 3. Ontario Human Rights Commission. 4. Complaints (Administrative procedure) – Ontario. 5. Complaints (Administrative procedure) – Canada. 6. Human rights – Ontario – Cases. 7. Human rights – Canada – Cases. 8. Administrative agencies – Canada. I. Title. II. Series: Law and society series (Vancouver, B.C.) KEO819.L35 2007 KF4483.C5L35 2007

353.4’80971

C2006-907042-3

UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca

Contents

Acknowledgments / vii Introduction / ix 1 An Overview of Public Administration of Human Rights Enforcement in Canada / 1 2 The Roles of Frontline Staff and Independent Lawyers in the Public Administration of Human Rights Enforcement / 25 3 Transforming Human Rights Complaints into Cases / 64 4 Publics, Counterpublics, and the Public Interest / 98 Conclusion / 130 Appendix: Excerpts from the Ontario Human Rights Code / 139 Notes / 141 Bibliography / 173 Index / 186

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Acknowledgments

I am grateful to the officials and staff of the Ontario Human Rights Commission (OHRC), particularly the frontline intake staff, who spoke to me so candidly about their work. Thanks must also go to Ted Shaw, OHRC Policy and Education Branch, who is the unofficial archivist for the Commission and who found and made available to me a stack of Commission policy documents and other materials that would otherwise have been impossible to find. Many lawyers of the Ontario human rights bar, both complainant and respondent counsel, generously made their time and thoughts available to me. I also wish to thank the academic reviewers solicited by UBC Press for their close reading and very helpful suggestions, which are reflected in the final version of this work. I owe a particular debt to my academic mentors, now colleagues, who encouraged me to see this project as a bookworthy endeavour and challenged me to identify and trust my own insights and to sharpen my focus. Thanks to Toni Williams, Lorne Sossin, Roderick Macdonald, and Wes Pue, midwives all. I dedicate this book to my strongest supporter and mental health coach: to my husband Jeff, who fed me, placed countless cups of tea at my elbow, took me out for walks, reminded me to breathe, and listened to everything.

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Introduction

The fundamental protection of the rights of the individual is not so much in the substantive law as in the procedure by which it is administered. – Hon. James Chalmers McRuer, former Chief Justice of the High Court of Ontario (1968)

Canadian human rights commissions are subject to seemingly unending criticism. Since the creation of the federal and provincial human rights commissions beginning in the 1950s, a long string of studies, position papers, inquiries, self-evaluations, and reviews have pointed out various shortcomings and recommended changes for resolving systemic problems once and for all.1 Media reports and commentaries on decisions to file a complaint, accept a complaint, or decide on a complaint appear daily. Editorials and letters to newspaper editors are written. Press conferences are held. There can be no doubt that the domestic processing of human rights complaints attracts a great deal of public attention, scrutiny, and interest. Despite all this heightened scrutiny, there is much below the surface that we don’t know. When people contact the human rights commission or a human rights lawyer, how do they think about and use human rights discourse? How are their experiences characterized by legal actors? What happens when people encounter official understandings of discrimination? How are complaints turned into cases? How are cases shaped by professional and operational considerations? How can these multiple facets of meaning-making be reconciled? This study is not a manual for reform, although reform is arguably compromised if it fails to account for the experiences of those who seek

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out a complaint-processing system and for the practical demands of achieving one. Neither does this book primarily debate the usefulness of domestic human rights commissions or legislation; we must accept that, as creatures of statute, commissions can be abolished or their functions transformed through a legislative vote. Rather, my interest lies in mapping and understanding the interactions among lay comprehensions of rights and of the legal systems where rights are administered. The relationship between law, public administration, and day-to-day socio-legal practices is a complex and dynamic one. My research provides a snapshot of the social and administrative processes and of the interactions – and the constraints on those interactions – whereby domestic human rights law is accessed and interpreted as a means of resolving individual grievances. The core of this inquiry is how participants’ expectations intersect with legal practices and administrative processes to transform experiences into cases. How is law actualized? How do administrative and professional practices constitute “human rights”? How are the functions, purposes, and goals of the public administration of human rights framed, and how are we to evaluate them? The explicit dimension explored here is the roles played by human rights commission staff and professional intermediaries in shaping, legalizing, and excluding human rights violations, that is, selecting and discarding elements of claimant narratives in order to frame or reject these stories as legal violations. Their roles, conduct, and experiences are situated in turn within the broader context of public administration, which encompasses budget allocation, caseload, the politics that place demands on an administrative system, and a host of practices shading into policy and the spheres of community and provincial party politics. Once these aspects of the domestic human rights complaint process are revealed, it becomes possible to analyze the function, symbolism, and ideology of current practices. This research focuses on complaints received and processed by the Ontario Human Rights Commission, an “arm’s-length” public administrative body created with the specific mandate to investigate and prosecute violations of the Ontario Human Rights Code.2 It holds significant implications, however, for other government bureaucracies mandated to deal with voluminous commonplace claims and driven by the dual value systems inherent in public administration and corporatism. Overview of This Book

Assertions of rights violations have multiple dimensions and meanings. Domestic human rights legislation covers only some of these. How are

Introduction

everyday interpretations of discrimination, harassment, and human rights transformed into legal claims? During intake into the current Ontario system for assessing, investigating, and resolving domestic human rights complaints, complaints begin to be transformed into cases in accordance with intake workers’ understanding of jurisdictional boundaries. Independent human rights lawyers, guided by their understanding of professional practice, also negotiate the transformation of complaints into cases. The processing of complaints is informed by operational considerations and policies. What constitutes the public interest in human rights enforcement is contested by special interest groups in the policy consultation process. My research reveals that domestic human rights administration is challenged both by the disjuncture between human rights ideals and operational demands and by active destabilization by reform advocates. To set the stage for an analysis of subjective accounts and normative processes, it is helpful to consider what the Ontario Human Rights Code is intended to achieve. Chapter 1 provides a historical overview of the Ontario context for provincial human rights policy and implementation, and a review of statutory, case law, and international rationales for current approaches to human rights enforcement. While the history shows us a legacy of discriminatory practices rightly deserving of state sanction, the language of human rights codes and covenants reveals our aspirations and ideals. Both legacy and ideals also flavour contemporary participants’ expectations about state enforcement systems and experiences of human rights violations. This observation is tempered by the professional, institutional, and structural constructs that are at the heart of this study. In legal research, little attention has been paid to the public administration of statutorily recognized rights other than in the process of judicial review of decision making. It has been argued that legislative and judicial decision review of decision making is remote from its actual implementation through the guidelines, directives, and codes that can be collectively termed “soft law.”3 Alternatively, these elements of soft law provide a means whereby legal influences can be brought to bear on administrative discretion.4 Examination of the administrative law literature and human rights tribunal5 and court decisions provides a limited and also somewhat distorted view of human rights decision making. Human rights case law shows only those complaints that the Ontario Human Rights Commission has decided are viable to put forward or those challenged by one or another party. Furthermore, they tell us little about commonplace administrative processes “on the

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ground,” and even less about the implications of judicial decisions for day-to-day practices. Recent critiques of Canadian human rights commissions, specifically the Ontario Human Rights Commission, present a picture of administrative processing from a distinct perspective and with specific reform goals. Besides reflecting how human rights commissions are perceived by communities of interest, these studies point to the critical roles played by structural and discretionary forces in shaping complaint processing. The object of this book is not reform. It merely adds to current policy debates by providing a highly nuanced account of the practice of enforcing human rights law. By exploring the cross-hatch of tensions among aspirational, professional, and systemic objectives in domestic human rights enforcement, and the role of different agents in shaping complaints, this study enhances our understanding of domestic human rights administration and contributes to a growing literature on public administration. In Chapter 2, the rise of operational imperatives in shaping complaint intake is shown through an analysis of organizational materials and staff understanding of their work. What recent public and internal organizational reviews do not address so much as reveal is the significant influence of the goals of professional intermediaries in human rights implementation. This chapter situates lawyers within a professional community that infuses their understanding of the work they do and their relationship to the Commission. The examination of lawyer representation in the domestic human rights complaint process also raises questions about whether the goals of democratization and rationalization of human rights administration are furthered or subverted by the intervention of professional intermediaries. A focus on process provides a springboard for asking how conflicts over rights are shaped through multiple interactions, what people know about avenues for making a human rights complaint and how accessible these mechanisms are, and problems that may arise in the systemic translation, management, and implementation of human rights ideals. Chapter 3 examines how complainant, intermediary, and operational interests are met in the active assertion, contest, and construction of viable human rights complaints among multiple participants. Human rights complaint processing can be distinguished from juridical responses to other types of legal conflict in at least two ways. First, elimination of discrimination and censuring of human rights violations are evolving areas of distinct public interest. As such, they fall into a realm of public law with a high exposure to public opinion. As can be

Introduction

seen from common parlance and the frequency of rights claims of various sorts, we all consider ourselves experts on rights. Second, responses to complaints in Canada are predominantly, but not exclusively, managed through independent administrative agencies that are empowered to enforce a statutory regime. Of significant interest, therefore, is how participation is conceptualized, shaped, facilitated, and constrained by staff and legal practitioners through legislation, enforcement procedures, policy developments, and operational considerations – in sum, the social, structural, and ideological constructs of the domestic human rights process. Chapter 4 reaches towards the larger question underpinning current approaches to the implementation of human rights, and asks: What is the public interest in human rights enforcement, and is it being met? Through an examination of agency materials, case law, field study interviews, and public administration literature, articulations of the public interest are identified and explored to show how the public interest is actively defined and debated in the processes of a public administrative body charged with the protection of domestic human rights. I interviewed a total of ten lawyers, nine Ontario Human Rights Commission Inquiry and Intake staff and six complainants who responded to publicity about my study in Toronto over the course of 2001-02. These interviews, which were one to two hours in length, were recorded and transcribed and then analyzed both thematically and by subject group. In part, these interview transcripts provided me with further conceptual and thematic direction. I began this project with an expectation about lay definitions of rights and encounters with a legal regime. I anticipated a one-way process of transformation from social problem to legal violation as lay complainants encountered official understandings. What has emerged is considerably more complicated, as I unearthed multiple realities overlapping to form the whole of an administrative complex. The field study data reveal a cross-hatch of themes and tensions. Domestic human rights administration has proved to be a locus of challenge to state control of the legal ordering of discriminatory social conduct. Some of the prominent themes found in this study include the interaction between cultural and legal understandings of discrimination, how bureaucratic gatekeeping is practised through the selective inclusion and exclusion of cases, management of clients by agency staff and lawyers, the influence of professional communities on the outcome of individual cases, and the contest among advocacy groups claiming to represent the public interest. These themes contribute to the book’s

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central focus on the social construction, through administrative processes, of the meaning of legal events. Long before the likelihood of adjudication, the law is interpreted and applied to messy human affairs and conflicts and their resolution, raising issues of the understanding that staff, lawyers, and clients have regarding role, institutional demands, entitlement, processing, and closure. Not only does each actor or participant contribute to this process from his or her own social and professional location but these perspectives also fuse in a collective process of interpretation and refinement. “Law” is the outcome of these processes. Within a context that accounts for law as an institutional discourse of power and the subjective agency of individuals in the social construction of the meaning of “law” events, this study finds an active contest among complainants, intermediaries, and others as to meaning, validity, and justiciability. It draws on small but rich literatures on how dayto-day practices and interactions between frontline agency staff, legal intermediaries, and citizens create legal meaning, and on how interactions between bureaucracies and special interest groups influence legal policy and procedural choices. The scope of this work thus encompasses both an empirical focus on the workings of a single agency and a qualitative analysis of the roles and understandings of professional intermediaries and administrative staff. These actors’ experiences of the legal system within which they work are played out amid pressing operational demands, professional aspirations, and a deeply symbolic discourse, which inform the construction of relatively few legal claims from a huge body of complaints made to a public administrative agency.

Defining Rights and Wrongs

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1 An Overview of Public Administration of Human Rights Enforcement in Canada

Although Canada’s record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. – Supreme Court of Canada (1998)

The development and introduction of anti-discrimination legislation in Canada must be considered in the context of endemic racial discrimination in Canadian life. Before, during, and even after the Second World War, officially sanctioned policies to preserve the position of the AngloProtestant urban majority through harshly restrictive immigration controls ensured that undesirable “non-assimilables” entered Canada as second-class citizens, if at all.1 The “non-preferred” immigrants of this era were Jews, Asians, and Blacks. Immigration officials and others decried these undesirables for competing for jobs with Anglo-Canadian, British, or the more desirable northern European immigrants. In 1931, for example, an Order-in-Council “effectively banned all non-agricultural immigrants unless either British or American.”2 Official policies echoed and legitimized the exclusionary racism and anti-Semitism of both French and English Canada. Opinion polls ranked immigrants that Canadians preferred to keep out: of those canvassed in 1946, 60 percent of Canadians listed Japanese as the most undesirable immigrants, 49 percent listed Jews as the next most undesirable people, and 31 percent identified Negroes as undesirables.3 For those undesirables already on Canadian soil, racism and discrimination were commonplace and widespread. J.W. Walker states: “From the late nineteenth-century until the middle of the twentieth, racism

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infused Canadian institutions, government policies, and public behaviour.”4 Legislators introduced various restrictive limitations on enfranchisement,5 eligibility for public office, business licensing,6 business location, primary7 and post-secondary education,8 professional designation, employment,9 and union membership. The ideology of freedom of contract also removed significant sets of social relationships, such as employment and the exercise of private property rights, from state governance, thereby allowing discriminatory practices to flourish. In Ontario, these beliefs were used to support racially exclusionary practices, such as refusing to rent accommodation to minorities, prohibiting property conveyance to Jews,10 and barring Blacks and Jews from restaurants, theatres, hotels, resorts, beaches, and parks.11 Private lawsuits did not provide a remedy. For example, in Franklin v. Evans,12 the plaintiff was unsuccessful in his suit for damages “for the insult and injury caused ... by the refusal of the defendant, a restaurant-keeper ... to serve the plaintiff, a negro, with luncheon in the defendant’s restaurant.” Christie v. York Corporation, decided by the Supreme Court of Canada on the eve of the Second World War,13 authoritatively confirmed that a businessman deciding to refuse service to “coloured persons” was not acting contrary to good morals or the public order. Freedom of commerce was upheld by the Court in finding no liability on the part of a Montreal tavern refusing to serve a glass of beer to a Black man. Ontario enacted its first law banning racial discrimination in publication, broadcast, or signs in 1944.14 The Racial Discrimination Act was a quasi-criminal statute dealing exclusively with the prohibition of commonplace racially and religiously discriminatory “Whites Only” signs and advertisements. Regardless of the illegality of advertising one’s intentions, racially exclusive practices continued after the war, with many reported incidents of Ontario Blacks and Jews being discriminated against in employment, education, rental accommodation, provision of common services in restaurants and barbershops, and exclusion from public skating rinks and dance halls.15 And despite Canada’s becoming a signatory to the United Nations Charter and the Universal Declaration of Human Rights in 1946, and the laudable finding in Re Drummond Wren16 that racially restrictive land covenants were contrary to public policy and international law, freedom of contract was soon reasserted in Ontario as a policy that took precedence even over international expressions of universal human rights. In Noble and Wolf v. Alley,17 Schroeder J. of the Ontario High Court held that a restrictive covenant barring sale, transfer, lease, or rental of a vacation property at Beach O’ Pines, Lake Huron, to “Jewish, Hebrew, Semitic, Negro, or coloured persons” was

Public Administration of Human Rights Enforcement in Canada

valid. The Ontario Court of Appeal affirmed his finding unanimously, with the obiter dictum of Robertson C.J.A. that although “mutual goodwill and esteem among the people of the numerous races that inhabit Canada is greatly to be desired,” this cannot be achieved through legislation.18 The restrictive covenant in Noble and Wolf v. Alley was found invalid for uncertainty by the Supreme Court of Canada,19 but the Court declined to declare that racially restrictive covenants were illegal on moral or public policy grounds.20 Regulatory Choices in the Evolution of the Ontario Human Rights Code

As can be seen from this brief overview, racism and anti-Semitism were endemic to Canadian society in the first part of the twentieth century, reflected and reinforced in law, political life, and official policy and decision making. In the discourse of the era, this intolerance was often expressed in terms of citizenship and denunciation of the idea of hyphenated citizenship and second-class citizenship. Reliance on private law remedies, and even the introduction of human rights legislation to change discriminatory views and practices, were by no means assured of success. The prejudiced attitudes of the majority did not go unchallenged, however.21 The Jewish Labour Committee of Canada, an organization of trade unions with a predominantly Jewish membership, had concluded that “fair practices” legislation in the United States provided a working model for addressing the problem, and, in partnership with the Canadian Congress of Labour and the Trades and Labour Congress of Canada (now merged as the Canadian Labour Congress [CLC]), established the Labour Committee on Human Rights (LCHR).22 The interests of this group focused on social action, legislation, and education to achieve social justice. Concerted activism by the LCHR, the newly formed Association for Civil Liberties, the National Unity Association, the Negro Citizenship Association,23 and Japanese and church groups included test cases organized by sociologist and LCHR national director Sid Blum. In addition, large representative deputations to municipal councils were organized by Blum’s LCHR successor, Alan Borovoy, to petition for anti-discrimination legislation.24 This social activism, along with an evolving international consciousness about the importance of human rights, led to the establishment of the public administration of anti-discrimination legislation. Historian George Egerton asserts that the clamour for protection for human rights was increasingly heard from mainstream church organizations, “social gospellers,” and the

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Co-operative Commonwealth Federation (CCF); he pointed, for example, to the 1944 consultation report by the United Church of Canada, “Church, Nation, and the World Order.”25 In May 1947, partly in order to divert pressure being exerted by civil libertarians, the federal Liberal government appointed a Special Joint Committee of the Senate and House of Commons on Human Rights and Fundamental Freedoms.26 In response to egregious practices, the province of Ontario introduced the Fair Accommodation Practices Act,27 prohibiting discrimination in services, facilities, and accommodations customarily admitting the public.28 The appointment of County Court judges to hear complaints enhanced the credibility of boards of inquiry set up under the Act, but even after the passage of the Act, these judges often failed to exhibit a requisite sensitivity to the nature of discriminatory harm. For example, R. v. Emerson and R. v. McKay29 were early test cases where a racial mix of activists sought service in two Dresden, Ontario, restaurants to collect evidence that Blacks were being denied service there, contrary to the Act. Although both proprietors were convicted in Magistrate’s Court, both appeals were quashed by Grosch J., the County Court judge who was soon identified as one of the property owners who had fought to uphold the racially restrictive covenant attacked in Noble and Wolf v. Alley. The judge noted that there had already been, at the direction of the Attorney General, a public investigation into the “alleged” conduct of the two restaurateurs and, if service was in fact denied, “there quite possibly could also be reasons other than colour.”30 He therefore held that the prosecution had not satisfied the onus of proving a violation beyond reasonable doubt. Despite the allegations of bias associated with Grosch J.’s involvement in the earlier property covenant case, neither the Attorney General nor the Minister of Labour appealed his decisions. The activists soldiered on, however, and were able to obtain a conviction against one of the proprietors in the following year.31 It was to be the sole conviction under the Fair Accommodation Practices Act.32 It is evident that both judges and politicians were often reluctant to see discrimination as truly illegal behaviour. While criminal prosecution had the advantage of public carriage of a complaint, it had the disadvantage of requiring a criminal standard of intent – namely, intent beyond a reasonable doubt – and in these early iterations of actionable harm, the only enforcement machinery lay within the discretion of senior political officials. Furthermore, even if criminal intent could be proved, the individual complainant got no remedy; any fines went directly to the public coffers. In part to address these limitations, the reach

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of human rights policy in Ontario after the Second World War was extended through non-criminal statutes pertaining to specific areas of activity (such as employment or housing) or specific grounds (such as equal pay regardless of sex) and eventually through consolidated human rights codes. In addition to the Racial Discrimination Act and the Fair Accommodation Practices Act, other early anti-discrimination legislation in Ontario originated in the labour and employment context.33 This made good sense as discrimination in employment has consistently accounted for the overwhelming majority of complaints to the Ontario Human Rights Commission (OHRC). Furthermore, the Act to Promote Fair Employment Practices in Ontario34 introduced a conciliation model based on the conciliation and commission board hearing system of the Ontario Labour Relations Act,35 as did the Fair Accommodation Practices Act three years later.36 Conciliation and settlement were also the preferred models for resolving discrimination complaints, with the appointment of a commission (at the discretion of the Minister of Labour, on the recommendation of the Director of the Fair Practices Branch of the Department of Labour) only in exceptionally flagrant cases.37 In 1958, the Ontario legislature passed an act to establish an antidiscrimination commission, whose primary purpose was to publicize all human rights legislation in Ontario.38 With the consolidation of all fair practices statutes, the commission’s powers were broadened to include administration of the law as well as education. The OHRC was established in its current form in 1961. In 1962, all anti-discrimination statutes were consolidated into the Ontario Human Rights Code.39 Originally responsible to the Minister of Labour, the five commissioners appointed by the Lieutenant Governor in Council or their three-person staff could, after receiving a formal written complaint and after intensive interview and investigation by staff, make efforts to conciliate and settle individual cases. If the settlement approach proved unsuccessful, the Commission could recommend to the Minister that a Board of Inquiry be appointed. The Board possessed powers similar to those of a Conciliation Board under the Ontario Labour Relations Act, including compelling witnesses, taking evidence, and attempting to settle matters between parties; it could order that discriminatory practices cease, or prosecute to obtain a conviction, after which a fine could be levied. With the new focus on conciliation, however, the first director boasted that there had been only four Boards of Inquiry and no prosecutions under the consolidated Code in its first two years of implementation.40 The positive influence of the Commission, however, was held to be

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reflected in its willingness to investigate and dispose of approximately forty-seven complaints alleging discrimination outside of its jurisdiction in the first two years of operation.41 In 1972, sex and age discrimination were added to race and religion as prohibited grounds under the Code. After a comprehensive review in 1976,42 a revised Code (proclaimed in 1982) added physical and mental handicap, pardoned criminal record (in employment), and receipt of social assistance (in housing), as well as prohibitions on race and gender harassment. The social areas covered, including provision of goods and services and equal access to facilities, were also expanded. Until 1971, the approach to enforcement was individualized and assumed that discrimination was direct and intentional, although generally misguided. The US Supreme Court decision in Griggs v. Duke Power Company 43 held, however, that intent was not required and that the impact of adverse treatment could constitute discrimination. Although not precedential in Canadian law, this decision had important implications for understandings of constructive (or unintentional) and systemic (or group) discrimination under the Code, and the enforcement process was modified in 1972 to enable the Commission itself to initiate complaints.44 The Commission review of 1976 reaffirmed the agency’s multiple goals: Legislation on human rights can and should perform several functions in relation to community consensus. It should sum up and declare public policy, officially and unequivocally. It should, thereby, encourage people to take a personal stand against imagined or real pressures to “go along with” discriminatory practices. It should provide legal redress for individuals and minority groups whose rights are being over-ridden. It should create peaceful means for resolving inter-group tensions that might otherwise seek more explosive solutions. Human rights legislation should in itself be an expression of the decent values of its community and provide support by example and by law for better public understanding and respect for these values.45

For the common law provinces, however, the Supreme Court of Canada affirmed in Board of Governors of Seneca College v. Bhadauria 46 that there is no independent right of action springing from the public policy objectives expressed in the Code, nor is there an intentional tort of discrimination protecting plaintiffs against the unjustified invasion of their interests. The Court held that the substantive and elaborate enforcement provisions of the Code form a comprehensive regime. The judgment of the Court, delivered by then Chief Justice Laskin, declared:

Public Administration of Human Rights Enforcement in Canada

[N]ot only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code.47

The provincial Human Rights Code thus represents a comprehensive and exclusive enforcement scheme, which precludes the parallel development of a tort of discrimination.48 Further reorganizations of the administrative structure brought Ontario human rights administration into compliance with evolving principles of fairness in administrative law, by severing the Commission from the Board of Inquiry49 and enhancing both the participation and rights of complainants. Thus, although its primary purpose was to change hearts and minds on a large social scale, the design of the Commission enforcement procedures from the 1970s onward was a way of ensuring that individuals who suffered injustice had access to a publicly carried and accessible process, one that was not subject to exclusionary legal standards of proof and that offered constructive remedies. The consolidated Code sought to overcome the disenchantment with criminal standards of enforcement and judges’ reluctance to impose them by focusing on the objectives of investigation and conciliation, with adjudication only if necessary. Once a comprehensive Code was in effect, however, expansionist rights-conscious reform movements arose in the 1960s and especially in the 1970s.50 Broad social and political developments – such as the second-wave women’s movement, immigration patterns resulting in a more diverse Canadian society, and international initiatives in self-determination and human rights – account in large part for a growth in rights-consciousness.51 The dominant idea that discrimination was essentially misguided and that it was responsive to education and persuasion52 gave way to conceptualizations of enforceable rights to fair treatment.53 The shift in orientation from containment of discriminatory practices to expansion of rights protection was matched by a move towards administrative fairness and procedural rights, motivated by the desire to protect individuals from the discretionary power of administrative agencies.54 The extension of procedural rights55 coupled with inconsistent funding through the 1980s56 and 1990s led to an unresolved tension between expansion, a mounting caseload, and increased formalism. M.K. Joachim, former legal counsel to the Commission, recounts that several operational reviews through the 1980s recommended a reordering of priorities to emphasize policy development, systemic initiatives, and

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improved case-processing methods. Onetime budget increases associated with these studies went instead towards the processing of mounting backlogs of individual cases. Although the Commission saw a steady increase in case openings throughout the 1980s, case closings began to lag. After a 1991 Ombudsman Report concluded that the backlog amounted to a failure to properly enforce the Code, the Ontario Minister of Citizenship allocated $4.23 million over two years to a special task force effort to clean up the backlog. Although $6.4 million over three years was promised, the funding was terminated after two years. In the same fiscal year, 1991/92, case openings jumped by one-third, from 1,971 in 1990/91 to 2,535 in 1991/92.57 They remained at the higher levels until 1996/97, when they dropped suddenly to 1,916. Coincidentally, the budget was cut by 7 percent for the 1996/97 fiscal year (representing a loss of approximately $500,000). Case openings remained low through the rest of the 1990s, until another sudden increase of 37 percent, from 1,775 in 2000/01 to 2,438 in 2001/02. Unfortunately, the budget did not keep pace. Thus, by 2002 year-end reporting, the Commission had opened the same number of cases as in 1994/95, but with $1.2 million less in its budget.58 Staffing followed a similar pattern. As of 30 April 1992, the Commission had a total of 241 employees;59 by 2002, it had only 127. Most of the cuts in staffing were made before 1997.60 A policy of fiscal restraint led to charges by reformists that political will was lacking to make the Commission “an effective agent of social rights.”61 The introduction of the Canadian Charter of Rights and Freedoms62 in 1982 and the implementation of its equality section (s. 15) three years later fuelled a widespread debate about rights that continues to the present.63 The Commission itself asserted that the number of public inquiries and new case intakes in the 1990s increased significantly as a result of improved public awareness of human rights and an increase in Code violations resulting from changing workforce demographics and economic recession.64 What explains the particular shape the response has taken? The first attempts at legislative solutions for endemic racism were not promising, in both the criminal and private law spheres. The introduction of the quasi-criminal Racial Discrimination Act and resoundingly unsuccessful attempts to prosecute through private law contract and tort regimes showed that judges reflected their social environment and, in considering discrimination claims, could be distracted by common law and criminal law principles. They were not likely candidates to promote expansive anti-discrimination values. Incorporating human rights

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enforcement into existing state structures such as the Labour Ministry limited the scope of human rights application and left prosecution to the discretion of senior civil servants. The creation of an independent commission could address discrimination in a specialized, systematic fashion, with the agency’s own agenda integrating the multiple functions of education, policy development, investigation of systemic discrimination, and processing of individual complaints. A historical review indicates that the early dispute resolution approach is well established, and was based on the prototype in the field of labour relations, where parties often have ongoing relations and seek remedies crafted to individual circumstances. It has also been found that providing an effective remedy or accommodation to the complainant was more important than punishing a delinquent respondent.65 Finally, we see the close association of rights-advancement groups – such as Jewish, Black, trade union, civil liberties, and Christian organizations – and the OHRC, with the Commission often relying on these groups to carry out field research and bring instances of discrimination to its attention. These groups continued to provide human rights expertise and play a collaborative role in advancing rights discourse in the community at large. The expansion of rights coverage has been accompanied by increasing caseloads and also, not surprisingly in an era of fiscal restraint where social programs are concerned, by criticisms across the country about the way human rights are administered. Since the mid-1990s, several reviews have been critical of the Ontario Human Rights Commission in particular and of the Canadian human rights enforcement process more generally. They provide a portrait of complaint handling in an administrative environment constrained by expectations about procedural fairness and operational efficiency and held to an ideal standard promised by the subject of the Commission’s mandate. The main issues addressed in these reviews66 centre on access, gatekeeping, delay, conflicts among the multiple agency roles of investigation, settlement, and enforcement, and the inadequacies of the current model in addressing systemic discrimination cases. Because of widespread criticism of the human rights process, the Ontario government established in December 1991 an independent task force, chaired by lawyer Mary Cornish, to review and recommend reforms to enforcement procedures under the Ontario Human Rights Code. The preliminary issues paper inviting submissions67 summarized the primary concerns with complaint processing at that time, including Commission monopoly over complaints, role confusion, emphasis on settlement, delay, and ineffective remedies. After extensive hearings and

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consultations across the province,68 the Ontario Human Rights Code Review Task Force reported in June 1992 (the Cornish Report). Not surprisingly, the primary concerns articulated in the original call for submissions were confirmed. The Task Force heard that those who had made rights complaints were critical of excessive delays at every stage and felt disempowered by a lack of knowledge about the status of their case. Both complainants and respondents felt pressured to settle. There was strong support for some type of hearing process, but one that was informal and non-legalistic. It was suggested that the process of making a complaint should empower people to change deep social patterns of exclusion and power imbalances. Many commented on the lack of widespread and effective public education about human rights. Criticism was aimed at the exclusion of equality-seeking groups and unions in filing claims or consulting on education initiatives – not surprising, given the enhanced roles of these groups in the consultation process.69 The Commission was characterized as remote from the daily lives of those who experience discrimination, and a number of submissions recommended the establishment of community-based human rights centres.70 The Cornish Report went on to outline an extensive proposal for a new human rights enforcement process. This model would be communitybased, with equality rights advocacy centres assisting complainants. It would have the Commission (“Human Rights Ontario”) play a strategic, proactive role in addressing systemic discrimination, and it provided for access to a permanent tribunal of specialist human rights arbitrators, with its own investigative officers and mediators. This proposed restructuring was never implemented. Many of the concerns articulated in the Cornish Report continue to plague provincial commissions. In general terms, community and advocacy groups feel that they ought to have ownership over discrimination claims, over how these claims are pursued, and over the agenda of public human rights bodies. There is a strident desire for the human rights complaint process to be both efficient and transformative. Donna Young, for example, asserted in her 1992 report on racism in the Ontario Human Rights Commission itself that legal counsel could be faulted for “a lack of imagination or an unwillingness to use novel legal arguments.”71 This comment reflects one of several conflicting ideas about the goals of human rights legislation and practice, namely, providing a vehicle for the advancement and expansion of equity goals. It is often difficult to reconcile what we know and try to articulate in legislation about structural inequity with how we conceptualize issues on

Public Administration of Human Rights Enforcement in Canada

an individual basis. Yet this difficulty – tension between the general and the particular – also reflects a more acute tension in human rights legislation, which stems from a recognition of structural inequity yet conveys the impression that an absence of discrimination is the norm.72 In 1993, academics R.B. Howe and M. Andrade surveyed 182 community organizations across Canada with an interest in human rights legislation. They asked about the reputed performance of provincial human rights commissions with respect to complaint handling and educational programs. The groups were questioned on “the effectiveness, responsiveness, and fairness” of the commission in their particular provinces.73 The authors hypothesized that satisfaction would be correlated with levels of funding, but instead found that “regardless of the level of public funding, interest groups expressed a general lack of satisfaction with commission effectiveness.”74 The general problems reported involved excessive delays and case backlogs, inadequate commission initiatives on systemic discrimination and race relations, and timid policy approaches on the part of senior officials. Ontario, with the largest commission in Canada, received the poorest effectiveness rating. The Ontario commission was criticized for its high complaint dismissal rates, delays in investigation, multiple roles, and lack of knowledge and understanding of Aboriginal cultures and traditions. Howe and Andrade also heard that the many levels of bureaucracy were a source of irritation and frustration.75 Interestingly, the community groups perceived their own influence on the commissions in their provinces to be ineffectual.76 The government of British Columbia has commissioned several reports in order to identify necessary reforms. In 1993 and 1994, human rights scholar William Black conducted two important reviews. The 1993 report made a series of recommendations with respect to screening, intake, investigation, mediation, settlement, and staff training, with an eye towards minimizing delays, improving case management, and supporting staff development.77 At the time, BC had a Human Rights Council, which received and adjudicated complaints. Industrial Relations officers from the Ministry of Skills, Training and Labour carried out the key functions of investigation and mediation. Complainants were represented, without means testing, by lawyers appointed by the Legal Services Society of BC. The Council was not empowered to initiate cases on its own, nor could it represent the public interest in litigation. Although some educational programs had been initiated under its guidance, the Council had no statutory mandate for education, and no resources for education, research, or policy development.

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Process delay remained a common concern in the 1994 Black Report; at the same time, there were complaints that investigation was not as thorough as it should have been. According to the Black Report, the mediation process received mixed reviews, with some participants finding it an effective conflict resolution method and others suggesting that it created a feeling of powerlessness.78 A variety of groups pointed to the overlap between human rights and other areas of law and the need for these protections to mesh more smoothly. Participants at almost every meeting recommended establishing some permanent consultation mechanism through which the community groups could share their practical expertise with the agency. While Black noted that the provincial human rights legislation can make a large contribution towards modifying broad patterns of inequality, he also observed that solutions often require the joint action of many parts of government, that the enforcement machinery is complaintbased and thus not driven by its own priorities, and that proving individual or even systemic complaints may require the identification of barriers that may not come to the attention of the individual, the respondent organization, or the Human Rights Council. He proposed a larger role for community organizations in providing human rights advice, screening cases, and assisting those who are considering filing a claim. He also proposed supporting these organizations through the provision of financial assistance, training, and materials. The 1996 BC Human Rights Code79 was largely the product of the 1994 Black Report. The structures for adjudication, administration, and education were separated and the purposes of the Code were clearly expressed. In 1997, the province created the BC Human Rights Commission and the BC Human Rights Tribunal, replacing the BC Council of Human Rights. A Chief Commissioner and Deputy Chief Commissioner, both Order-in-Council appointments, shared a mandate to hold public hearings and consultations to promote, monitor, and assist in implementing employment equity and other special programs. A Commissioner of Investigation and Mediation performed a gatekeeping function, with responsibility for accepting, screening, investigating, mediating, and either dismissing or referring complaints for adjudication. Although the Code provided discretion to do so, policy precluded referring a complaint to a hearing without investigation. In accordance with Black’s recommendations, the BC Human Rights Advisory Council was created to ensure that public concerns were brought to the Commission’s attention and to inform the public about the work of the Commission. Five

Public Administration of Human Rights Enforcement in Canada

years later, during a period of government downsizing, BC abolished the Commission. Complainants are now able to proceed directly to the BC Human Rights Tribunal, which exercises its own screening functions. The BC “Direct Access” model, the first of its kind in Canada, provides for a voluntary early settlement process, which can be converted to an adjudication by written agreement of the parties. If the complaint is not settled or dismissed by the Tribunal, it proceeds to a pre-hearing conference. Hearings are held in person before a single member or threeperson Tribunal panel. In addition, the Ministry of Attorney General contracts with the BC Human Rights Coalition and the Community Legal Assistance Society to act as gatekeepers against unwarranted complaints, to assist complainants in filing complaints, and to provide legal representation at the Tribunal for complainants who fit their criteria.80 Fewer than 50 percent of complainants are represented by the BC Human Rights Coalition.81 It is too early to assess the consequences of this contracting-out of some functions and elimination of others, but some studies point to several obvious changes: the involvement of an authoritative public body at an early stage has been eliminated; the burden now falls on complainants to establish the merits of their case at an early stage; and gatekeeping is not rendered unnecessary but is merely shifted to the Tribunal.82 It bears mentioning that there is no statutory assurance of legal representation, nor is there a clear public accountability mechanism for the contractors. The Canadian Human Rights Act review (the La Forest Report), chaired by retired Supreme Court justice Gérard La Forest, was a blue-ribbon task force assembled by the Minister of Justice and composed of William Black of BC; former member of the Canadian Human Rights Commission and lawyer Renée Dupuis; and former member of the Canadian Human Rights Tribunal Harish Jain. Their mandate was to review the Act, the complaints-based model, and the powers and procedures of the Canadian Human Rights Commission, and to make recommendations for change. The panel developed an extensive research mandate and solicited expertise on the issues, particularly that of adding the ground of social condition to the Canadian Human Rights Act and continuing to exempt the Indian Act from its provisions. They also held extensive consultations with individuals, groups, organizations, employers, government departments, and provincial and territorial commissions. Funding was provided where participation would be dependent upon it. The La Forest Report reviews the findings of the Auditor General of Canada’s 1998 audit of the Canadian Human Rights Commission processes,

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which focused on the individual complaint system. The Auditor General’s report concluded that the approach that had evolved was “cumbersome, time-consuming and expensive.”83 The Auditor General found that in the ten-year period between 1988 and 1998, 67 percent of complaints were “not dealt with” or dismissed, and 6 percent were sent to a tribunal. The Commission was plagued with delays: in 1997 and for most of the 1990s, almost one-half of its caseload was considered to be backlogged, where the investigation was ongoing more than nine months after the complaint had been signed. Several times, the Commission had received extra funds to reduce the backlog. The panel heard that the record of the Commission in initiating and pursuing systemic complaints was poor. The pressure to process individual complaints, as in most if not all of the provincial jurisdictions, had consumed most of the available resources.84 It must be kept in mind, however, that the Canadian Human Rights Commission is also responsible for enforcing the Employment Equity Act, the other major federal legislation for remedying systemic discrimination through the achievement of a representative workforce. The La Forest panel also heard from those making submissions that the process must be more transparent, more streamlined, more flexible, and more authoritative. The most serious issues identified by the panel were delays, perceived conflict of roles, perceptions that meritorious cases were being dismissed, and the Commission’s inability to allocate its own resources. The La Forest Report notes: There is also a recognition of the growing remedial power of the Tribunal and the realization that not only does the system serve a public interest role by reducing discrimination, but it can also provide private justice in the form of full compensation. Lack of access to the Tribunal reduces individual opportunity for private justice and consequently the credibility of the process with human rights groups and other nongovernmental organizations.85

The Report advocated a new direct access claim model with the establishment of a legal clinic to assist with complainant representation. The Commission would continue to handle inquiries86 and assist in drafting complaints, or it could choose to commence a public inquiry into a matter raised by an individual. The full-time Canadian Human Rights Tribunal87 would initiate a pre-hearing process with the discretion to decide in favour of hearings of different types. The panel supported a statutory compliance scheme, with the Commission using and expanding its already considerable powers for setting binding and non-binding

Public Administration of Human Rights Enforcement in Canada

regulatory standards to supplement the claims process. The panel advised that language and structures creating a positive duty on employers and service providers to promote equality and eliminate discrimination were more consistent with the broad purposes of the Act than were simple prohibitions. This supported the general thrust of the panel, which was to endorse and emphasize internal workplace responsibility models, early investigation and resolution, and a unified statutory scheme in the highly unionized federal jurisdiction. To date, however, there has been no implementation of the panel’s recommendations to eliminate the Commission’s investigative function, to establish a legal clinic, or to appoint a full-time Tribunal panel. What are the implications of these studies? Human rights enforcement in the provincial and federal domains is situated at a lively juncture of politics, public pressures, legal sanction, and policy allocations, and remains subject to competing interests and expectations. In postwar Canada, the premise of a policy-based administrative framework for protecting against rights violations was considered positive, but it has come under increasing criticism. In targeting case management issues, these studies also reveal the tangible consequences on human rights enforcement of balancing enhanced procedural rights and constraints based in fiscal restraints. Some of these criticisms require further examination and discussion so that they can be placed in the context of both considerations of administrative law norms and the broader issue of achieving satisfactory dispute settlements. The question of whether procedural justice is adhered to, problems in informal dispute-resolution practices that are not unique to human rights cases, and the complications resulting from delays caused by the parties themselves are issues that are given short shrift in most accounts. We now return to a central tension in human rights administration, namely, the conflict between the real and the ideal, and between the system in place and expectations and perceptions of what that system can achieve. By the measures of procedural justice, the goals of informal dispute-resolution practices, and partygenerated delay, among other criteria, the evaluation of publicly administered human rights systems remains troubling but indeterminate. Inappropriate gatekeeping is a criticism faced by most human rights commissions across the country, but the Ontario commission has the unenviable status of receiving the most inquiries and complaints.88 It typically recommends less than 5 percent annually to a tribunal.89 The observation that the OHRC practises vigorous gatekeeping should not be surprising, but this criticism is often based on the perception that

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the Commission dismisses meritorious complaints because of scarce resources.90 Any consideration of its gatekeeping function with regard to the merits of individual cases is difficult to assess without also committing to a position on whether every case should be heard and adjudicated and in what fashion.91 The reform literature bases its arguments for direct access to a tribunal on the elevation of human rights to quasi-constitutional status. The La Forest Report observes: Claims for direct access to the Tribunal or the courts seem to be based on the idea that the courts have ruled that each case is a breach of a quasi-constitutional right and therefore is deserving of adjudication as a matter of public justice. At the same time, claimants seek a remedy in their own particular cases as a matter of private justice. Consequently, advocates of a direct access approach see a screening function aimed at prioritizing complaints for their public utility as infringing on the public justice value of each and every complaint and at the same time preventing individuals from attaining private justice, which in most cases is extremely valuable to complainants.92

The authors of a research paper on the Canadian Human Rights Commission’s screening function commissioned by the Canadian Human Rights Act Review panel argue that “the screening function and the systemic denial of a right to a hearing severs the substance of human rights claims from the determination of their outcomes.”93 This perhaps overstates the case. The duty to act fairly, in Ontario and federally, encompasses various procedural safeguards. The Ontario Human Rights Code dictates that reasons be given for decisions to “not deal with” a complaint and to “not refer” a complaint to a Board of Inquiry.94 An opportunity to request reconsideration is provided for in the statute. Obviously, some screening process must be applied to the flood of putative complaints. Nor do all complaint-based scenarios lend themselves to a single resolution formula. Clearly, direct access to an oral hearing is not the approach to balancing public and private interests envisioned in the current or historic structure of human rights enforcement, as detailed earlier in this chapter. Whether it represents a future trend remains to be seen.95 Another significant area of criticism, both in the Cornish Report and elsewhere, is that parties are pressured to settle cases that might more appropriately be heard and decided by a tribunal. The word “settlement” – that is, a process of (typically but not exclusively) monetary negotiation, settlement, and payment – is a familiar term of art to legal

Public Administration of Human Rights Enforcement in Canada

professionals, and human rights “settlements” raise issues similar to those in other areas of practice, issues such as pressure, quantum, and satisfactory substantive resolution. Our evaluation of the quality of settlements is further complicated by a consideration of the public interest, which will be addressed more extensively in Chapter 4. As R.A. Macdonald observes, however: “Any given interpersonal conflict is at the same time a reflection of a social conflict.”96 For this reason, some influential writers in the field prefer the term “dispute processing” to “dispute resolution” or “settlement.” W. Felstiner writes, for example: My aversion to “dispute settlement” is based on the conviction that a significant amount of dispute processing is not intended to settle disputes, that a greater amount does not do so and that it is often difficult to know whether a dispute which has been processed has been settled, or even what the dispute was about in the first place.97

While much, much more has been written on the nature and problems of disputing, it is sufficient here to observe that these problems are not unique to the human rights field. Satisfactory outcomes of settlement are problematic even in more commonplace disputes; the criticism here, however, is that human rights complainants and respondents are pressured into settlements. In 1994, the Centre for Equality Rights in Accommodation (CERA) submitted to the Standing Legislative Committee of Ontario on Government Agencies that human rights complaints of a complex nature were discouraged and that complainants were often encouraged to accept minimal settlements even though the settlement would not adequately cover the harm suffered. The CERA submission stated, for example, that there is an assumption by human rights commission investigators that only a “perfect tenant” could have a sustainable complaint against a landlord.98 Similarly, the Advocacy Resource Centre for the Handicapped (ARCH)99 observed an increase in the number of individuals discouraged from filing a formal complaint with the Commission, pressure on complainants to accept unconscionably low settlements, and encouragement to accept “nuisance settlements” offered by employers who are simply seeking the cheapest, most expeditious route to terminating the complaint without acknowledging fault or responsibility.100 The Commission has been censured before about exerting undue pressure on parties to settle by declining to set a Board of Inquiry in a particular case.101 These findings raise troubling questions about complainants’ experiences of the quality of complaint resolution, but the issue is complicated

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by whether or not legal representatives participate in the negotiation, by the fact that the monetary amount of remedial damages is limited by the statute, and by the huge modern shift towards incorporation of alternate dispute resolution (ADR) processes into most areas of legal disputes. The role of intermediaries in complicating the investigation process ought not to be overlooked. As Lovett and Westmacott reported from British Columbia, although the process generally contemplates a limited number of submissions, consisting of the complaint, the respondent’s response, and a reply from the complainant, parties manipulate the system by filing multiple submissions in a process that one senior legal counsel referred to as “submission volleyball.” This practice leads to protracted investigation and increases legal and administrative costs for processing complaints.102 Eliminating the carriage function of an administrative body such as a commission is likely to displace rather than eliminate this practice. It has been recently observed in British Columbia that as the number of cases appearing before the Human Rights Tribunal has increased, the caseload is coincidentally overweighted with procedural rather than substantive matters.103 Perhaps the most damning criticism is that the commissions, premised on citizen access, present an inaccessible complaint-handling process. The Cornish task force found that the Ontario Human Rights Commission is a complex and often closed system: The Task Force found that people were confused and frustrated because they had great difficulty getting clear information about the status of their claim or the Commission’s policies and procedures on a given point. With the current highly centralized Commission system, it often takes months or years, with a claim passing through numerous hands, before a final decision is given rejecting a claim as lacking merit. The claimant never gets to see the decision makers face to face or to hear directly their reasons for rejecting the claim.104

The Cornish Report further observed that parties were not sufficiently informed or kept abreast of the investigation of their complaint, and that they were shut out of the investigation and decision-making processes. The cumulative impression conveyed by the Cornish Report, the 1994 Black Report, the La Forest Report, and others105 is that of cumbersome and opaque bureaucracies with considerable, often definitive influence on complainants. The reports point to the processing of human rights complaints as a significant dimension of clients’ and practitioners’

Public Administration of Human Rights Enforcement in Canada

experiences, and to current local practices as producing a formative experience virtually independent of the harm of human rights violations themselves. These claims will be explored more deeply in Chapter 4. The critiques all argue for radical reforms to human rights enforcement and almost consistently recommend the elimination of the individual complaint-handling functions of the commissions and their replacement with direct access to an adjudicative tribunal. Most advocate state funding of legal representation for complainants, either through a tariff model, specialized legal clinics, or a combination model.106 While this book does not come to any conclusion on the issue of independent legal representation for complainants, it is worth noting that none of these briefs suggest simplifying the complaint process to ensure that complainants can represent themselves.107 The recommendations therefore all propose an enhanced role for lawyers, and propose a shortcut to an adversarial forum. Overall, the expressed concerns were reduced to a single issue, namely, the role of the commission in handling complaints. General dissatisfaction with the commission is the central theme of most of these reform briefs, and this has several implications for the public administration of rights enforcement. Criticism of the operation of the commission and pressure for reform and reinvention constitute a significant part of the complex social, political, and policy environment in which complaints are processed and in which staff and independent human rights advocates do their day-to-day work. Dissatisfaction with and disempowerment through a monopolistic complaint-processing framework are linked to mistrust of the administrative institution, abandonment of complaints, appeals of decisions, and general challenges to the legitimacy of the institution. While these reviews form a significant background for any consideration of human rights enforcement, it is useful to consider what is missing from them. Arguments against the public administration of human rights support arguments in favour of privatization; the privatization of rights enforcement, combined with juridical rather than administrative standards of procedural fairness, coincidentally enhances the role of intermediary legal representatives. The displacement of specialized staff to the benefit of human rights lawyers and advocates is rarely considered or evaluated in this reform literature. Also missing are considerations of other potential consequences associated with the radical transformation of rights enforcement, including the further judicialization of rights, further burdens on the court system, the severance of

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rights enforcement from the public interest, and the often superior legal resources of respondents, which can be used to delay proceedings or to render remedies ineffective. A different view of the public administration of rights enforcement, from the perspective of administrative law jurisprudence, is explored in the next section. If we accept the original premise of positive value in an administrative rationale for discretionary and policy-based decision making and processing of cases at a sub-juridical level, the case law tempers the strident criticism of reformists with a framework for decision making based on current jurisprudential standards of fairness. The Structuring and Accountability of Administrative Decision Making

While reform-based critiques might paint a troubling assessment of the administrative process, bodies such as human rights commissions are established, in large part, in order to “render justice” with fewer formalities and with less associated infrastructure and expense than a courtbased system would require. Administrative law views bureaucratic decision making from a perspective whose central question is: “What are the standards to which we hold administrative decision making that affects the rights, interests, or benefits of individuals?” The predominant standard is that of fairness. Like the principles of fundamental justice, the body of jurisprudence that has developed around statutory decision making invokes the concept of fairness entrenched in the principles governing our legal system. It has been held that “there is a general right to procedural fairness, autonomous of the operation of any statute.”108 From an administrative law perspective, the obligation to “accord procedural decencies”109 has considerable force, with the sense that “hearing all the evidence and listening to all of the various perspectives on a question will produce better and fairer outcomes.” In the absence of explicit legislative exclusion, procedural fairness is “a transcendent norm that applies to a broad range of governmental decision-making.”110 Courts must respect the choice of procedures made by the agency, but in Baker v. Canada (Minister of Citizenship and Immigration),111 the Supreme Court of Canada articulated the content of the duty of fairness required of administrative decision makers: The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting

Public Administration of Human Rights Enforcement in Canada

their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

Actions of a statutory body such as a human rights commission may be reviewed by a judge for error, but only on an application for judicial review or a motion to quash the appointment of a board of inquiry. The object of administrative independence is to achieve a balance between predictability, fairness to the parties, and efficiency.112 A consideration of case processing from the administrative law jurisprudence thus provides a very different perspective from that found in the reform advocacy literature reviewed in the previous section. There is a considerable body of human rights tribunal decisions to the effect that, in the absence of allegations of abuse of process, bias, bad faith, or delay, a human rights board has no business reviewing the way that a human rights commission has conducted itself in investigating complaints. The commission must satisfy itself as to its jurisdiction. In addition, while a board of inquiry may be required to assess the impact of the commission’s handling of the case on the fairness of the proceeding, it has no supervisory jurisdiction over the commission.113 For a board to scrutinize the conduct of the commission on the basis of fairness, a party must demonstrate that the commission’s handling of the case was so prejudicial that it affected the fairness of the hearing itself. The question is not whether the investigation itself was fair but whether its demonstrated unfairness will affect the fairness of the hearing.114 Like the principles of natural justice, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.115 The old prerogative writ of mandamus was originally used by the King’s Court to order a court or administrative body to do its duty, but could potentially be used on occasions where the law had no specific remedy but where there ought to be one, where defects were recognized in processes of administering justice, and in particular where procedural delay without adequate explanation prejudices the rights of individuals. This type of administrative recalcitrance amounts to an abuse of process independent of whether a fair hearing can follow.116 A board of inquiry has the power to stay or dismiss a proceeding because of abuse of process by any party, including the commission that has carriage of the complaint. Abuse of process may be found in improper conduct, either in litigation or at the investigation stage of a proceeding.117 Abuse of process may also

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be constituted by delay, but it has to be such inordinate delay that it causes actual substantial prejudice that brings the human rights system into disrepute.118 The commission itself may also be subject to claims alleging bad faith based on the manner in which it conducted an investigation. To establish bad faith, however, there must be evidence of ulterior or sinister motive. It goes far beyond an allegation of neglect or dereliction of duty to imply a dishonest or improper purpose.119 As this discussion demonstrates, non-statutory administrative processes by and large fall below the radar of administrative law decisions. The doctrine of procedural fairness arises from the inherent supervisory jurisdiction of the courts, whereas abuse-of-process jurisprudence flows from applications of the old equity writs applying for intervention in the decision-making processes of tribunals. Neither of these points clearly to court of tribunal jurisdiction over administrative processes. Reviewability is generally restricted to a consideration of whether the rules were followed. Thus, administrative law advances the view that a commission is its own master with regard to policy making and implementation in practice. In this respect, administrative law is bound to provide a limited and distorted view because, although acknowledging their existence, it has little occasion to comment on the political and social constraints within which the agency conducts itself. The relative paucity of such discussions points to the dominant assumption reflected in case law that, in the absence of mishandling by a commission, or abuse of process by a party, complaint processing lies entirely within the discretion of the commission itself. We are left with a sense that intake, investigation, and settlement initiatives taken within the administrative regime might be conducted in an “in-the-trenches” fashion. There is little indication in the case law that mechanisms such as guidelines, directives, and memoranda exist to structure and implement the statutory mandate and modify practices in accordance with judicial rulings. In the very few cases that a commission sends to a board of inquiry, the absence of discussion leaves the impression that there is an administrative void in the period between complaint and recommendation of the board. The social and operational contexts in which complaints are constructed and investigations conducted are absent from the narratives comprising the case law. With an average of only 4 percent of cases annually being recommended to a board of inquiry, it is readily arguable that these cases represent a distorted sample. They probably reflect those most resistant to settlement between the parties, cases hinging on the credibility of

Public Administration of Human Rights Enforcement in Canada

key witnesses, those viewed by the commission as being relatively important to the public interest, and/or those that are most complex. It is doubtful that they are a representative selection of routine cases. Long before the very few are recommended to a board of inquiry for disposition, the roles of commission staff and independently retained lawyers in shaping complaints in conformity with the Human Rights Code, exercising discretion about complaint viability, and mediating complainants’ experiences with the administrative complex are crucial but virtually invisible. The following chapters aim to make the roles of these state agents and intermediaries explicit. Conclusion

The history of anti-discrimination legislation and enforcement in Ontario illustrates the importance of the public administration of human rights. The government showed itself to be receptive to undertaking a leadership role in developing rights protections when the judiciary would not. In addition, the public administration of human rights blends, but not without difficulty, the principles of public access, expertise, conciliation, fairness, and the upholding of the public interest. While the case law indicates that public administration has not impeded the development of a jurisprudence of procedural fairness in human rights practice, it is largely silent about regular administrative practices. Other than the occasional censure, there is little indication of a dialogue among the judiciary, human rights boards of inquiry, and senior officials as to the methods of implementing their statutory authority. Recent studies have examined possibilities for radical reform of the existing commission/tribunal structure, including elimination of the screening and investigative functions of the commission. Community councils have been suggested, along with alternative structural roles for equality advocacy groups. The idea of individuals initiating complaints independently of the commission is often touted as a solution to gatekeeping, administrative delays, incompetent investigations, and general paternalism. Observers have looked at the establishment of a permanent tribunal as a vehicle for improved service delivery, finding this option either hopeful120 or ineffective121 in meeting the goal of redressing individual complaints. The impacts of funding restraints and the rise of a business-oriented discourse122 of governance have been evaluated, with observers finding no correlation between funding and reputation or between funding and efficiency, as measured by reduction in case closure times. While the need to combat systemic discrimination is uniformly recognized, there is little discussion of how commissions

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might manage the substantial investments in time and money associated with the investigation, research, and redress necessary to pursue such cases. There are thus revealed palpable tensions in human rights enforcement between the ideal and the real, as evidenced by the rise of rights consciousness on the one hand and state program delivery on the other, and between formalism and informalism, as illustrated by the rise in procedural justice guarantees on the one hand and the emphasis on conciliatory approaches on the other. There are conflicts between civil servants’ values and lawyers’ values.123 While administrators must balance fairness, efficiency, transparency, and the public interest, and are granted the discretion to define their own policy frameworks to achieve this balancing act, lawyers are concerned with the aggressive pursuit of their clients’ interests, and so favour reviewable decision making and the minimization of discretion. There is also a trend towards the legalization and judicialization of rights enforcement, manifested in interpretive convergence between human rights statutes and Charter norms. Some of these difficulties are examined in the recent reviews and elsewhere, but many of these critiques call for the elimination of the role of the commissions in gatekeeping, investigating, and carriage of individual complaints. It is not self-evident how substituting a cadre of independent legal specialists for a comprehensive agency model will improve on the existing approach, however beleaguered, nor is it evident that governments are receptive to the idea of sponsoring legal representation for complainants. The sole model of the latter is found in BC, where an independently contracted human rights clinic provides information, education, and intake but cannot initiate complaints or resolve disputes on its own. At this time, the clinic represents no more than about half of human rights complainants in the province.124 The longer-term effects of uncoupling state development of human rights policies with case management remain unknowable. How do these tensions play out in the routine processing of cases? How are different ideas about human rights implemented in daily practice? What is missing from this timely debate is an understanding of how human rights claims are constituted by administrative and professional policies and practices. An exploration of the roles of different intermediary agents, both inside and outside the commission, will fill an important gap in our knowledge of the routine processing of complaints.

2 The Roles of Frontline Staff and Independent Lawyers in the Public Administration of Human Rights Enforcement

How does the administrative complex shape the implementation of human rights? This chapter explores the current institutional context for domestic human rights administration through an examination of policy documents and through the perspectives of frontline staff and professional intermediaries. As discussed in Chapter 1, many factors have shaped modern provincial human rights enforcement; foremost among them are a historic expansion of protected grounds, expansive interpretations of equality and discrimination in leading case decisions, a growth in emphasis on administrative fairness, and pressures to reform. As was also noted, the Ontario Human Rights Commission (OHRC), like with most other such commissions only more so, is forced because of sheer volume to devote the bulk of its resources to individual complaint processing. The Commission is subject both to legislative pressures to be more efficient and to human rights advocates’ criticisms and their efforts to achieve wide-ranging reforms. These factors shape the environment in which the administrative structure responds to complaints and fulfills its other organizational mandates. As the Commission enters its fifth decade, it appears to have recreated itself in accordance with the spirit of the time. Its public face is responsive, its corporate face is lean, and its face as an employer is stern but fair. Policy, language, and perception reveal how aspirational human rights goals may be displaced by operational considerations. Work is rationalized into tasks, quantified, subjected to quality assurance, and tracked for time-sensitivity, with negative individual consequences implied for those whose work does not measure up. Measuring up has to some extent been privatized, as employees become responsible for “selflearning.” The exhortation to do more with less trickles down through the organization, creating stresses in its wake.

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The ascendancy of operationalism is the context in which the highly outcome-focused work expectations experienced by frontline staff have developed. Frontline staff must understand, manage, and implement these operational policy choices, while also playing a crucial role in screening, mediating, and managing interactions between the public and the agency. Staff members juggle their own varying degrees of interpretive discretion, their human rights ideals, their institutional aspirations, and their day-to-day interactions with the public. Through staff accounts of their interactions with the public and of the institutional environment in which they do their work, we can see how policies are translated into practice. Human rights lawyers, whether salaried or in private practice, must construct a professional role for themselves as participants in a complaintprocessing regime that does not anticipate or easily accommodate such participation. These professional intermediaries construe their practice norms in part by asserting, justifying, and validating their indispensable role in representing human rights complainants. While the institutional context is obviously significant to their work, these lawyers also operate within a practice community that has its own ideological analysis of vulnerable clients and a distinctive common goal of social change through challenge and reform of human rights enforcement. Human rights practitioners’ interpretations of their work provide a fascinating view of the multiple dimensions of their professional practice. The Rise of System Imperatives in Policy Documents

In the five years between 1987 and 1992, the OHRC had five different chief commissioners and executive directors, conducted four operational reviews, experienced both internal and external organizational restructuring, changed its ministerial reporting relationship of twenty-six years from the Minister of Labour to the Minister of Citizenship, and delivered official responses to public hearings of the Standing Committee on Government Agencies (1990) and the Ontario Human Rights Code Review Task Force (1992).1 Because Ontario Premier Bob Rae’s victory in the 1990 election was unexpected, the New Democratic Party had no policy goals or governing agenda upon coming to power. It soon presided, however, over a major restructuring and downsizing of the Ontario economy and public service during a difficult recessionary period.2 The OHRC was not the only victim of this radical shift in provincial governance. The message was clear: government agencies had to adopt a leaner, more businesslike approach to service delivery that would have

The Roles of Frontline Staff and Independent Lawyers

to be reconciled with their statutory and historical mandates. This difficult project can be traced, chronologically and thematically, through an examination of internal Commission documents. These reports and policy statements depict, in microcosm, the essential institutional dilemma of the Commission itself. It must balance the administrative values of efficiency, effectiveness, transparency, and accountability against the norms and standards associated with the unique purview of a human rights agency: a heightened sensitivity to fairness, inclusivity, and collaborative resolutions. Since the early 1990s, this balancing act has had to occur in a “leaner, meaner” political climate, where the very existence of an independent public body for rights enforcement has been called into question. These documents show an agency struggling to bring its complaint-handling practices into conformity with new expectations and with a new ideological discourse that favoured rational systems. Over the course of the 1990s, the Commission experimented with various approaches to restructuring. Staff units, functions, and discretionary areas were transferred, consolidated, and eliminated. New work systems were introduced, with performance increasingly linked to adherence to “production goals.” Changes were also evident in policy language: for example, operational agendas and service delivery of a human rights mandate became synonymous. These policy documents and directives reflected the new institutional environment in which human rights were enforced in Ontario. In 1991, as part of a special Cabinet initiative to relieve the Commission of a mounting backlog and to normalize and strengthen its ongoing functions, the Commission struck an Organizational Health and Effectiveness Committee (OHEC), which reported in January 1993.3 Prepared at the height of this tumultuous period between 1987 and 1992, with the Commission operating under an acting chief commissioner, and with a 30 percent increase in case openings,4 the Committee’s report (“OHEC Report”) is a fascinating snapshot drawn from workplace surveys and focused discussion groups and depicting a period of rapid organizational restructuring through its social impact on the bureaucracy’s workforce. The report reveals an organization in the throes of trying to reinvent itself in a political climate that required state agencies to make an enormous ideological shift from conceptions of a liberal social welfare state to those of a neoliberal corporate state. The “OHEC Report” documents that staff were beleaguered by conflicting expectations and workload priorities. One staff member wrote:

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“I am continually frustrated by the conflict between the case management goals and the realities of my job, by the increasing demands placed on me as a human resource, and the limited and diminishing tools available for me to do that job well.”5 Staff wanted to see clear organizational goals, clearly established job descriptions and responsibilities, ongoing training, and consistent performance evaluation. A great deal of survey commentary centred on a sense of the social importance of the Commission’s work. Despite its new-age language,6 however, the “OHEC Report” admonishes that aspirations towards excessive staff collegiality, for example, were short-sighted and unrealistic: Our expectations of the organization are unreasonably high in a climate of severe financial restraint and political sensitivity, recognizing that we are just one part of a broader governmental agenda. Also, we seem to expect that everyone will be consulted before any significant decisions are made, and our views incorporated into the decision in every case. We must consider how much consultation and reflection of individual opinion is realistic in an effective organization.7

What does this vacillation between organizational goals and a humanistic work culture tell us? It may simply reflect staff alienation from organizational objectives that have been rendered incoherent through rapid turnover of senior management and extensive external review and criticism. At the least, it indicates a troubled workforce, struggling with the discrepancies between a vision of idealized human rights implementation and the demands of producing measurable objectives. By the autumn of 1993, the Commission had a new Chief Commissioner in Rosemary Brown, and top-down initiatives were introduced to improve enforcement procedures.8 Although the government had yet to respond to the 1992 Cornish Report,9 the Commission had already begun to initiate changes in response to criticism that its enforcement framework was dilatory, inconsistent, and not sufficiently service-oriented. A further shift to a business-model perspective is signalled in the language of the “Non-Legislative Options for Improving Enforcement Procedures at the Ontario Human Rights Commission”10 (“Enforcement Options”). References to organizational objectives have shifted from “empowerment” and “equality-seeking groups,”11 “healing,” “vision,” “group synergy,” “transformation,”12 “quality,” and “accountability,”13 to “service delivery,” “doing business,” “scarce resources,” and “customer confidence.” The document asserts: “Given that resources are limited, the Commission has decided to adopt a strategic approach to the enforcement of

The Roles of Frontline Staff and Independent Lawyers

its present and future caseload.” Case processing was to be weighted based on the complexity of a case and time lines allotted for each segment of processing. Time frames would now be monitored through a central database: “When the ‘date assigned’ to the investigating officer is entered, the computer program will automatically enter future dates for each of the stages of the investigation.” If the database report shows that a date has passed without completion of the next deadline, “the matter will become a performance issue between the Manager and the officer.”14 A change in the language and implementation of time-monitoring techniques is accompanied by suggestions to use the Human Rights Code, especially ss. 34(1)(a) and 36, with more rigour to reduce the caseload.15 The language of the policy sent a strong message to staff that s. 34 should be used as a gatekeeping device. Following a review of case management practices, and as a measure introduced to improve “efficiency, effectiveness and fairness,” the Commission explicitly decided in May 1993 to apply s. 34 “more rigorously.”16 The provincial Standing Committee on Government Agencies reiterated this emphasis in February 1994. The impact of this more rigorous use of s. 34 is difficult to trace, although not difficult to predict. The 1997-98 OHRC Annual Report contains a table showing complaint dispositions for the years 1994-98. From these figures, it is possible to calculate the percentage of complaints “not dealt with” after the s. 34 directives; it was between 22 and 27 percent.17 The 1997-98 Annual Report emphasizes that fully one-half of cases opened involved a s. 34 request, predominantly initiated by respondents. The companion document to the “Enforcement Options” report is titled “Development and Implementation of Production Assurance Strategies.”18 It reflects the difficult provincial political climate in which the Commission was working at that time (1993),19 and expresses the fear that failure to implement firm production goals (i.e., case closings) would result in loss of organizational autonomy.20 The tone is overwhelmingly one of besieged hostility. In three places within two pages, the document threatens that “non-producers” among staff would be “weeded out.” Indeed, between May 1992 and April 1997, the Commission staff complement diminished from 241 to 125.21 This document makes clear that despite other functions, such as public education and policy development, “production at the Commission is judged almost solely by the number of cases closed.”22 It notes that other areas of work, such as committee work, staff meetings, training other staff, and attending boards of inquiry, were not systematically tracked; consequently, these other aspects of human rights officers’ work were systematically devalued.

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In 1994, the OHRC moved into a period of restructuring and centralization. The recently imposed operational values became smoothly consolidated into a new ideological stance. The OHRC “Restructuring Guidelines” of 1994 observed that “these efforts can be seen as part of the streamlining occurring throughout the Ontario Public Service, and are designed to provide quality customer service within a changing environment of limited resources and increasing demands.”23 Downsizing and consolidation continued throughout the 1990s. At the beginning of 1997, four out of seven provincial branch offices were closed. Effective that May, all inquiry and intake services for the province were provided through the Toronto office. Cases were coordinated at head office, and a new computer-based case management system was implemented. A mediation program for the resolution of complaints was also introduced. As analysis of these policy documents reveals, the swing towards an operational business model is effected through an ideological shift featuring language of the marketplace and economics, by breaking down work into measurable components (with potential for staff discipline if time frames are not met) and by interpreting statutory authority to strategically control caseload based on new, more limited criteria. Image management, as traced through shifting policy language, integrates a business efficiency model with better “service delivery” of the Commission’s human rights mandate. Accessibility, transparency, and accountability are collapsed into an efficient and effective “service-delivery system.”24 Similarly, staff concerns for clearer direction, information sharing, consultation processes, and more decision-making power are transposed, through the application of time and performance management systems, into boundaried, closely supervised, and quantifiable job responsibilities. The caseload is taken control of through more rigorous gatekeeping and outcome-focused staff supervision. Work is detached from the overall advancement of human rights. It is important to note, however inexorable though they may appear, that these operational decisions to rationalize service delivery are not an inevitable outcome of scarce institutional resources but the result of a series of policy choices. They are political decisions about the way that the law will be administered. Moreover, there is a growing disconnect between ideal and implementation, increasingly premised on the operational logic of structural scarcity, centralization, technicization, and system rationality. We turn next to a detailed chronicle of the stages of complaint processing and then to the perspective of frontline staff on the environmental

The Roles of Frontline Staff and Independent Lawyers

conditions of their work. Inquiry and intake staff have become the primary gatekeepers, who must mediate the key interface between a diverse public and these demanding operational expectations. Chronicle of a Complaint

It is the function, among others, of the Ontario Human Rights Commission, to inquire into, investigate, and take appropriate action on incidents based on a prohibited ground of discrimination leading to tension or conflict. Anyone may file a complaint under the Ontario Human Rights Code if they believe that their human rights under the Code have been infringed.25 The Commission’s role is limited to those incidents based on enumerated grounds in specified social areas,26 and the Commission has the discretion to decide not to deal with a complaint. The Commission does not represent the complainant; it represents the public interest in eradicating discrimination. The Commission reports annually to the Legislative Assembly of Ontario through the Minister of Citizenship and to the Senate Standing Committee on Human Rights. Inquiry and Intake Services

Inquiry Services Representatives are normally a claimant’s first contact with the Commission. Complainants who contact the Commission speak to a member of the inquiry staff. All inquiries and intake work (public inquiries, intake services, and complaint-drafting packages) from across the province are handled centrally by the Mediation Office of the Greater Toronto Region. Investigations are handled by the regional office covering the respondent’s location or, if it differs, where the complaint originated. Inquiry Services Representatives perform a powerful gatekeeping and screening function. They have the first institutional discretion to decide that an inquiry does not qualify as a complaint because no ground or social area included under the Code has been identified.27 In this case, they may send a “Draft Your Own Complaint” package to a person. An intake package may also be sent to individuals if they “insist on filing despite Commission staff’s assessment that the matter is not one which the Commission could deal with.”28 Accompanying the intake package is a letter stating that if the completed form is not returned to the Commission within twenty-one days, the Commission “will assume that the person is no longer interested in pursuing the complaint and the file will be closed.”29 This arbitrary deadline does not preclude the later filing of a complaint, but critics have noted that “whether intended or

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not, the effect of the Commission’s action is to discourage the filing of complaints.”30 Filing a Complaint

“Filing” a complaint is not at all clear-cut. A complainant might assume that one is “filing” a complaint when completing and returning an Intake Questionnaire, but the complaint is not “filed” until after an Intake Officer reviews the Intake Questionnaire and “conduct[s] a thorough interview with the complainant to obtain all information necessary to draft a complaint.”31 The Intake Officer then “guide[s] the complainant in drafting a legally sound complaint.”32 “A complaint is considered filed with the Commission ... on the date of which the signed complaint form is received by the Commission.”33 The Commission does not have exclusive jurisdiction over the formulation of a written complaint.34 A complaint may also be drafted by an individual, or a complainant’s “representative”; if it complies with the Commission’s drafting standards and legal requirements, it can be registered and served. Complaints by complainants who insist on filing when advised that the complaint is not one that the Commission can deal with will be served on the respondent “together with the Commission’s report recommending dismissal under S. 34.”35 Section 34 of the Human Rights Code

After the Intake Questionnaire has been received, the Intake Officer’s first task is to assess whether a s. 34 application is appropriate. Section 34 deals with the exercise of discretion not to deal with a complaint where it appears to the Commission that the complaint is more appropriately dealt with under another act, is outside the jurisdiction of the Commission, or is based on facts that occurred more that six months before filing, or that the complaint is trivial, frivolous, vexatious, or made in bad faith.36 While Inquiry Services Representatives are instructed to determine jurisdiction, Intake Officers also flag potential s. 34 case dismissals, and the file is turned over to a Mediation Officer, who is expected to make the s. 34 case analysis. The Code explicitly states that, in the legislative provision, only the Commissioners can exercise the discretion to decline to deal with a complaint. The emphasis on screening out s. 34 cases must be understood in the context that, “[s]ubject to section 34, the Commission shall investigate a complaint.”37 If a complainant disagrees with the “not deal with” decision, he or she has fifteen days from the mail-out date to request a reconsideration.

The Roles of Frontline Staff and Independent Lawyers

A reconsideration request will be entertained on the basis of “material fact” or an allegation of a procedural or legal error.38 The reconsideration and reporting of the reconsideration case analysis and recommendation are conducted by an investigative officer other than the one involved in the initial investigation. Classifying Complaints

Once an Intake Questionnaire has been submitted by a complainant, and an interview with the complainant has been conducted by an Intake Officer, Regional Managers must prepare, for every case, an assessment that recommends the most appropriate case management approach.39 At this point, cases are streamed to either a Mediation Officer to prepare a s. 34 analysis or conduct a mediation meeting, or an Investigation Officer.40 Cases are classified and assigned for responses and processing by the Commission based on the following five categories: A. Cases identified as priority handling cases: The Priority Handling Procedure (PHP) sets out criteria for designating cases out of the normal chronological queue. These criteria include those cases where the complainant has been diagnosed with a terminal illness or HIV/ AIDS; the respondent is likely to leave the jurisdiction; there is a written offer of settlement; delay will result in demonstrable harm or risk; there is a broad systemic impact related to the case; or the case has been targeted for strategic enforcement. B. Section 34 cases. C. Limited investigation/abandoned cases: This category includes those cases where mediation has been unsuccessful and a limited number of witnesses should be interviewed; the complainant’s allegations have been refuted by the respondent; or the complainant has abandoned his or her complaint. D. Cases where evidence is not disputed: These are cases where a violation of the Code is indicated and the case is assigned to mediation; cases where mediation has been successful and terms of settlement agreed to by the parties; and cases where mediation has not succeeded so the file is placed for expeditious investigation. E. Complex and systemic cases: Cases can be termed complex for a variety of reasons. The OHRC classifies complex cases as those that raise policy, legal and systemic issues; are initiated by the Commission

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itself to eliminate discriminatory barriers to equality; indicate multiple complaints against the same respondent; or require the interviewing of five to ten or more witnesses.41 Mediation

The Commission’s Enforcement Procedures Manual presents mediation as the preferred approach for parties to resolve complaints. The direct advantage to complainants is that they “may gain early access to a remedy that may not be available with the passage of time.” The chief advantage to respondents is the limiting of potential liability.42 While the Manual asserts that “the Mediator in interest-based mediation does not have an interest in the outcome,”43 clearly the Commission is at minimum obligated to represent the public interest in the disposition of complaints. The Manual addresses the Commission’s role in representing the public interest in complaint settlements, but is notably opaque in stating what the public interest is.44 The Procedures Manual says that a “mediation plan” must be drawn up by a Mediation Officer before meeting with the parties. The plan must be based solely on the complaint and the respondent’s response. From these meagre sources, the Officer must determine and address “whether power imbalances exist, how they will be addressed, the nature of the parties’ relationship, and what mediation approach/strategy will be taken.”45 Investigation and Conciliation

The Enforcement Procedures Manual imposes stern limits regarding “appropriate investigation.” An appropriate investigation is one where a determination can be made that the Code has or has not been violated. The Investigation Officer is instructed to “seek only that amount of evidence needed to make an informed decision as to whether it is more likely than not that a violation of the Code may be found.”46 Once the investigation is complete and its findings have been disclosed to the parties, the Commission may endeavour to effect a settlement by conducting a conciliation. The Commission acknowledges that parties may have different interests in resolving a complaint through settlement “even where there is no agreement that a wrongful action has occurred.”47 The role of the Investigation Officer in the conciliation process is to represent the Commission’s interests, which include the public interest “to seek resolutions that remedy past discriminatory practices and prevent their recurrence,”48 resolutions that comply with legal constraints and Commission policy,49 resolutions based on the evidence

The Roles of Frontline Staff and Independent Lawyers

gathered during the investigation,50 resolutions that do not tend to place the Commission in disrepute,51 and approval of any agreement reached. The Commission’s interests also include disallowing protracted conciliation discussions to “interrupt the orderly flow of cases and the timely processing of complaints.”52 There is no indication in the Manual that the multiple interests of the Commission might be contradictory or unattainable in practice. Withdrawal or Abandonment

The Enforcement Procedures Manual details circumstances under which a complaint may be withdrawn. These include the complainant’s “becom[ing] convinced” that the respondent’s conduct is not prohibited by the Code or that it was due to an honest error and has been corrected, the complainant’s agreement that available evidence does not support the complaint, or the complainant’s not wishing to proceed for personal reasons.53 It is considered an “extraordinary circumstance” for a complainant to state or imply that withdrawal is a result of the Commission’s own handling of the complaint.54 These withdrawals must be referred to the Director, Regional Services and Investigation Branch. Withdrawn complaints are reopened only under extremely limited circumstances, such as evidence of duress or fundamental misapprehension of facts. Information suggesting further discrimination after withdrawal will normally be considered by the Commission as the basis for a new complaint. A case is considered abandoned when a complainant cannot be reached and the complainant makes no contact within fifteen days.55 Authority to Refer or Not Refer to a Board

After the completion of an investigation and attempt at conciliation, a case analysis is prepared and disclosed to the parties. Within twentyone days of the mailing of this case summary, parties may make written submissions about the decision to refer or not, but an oral hearing will not be held.56 The complaint is then submitted (with a recommendation of action) to the Commission for a decision on whether or not to refer it to a Board of Inquiry. This decision is a discretionary one, and the Commission considers “all relevant information.”57 The Enforcement Procedures Manual guides this determination by inviting consideration of whether the respondent has rectified the problem or has offered the complainant “proper redress” for the alleged rights violation.58 Although a decision not to refer a case to a Board of Inquiry effectively terminates a complaint, an application to reconsider based on

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material fact or procedural or legal error may be made within fifteen days of the mail-out of the decision.59 The reconsideration policy flows from the decision in Commercial Union Assurance v. Ontario Human Rights Commission, where the Ontario Court of Appeal stated that such a reconsideration was appropriate when there was an issue as to the integrity of the Tribunal’s process, where factual circumstances have changed or new facts have arisen, or to correct errors and allow for adjustments.60 The Manual clearly distinguishes between “establishing an issue as to the integrity of the process” and “merely criticiz[ing] the Commission, the Code and the government.”61 The Commission does not have authority over the Human Rights Tribunal, but is a party before the Tribunal and has carriage of complaints. The members of the Tribunal are appointed by the Lieutenant Governor in Council. Complainants are cautioned that the Intake Officer does not represent them; similarly, legal counsel for the Commission at a Human Rights Tribunal, while responsible for presenting the case supporting the complaint, also does not represent the complainant’s interests. The Manual observes that the public interest, represented by the Commission, and the complainant’s interest “usually coincide.” When they do not, the complainant is advised to retain independent counsel. The Tribunal may make an order directing compliance with the Code, or it may order restitution. If a complaint is found to be trivial, frivolous, vexatious, or made in bad faith, or has caused undue hardship to the respondent, costs may be awarded against the Commission. Any party may appeal the Tribunal’s decision to the Divisional Court. “Street-Level” Bureaucracies and the Public Administration Literature

Street-level bureaucrats such as Commission inquiry, intake, and investigative staff represent the human face of the law to citizens who approach the agency with the hope of accessing important benefits and sanctions.62 A shared context and common conditions give rise to common patterns of practice among such workers. A small but significant body of public administration literature has examined the implementation of rules and the functioning of bureaucracies from the bottom up. Unlike conventional legal perspectives, which work their way downward through a consideration of the governing legislation, the case law authorities, instances of judicial review of administrative action, and official policy pronouncements, this literature seeks to understand public policy through its application in the routine daily encounters of public service workers.

The Roles of Frontline Staff and Independent Lawyers

This new administrative law scholarship, as some of it has been called (although it is really a sturdy offshoot of the early legal realists who brought social science perspectives to their examination of how “law jobs” get done), focuses on the contexts rather than the legal consequences of administrative decision making. Although some current socio-legal literature utilizes a process approach, the overwhelming tendency in legal research is to assume the normative meanings of legal events. Focusing on legal processes supports the claim that law and policy are ultimately implemented in the day-to-day practices of low-level officials who function at the interface between social relations and legal meaning and who act as gatekeepers to legal systems. It has been observed that it is bureaucrats who mediate between legislators and members of the public by interpreting the application of rules to particular cases ... Thus the bureaucrat who deals with the public is not simply an interstitial node of administrative allocation or of information-transmission who functions in a mechanical fashion, but rather, he is an active contributor to the production of decisions, the application of rule to case.63

This observation reflects the work of a small body of researchers who argue that the mediating or “brokering” aspects of official roles – in particular, how policies are translated into practice – should be a central focus of research. The power of street-level bureaucrats is that they manage the boundary. They are the major source of information to the clients about the bureaucracy and to the bureaucracy about the clients.64 Lipsky asserts that public service work is ambiguous because of conflict between client-centred goals and social engineering goals as well as conflict between client-centred goals and organizational goals, and because the role expectations of frontline workers come from multiple, conflicting reference groups. He notes also that public service goals tend to have an idealized component that makes them difficult to achieve. Given these intrinsic tensions, we can readily see how process management replaces original purposes with or subordinates them to the goal of mass case processing. Lipsky describes the conflict between individual client treatment and routinization and mass processing as the “typical conflict” in street-level bureaucracies.65 This goal ambiguity and displacement is reproduced in the role of the frontline worker. Clients and frontline workers sort the client’s characteristics and approach the client’s problems differently, and not all of a client’s problems can be addressed by a single agency. In a sense, the

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client must become an artifact of the bureaucracy: he or she is both client and raw material.66 Street-level bureaucrats control the structuring of their interactions with clients, and ultimately organize the context of decision making in the individual case. In socially “constructing” clients, street-level bureaucrats must categorize them as “bundles of bureaucratically relevant attributes,” reducing or distancing their ability to respond to clients as whole persons.67 Routine practices further insulate workers from client demands. Lipsky concludes, however, that street-level bureaucrats nevertheless “believe themselves to be doing the best they can under adverse circumstances, and they develop techniques to salvage service and decision-making values within the limits imposed upon them by the structure of the work.”68 Understanding what street-level public servants do and how to evaluate the legitimacy of their choices is also the focus of Vinzant and Crothers’ study called Street-Level Leadership.69 The authors argue that frontline workers are subject to multiple goal-setters and cross-pressures. Examining particularly the work of police officers and social workers, they observe that the work of these street-level public servants is complicated by a wide variety of complex problems that may be simultaneously unpredictable, multi-faceted, intractable, and emotionally laden.70 The legitimacy of their decisions is a common source of contention and challenge. A descriptive and prescriptive model of frontline public service must account for both these multiple pressures and coherent approaches to evaluating the appropriateness of their discretionary choices. Vinzant and Crothers argue that the work of these frontline public servants can be characterized as leadership, embodying the exercise of discretion, the making of difficult choices with significant consequences, and the exercise of power, yet power that is constrained, accountable, and limited. They contend that viewing frontline work as leadership reframes street-level workers as community members who balance community values and legal and organizational constraints. Rather than being mere conduits for public services and policies, frontline workers can thus be characterized as active participants in systems of governance.71 Frontline human rights staff embody both organizational stresses and institutional goals in their struggle to fulfill this multi-faceted and ambiguous role. .

Frontline Human Rights Staff Talk about Their Work

In the course of their interactions with members of the public, frontline staff function in an organizational environment that creates a certain template for their job of informing what social areas and grounds the

The Roles of Frontline Staff and Independent Lawyers

Human Rights Code covers, establishing the threshold jurisdiction for characterizing a complaint as a Code violation, and flagging potential s. 34 case dismissals. The formal institutional culture is a primary influence on how staff construe their roles in the complaint process, but it is not the only one. People are not automatons. Frontline staff manage multiple expectations in their everyday role in implementing human rights. They also bring to their jobs a broader sense of what human rights might mean, their own cultural and social influences, and the individual difficulties, frustrations, or competencies that they encounter in their daily engagement with multiple (often difficult) callers. In interacting with members of the public and interpreting their situation, they determine the outcome of the vast majority of complaints under the Code. This section explores how these frontline staff characterize the social, institutional, and political dimensions of their work, and provides broader insight into the nature of all frontline administrative work, which is to balance the application of rules and human judgment.72 Not surprisingly, staff report that inquiries and intake work is stressful and demanding. Staff must field calls of all types, including those they characterize as “last resort” callers, who have pursued their complaints exhaustively with other government offices or agencies. New grounds of discrimination and protection create uncertainty for intake staff, compounded by a generalized institutional caution until jurisprudence in groundbreaking cases begins to emerge. In addition, dilatory respondents are a source of delay who cannot be forced to adhere to Commission time frames. Interviewees observe that staff reductions, limited resources, and political exigencies all have palpable effects on the context of their work. These organization dimensions flesh out and further complicate the gatekeeping function that staff perform at the threshold of complaint. In terms of sheer volume, inquiry staff represent the human voice of the Commission, having the most contact with members of the general public. Each takes 30 to 35 calls a day, for a total, in 2004-05, of 46,429 calls a year.73 Service representatives are instructed to keep routine inquiries as short as possible, “should not” allow themselves to be pressured into prolonging the interview, and are to spend, on average, not more than ten minutes responding to a routine inquiry.74 A staff member’s comments capture the mélange of typical calls: Well, sometimes I find people think that oh, you’re just a customer service rep. You know what I mean? ... [B]ut I have to be honest with

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you, of all the places I’ve ever worked on the phone before this has to be the worst. It’s mentally very demanding, very demanding ... Because you feel like you’re – the best way for me to put it is I feel like I’m arguing with people all day long. Maybe I’m exaggerating because it’s not every call that’s like that. But the reason is so many people call us with raw emotions and so many people want us to confirm that what’s happening to them is wrong and therefore they have recourse. Very often they’ve called the Labour Board and have been told there’s nothing that can be done. They call the Labour Board – I’m sorry, I’m being bad now using their term, it’s Employment Standards. They call Employment Standards, they get told “Nothing we can do for you, call Human Rights.” ... So, then they call us and they think, wow, now that’s it, it’s a human rights issue. They’re going to be able to help me. And then we tell them no. We get a lot of, “Well the Labour Board told me to call you.” As if they make the decisions. “Well, I’m sorry, but you know, they administer their legislation and we administer ours.” But, no, that’s very frustrating because a lot of people come here with the expectation that we’re the last resort, we can help them and this is it. They’re very disappointed and very often they get angry, they want to know why. Or we get a lot of, “If I was black, you’d help me.” We get a lot of that. A fair bit but completely false. The ground is race and colour. Everyone has a race and everyone has a colour. That’s irrelevant. But we get a few of that. There’s a big assumption that we deal with racial issues only. So because of that the work requires a lot of explanation, a lot of people who don’t [understand] the first time around. You have to find different ways of explaining it. We have to talk to employers too sometimes – some of them are very good. They will make sure to comply. And some of them are practically looking for tips on how to terminate and get away with it. And we can’t do that so ... But, yeah it can be demanding mentally because you’re constantly trying to explain and re-explain and re-explain. And sometimes it’s not easy to clearly show to someone why they don’t have a case or don’t have a strong case.75

Inquiry staff described the stress levels generated by the sheer volume of calls, their diversity, and often their hostility. For example: We do have some challenging clients. We have – I’m dealing with one right now who is just really, he just doesn’t listen. You say something to him it goes through one ear and comes right out the other and he, in the meantime, turns around and will say things to you like “You people

The Roles of Frontline Staff and Independent Lawyers

are all biased there, I’d like to know what the racial makeup of people working there are.” My favourite that I get a lot of times is “You wouldn’t understand what I’m saying because you’re not a black person.” Again, it’s over the phone right? And I know a lot of that is just their anger and for instance the same guy I’m talking about, he’s [says] “Well you don’t know how to do the work. I wish I had a job there, I could do it much better than you.”76

In legal research, there is little, if any, examination of the organizational stresses faced by administrative agents whose mandate is premised on public access.77 From within the organization, frontline staff are faced with pressures to answer calls promptly, to screen calls carefully, to redirect callers to appropriate ministries and agencies, to keep abreast of current policies, to eliminate groundless complaints from further pursuit, to elicit and assess sufficient information for intake staff to draft a complaint, to limit the amount of time spent with individual callers, and to be courteous in the face of verbal demands, challenges, and levels of understanding. Inquiry staff also deal with angry people, mentally unstable people, suspicious people, and those demanding highly specialized information.78 Their work is very exacting. While it is difficult to say how much this differs from other work where government employees must deal with those expressing a complaint in a highvolume environment,79 the volume is compounded by the sense that human rights enjoy or ought to enjoy pre-eminent importance. Discrimination differs from other types of complaints in that at its core, it is a violation of our dignity and sense of self-worth as community members. Furthermore, as an administrative body empowered to address and resolve incidents concerning “near-constitutional” rights violations, Commission decision makers must adhere to a high standard of procedural fairness. Ironically, however, the appeal by citizens to a rights enforcement agency may not be accompanied by an understanding of the precautions associated with a rights-based administrative regime. From their own perspective, frontline staff are often in the difficult position of attempting to distinguish the qualitative difference between discrimination under the Code and the routine indignities of daily living. Many interview subjects expressed the frustration of trying to explain the gap between commonplace understandings and actionable complaints. The gap is compounded with “last resort” callers. While the next chapter further explores the role of frontline staff in the process of “meaning making” with respect to the concept of discrimination under the Code, these examples illustrate the complexity of the work they do

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in managing the gap between lay expectations and their gatekeeping function. For example, one staff member recounted: But people challenge us a lot. They get very upset. They want to argue with us a lot and we get quite a few not so stable people calling in here ... The biggest frustration is having to take a complaint from someone who doesn’t have one. That has to be, that has to be the ultimate on the top list of everyone for sure. For sure ... Because it feels like so much work being generated for nothing. And it’s difficult on yourself as a person as well because you feel sometimes like you’ve been unable to convince them or to see what you see ... And those [unstable callers], it doesn’t matter if you talk until you’re blue in the face, you’ll never ever convince them.80

Another staffer concurs: We have difficult callers who are insistent that their situation is a human rights concern, or callers who don’t know where to turn. Those are difficult calls where they’re just – they’re frustrated with what they’ve been through, and the system, if you want, that they seem to have been juggled from one call to the next, and certainly in some of those cases, many of those cases, I find I’m referring them to someone else, but really it seems to be nothing that we can help them with because their complaints are so broad and against so many – so many agencies or people or issues – that it’s difficult to help them.81

Another source of stress for intake staff is unresponsiveness on the part of respondents, who cannot be compelled to respond to a complaint in a timely way. Complainants, on the other hand, are held to specific time limits in complaint filing, responses, and application for reconsideration. Respondents may make dilatory s. 34 applications. A staff member recounts that timeliness forms the basis for many client complaints about process: [T]he other stage of the process where I had a lot of complaints has to do with how long it takes the respondent to respond to their complaint. Under the Code right now – we don’t have any authority to compel them, like, we can’t force them to respond. There’s no, “You respond in 20 days or that’s it.” There’s no charge or anything. If they decide not to, they decide not to, so ... And because the respondent or

The Roles of Frontline Staff and Independent Lawyers

the respondent’s counsel know that, they have a way of extending the time frame for responding, or requesting – on the date of the deadline, you know, which is 21 days after they’re sent a letter, that date, the response is due, they request two weeks or a month – it’s either a request – or sometimes it’s just a statement, “We’ll have this in on – you know, February 3rd.” And how do you explain to the complainant, when we’ve been telling them in our letters, “Get this back to me in ten days.” How do you explain that?82

Unresponsive respondents may also create a performance issue for intake staff, who are caught between pressures to adhere to their own time frames and the inability to control the timeliness of one of the parties. The changing human rights jurisprudence and policy environment means that, over time, new grounds are covered and interpretations of existing grounds expand. Many inquiry and intake staff cited the implementation of a 2001 OHRC policy on disability as the basis for increased inquiries and complaints; it also required staff to familiarize themselves with a new area of enforcement whose perimeters were not yet established: [A]t the beginning of the year it wasn’t so difficult because we had a certain criteria that we used in establishing or trying to determine handicap under the Human Rights Code, okay? And towards the end of March of 2001, the Commission released a new policy on handicap and it was changed so our thinking is much different to that rigorous sort of criteria that we used when we were determining handicap [previously]. Now it’s much more broad and can be very grey ... What was not a handicap last year at this time, may be considered a handicap under the Human Rights Code today.83

Changing policies also make evaluation of cases more difficult. Uncertainty feeds mistrust of staff competence by callers, making the job of inquiry staff even more difficult. Evolving and indeterminate policy positions make it necessary to delay cases while awaiting resolution of “test” cases. For example, the OHRC Enforcement Procedures Manual states: “The Commission defers making decisions under s. 34 or s. 36 of the Code in respect of the same issue of law raised by other complaints, until a decision has been rendered by the Board of Inquiry. These other complaints are therefore put in abeyance.”84 The consequences of delay

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are concrete: it becomes harder to investigate and compile cases, complainants become frustrated and call the Commission frequently, they lose heart, and backlogs increase. Staff feel this frustration keenly: The time delays, the time frames that it takes for the cases to be resolved – that’s beyond our capabilities to resolve because – I mean, being a high achiever, I know that there is so much I can manage in a day, despite how much I work, and that – the same happens at every level of the Commission, and therefore you really need more manpower to be able to manage more cases.85

Inquiries and Intake is not the only unit where the pressure to handle more clients is borne by staff. Many professional interview subjects made observations about restructuring at the Commission during the 1990s and the consequence for different staff units. One lawyer noted: “It used to be down at the Commission that they had full time investigators and then they basically dumped all of those people and went to a contract basis. And now they have, you know, a couple of full time staff investigators and the rest are all piecemeal and they get paid per case.”86 A staff member added: “You know, we used to have, I think, about 200 staff, and now we have 125. That’s quite a lot departing from an organization. And at the same time ask the organization to reduce the caseload, achieve so many closes per year, and come out ahead.”87 These perceptions reflect a long institutional memory. When staffing statistics are compiled and compared with the staff complement five years earlier, and departmental restructuring is taken into account, no significant differences emerge. What is highlighted, however, is the increase in inquiries, which doubled in the five-year period between 1997 and 2002.88 One staff members proposes that the Commission is a “victim” of its own success: the better a job it does in responding to expansive notions of accommodation, the more cases it will attract: And in fact what’s been happening in inquiries and intake is inquiries is putting through a much larger volume of complaint questionnaires, intake has been able to keep up with that for the most part, and that’s resulting in a wash of complaints over, which ultimately is going to drive the process further along, time-wise, because there’s only so many officers to do the job. Now, what generated that? Well, the change in the policy on accommodations and disabilities has generated that, a sort of broader understanding of some of the other issues around

The Roles of Frontline Staff and Independent Lawyers

transgenderism, you know – all the sorts of things that we’ve been very public about lately in our changes in policy have generated more enthusiasm in the complainant community or individual complainants to participate in our process. Success breeds a bigger backlog, quite frankly, because the resources have gone up at least partly to match that increase in enthusiasm or understanding of the Commission doing a good job, but that’s going to boomerang on us at some point.89

Another staff member associates the pressure of limited resources with the political dictates of administrative decision making: I think it was manageable at some point and we’ve been doing extremely well in the last three years, since ’97, that the Commission was restructured. But there’s so much you can put in a jar and push it and push it and push it and push it and push it, and I think they are pushing way too hard. The [inaudible] is going to go down. The bottom, it’s going to just collapse, and things are not going to be good ... [T]he Ministry just does what the Legislature says. So perhaps the Premier, the government in power – call it whatever you call it – whoever is at the high [inaudible] is expecting way too much in terms of what is possible. I don’t know if there is an agenda for that. I mean, perhaps there is an agenda.90

A lawyer also commented that human rights commissions are given resources according to the contemporary political will: I think, unfortunately, the operational goals of the system have become almost entirely administratively and resource oriented driven. Meaning that the way that commissions in Canada are now structured, regulated, financed and effectively pressured by the executive arm of the government, it is viewed no differently than any other adjudicative process which must be funded. And if the funding becomes over a comfort level given the political goals within that government’s mandate, then that problem has to be contained and something has to be done about it.91

Another lawyer, formerly with the Commission, notes the rise in rightsconsciousness correlated with increased public utilization of the complaints process: I think that one has to understand that at the Human Rights Commission you’re dealing with two gigantic problems. Both of them are

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systemic. One is again, the tremendous frailty of that statute. It is chock full of holes, loopholes, absurdities, class isn’t there, so that the statute itself is a problem. But they’re also tremendously under-resourced and we know that, everybody knows that. So, that’s a nightmare. I mean I actually have some sympathy for the people who work there. How do you navigate that? And at the same time that there is rising rights consciousness, so they’re being inundated, the statute sucks and they don’t have the tools. Well that’s a terrible situation to put yourself in. And I suppose that out of necessity you start to adopt a framework in your own head and collectively that says we better try to find some ways to dump as many of these damn things as we can.92

Differences between lay and official understandings of human rights violations, a sense of entitlement to government services, a complaint “culture,” the appeal of “free” potential legal intervention in one’s troubles, desperation, off-loading by other government offices – for whatever reasons, the Human Rights Commission receives many, many more calls than represent actionable grounds for complaint under the Code. Perhaps, as one interview subject observed, the Commission functions as a containment system for society’s discontents.93 Frontline staff, under rigorous institutional constraints, apply policy, legislation, and jurisprudence to an initial screening of a large number of endlessly variable fact scenarios articulated by lay callers with variable abilities to do so. They must grapple directly with perceptions that they unfairly discourage legitimate complainants. At the same time, they are keenly mindful of their role in sifting through the myriad of experiences proffered as potential human rights issues. Indeed, the variety of client predicaments and characteristics is the very reason that frontline staff are needed!94 Procedures detailing how staff are to screen for Code grounds, how to deal with clients who insist on their entitlement to file a complaint, and how to flag potential s. 34 cases not only serve to rationalize the nature of the work that staff do but also provide a welcome mechanism for sorting through an otherwise overwhelming caseload. Frontline staff generally reflect a professional perspective on their work that dictates the management of multiple expectations with patience and sensitivity. They also understand, however, that they are to screen out cases that do not fall within the narrow agency policy framework. The staff accounts also point to a perception of job stresses linked to stretched institutional resources for dealing with the number of calls

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received. These observations signal that institutional culture has a long memory of the traumas associated with a time period of great uncertainty, negative public scrutiny, and changing expectations. There is a general impression that the series of restructuring moves made in the early to mid-1990s and a sense of political vulnerability continue to influence the ability of staff to do their jobs. The staff accounts also reveal a difficulty associated with navigating between the mandate of the Commission as a publicly accessible agency and its restrictive enforcement policies. Callers insisting on a hearing of their complaint by a state agent (“their day in court”) strain the concept of rights enforcement premised on rigorous interpretations of the agency mandate and reveal a disconnect between public expectations and institutional practices. The Literature on Legal Intermediaries

Legal fora represent a public field where participants come to the law from varying perspectives and in various roles. While law has more general social ramifications in everyday life, it is in the processing, settling, and adjudication of legal matters that we can observe how law is interpreted and applied in its most immediate context, and lawyers play a central role in these processes. Little is known, however, about the role of intermediaries in shaping complaints and disputes. We tend to accept legal events as given. Although we assume, and are not surprised by, the dominance of “legal” understandings of rights and violations, relatively few studies have looked empirically at the process of the construction of legal meaning by professionals and others.95 Implicitly or explicitly, these studies also tell us a great deal about the dynamic and co-existing legal cultures and approaches applicable to different types of “law-work.”96 A significant body of literature employs a “social control” analysis, contending that conclusions or outcomes of legal processes are largely foregone through the imposition of legitimated social power and construction of dependency in “clients,” particularly in the criminal justice area.97 Researchers have tended to focus on criminal justice encounters and the systematic patterns of relationship they engender to reveal how these legal events are authoritatively constructed. They assert that it is not the legal rules that are decisive but often the organizational rules, the informalities and formalities of interaction and deal making to which the accused is least privy, in which the outcome of cases is largely decided. Accused individuals are overwhelmingly dependent and without influence in this “rigorously ordered mechanism for social control.”98

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Not to be overlooked in this equation is the social and professional power of the lawyers themselves to determine and apply the content of legal regulatory frameworks.99 There is a growing body of literature on the professional roles of lawyers. McConville and colleagues assert that British criminal cases are made routine, often in the setting of a lawyer’s office, where their shape is determined by the ideologies and practices of defence lawyers and by the expectations of defendants resulting from their interaction with legal personnel and police.100 They note three theories addressing the routine nature of legal cases. The “professional model” sees lawyers as professional advisors serving the best interests of clients through routine processing of commonplace cases. A second model sees lawyers as “translators” of clients’ objectives into legal discourse. The third perspective, which McConville and colleagues endorse, sees lawyers as able to “manage” clients, through expert knowledge and redefinition of client problems in professional terms to meet practice norms. Solicitors’ clerks, in comparison, do not have to reconcile their approach with ethical practice or the legal components of guilt: “for them practice is the system.”101 Taking as a starting assumption that social interactions are a process of exchange in which participants negotiate shared understandings, Sarat and Felstiner argue that lawyer/client interactions are important not only as a context for the study of law but also as an example of the construction of legal meanings under conditions of unequal power, as a site for the study of negotiation, and for what they reveal about the working ideology of lawyers’ offices.102 Their work identifies lawyer/ client interactions as an important site of law as a social practice. They consider various strategies deployed by divorce lawyers in the contest over mutually acceptable goals, the use of “law talk,” and tactical enactments of power, and arrive at a theoretical explanation of legal meaning as contested, contradictory, and fragile. Also studying divorce lawyers, Mather and colleagues103 characterize their research as focusing on the contexts in which discretionary choices are made in divorce law practice. Their study investigates the nature of communities of professional practice, the boundaries of expertise, the meaning of advocacy, and control over clients from the perspective of a variety of representative “types” of legal practitioners. They contend that the specialist workgroup imposes a normative dimension on the work of divorce law practice. While their work is situated in debates about professionalism and changing institutional frameworks for divorce, it is a useful referent to this project in its consideration of the interplay

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between a shared local legal culture and professional self-identity in establishing the structure of individual practice. They argue that the interaction between self-identity and the collegial control exerted through communities of practice serves as a reference point in helping lawyers resolve uncertainties about day-to-day discretionary decision making. These insights prove useful again when we examine the roles of public interest human rights advocates in later chapters. The Practice Community of the Complainant Bar

There is an extensive body of literature on the sociology of professions, and the legal profession has been the subject of considerable study and analysis.104 Little attention has been directed, however, to the social and institutional contexts in which the professional consciousness of lawyers is embedded. While lawyers think of themselves as autonomous professionals, this ideology has been found to have little bearing on their practice,105 which is shaped by the institutions with which they engage, their employment structure and status, and the clientele they service, among other determinants. Legal sociologists have observed the community of interests common to personnel in legal organizations such as criminal courts.106 Similarly, large-firm lawyers indicate that their principal concern is with their own long-term interests. They strongly resist fundamental shifts in government policy that might substantially alter current arrangements.107 In contrast, critical scholars and practitioners have challenged the imposition of authoritative conceptions of legal relations on the lived experiences of disempowered clients. This scholarship and practice seeks to use law and legal discourse for moral and political ends, to convey subjective meanings, and to achieve empowerment for clients whose perspectives and needs do not fit neatly into traditional legal doctrine.108 The practitioners of cause lawyering in its various forms are marked by their sense of commitment to particular ideals that frequently lead to challenges to the political, social, and economic status quo.109 Menkel-Meadow defines cause or social-justice lawyering as “activity that seeks to use law-related means or seeks to change laws or regulations to achieve greater social justice – both for particular individuals ... and for disadvantaged groups.”110 For cause lawyers, the law is explicitly an arena of struggle where the open-textured nature of legal discourse provides opportunities for utilization, resistance, and transformational aspirations.111 Lawyers specializing in representing human rights complainants have surprisingly consistent perspectives on the role of legal advocates in a

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complaint process that, by its conception and organization, does not require complainants to retain independent legal representation. Consistent with the literature on professionalism, they form a “community of practice,” that is, a group of practitioners with common expectations who interact to create a shared, local, legal culture that shapes their day-to-day legal practice.112 While all lawyers defer to the norms and obligations of the legal professions as a whole, other “layers of collegial control,”113 as well as a similar reform perspective, both constrain and enable the common understandings of human rights lawyers about the nature of their work of representing clients. Although their material conditions of work vary from the glasstowered Bay Street offices of downtown Toronto to private practices in quiet residential neighbourhoods to struggling inner-city community agencies, the work of all these practitioners involves engaging with a highly centralized and systematic administrative bureaucracy. The grounds and social areas where human rights violations will be considered actionable under the Code are defined by statute. The processes for accepting a complaint, investigating it, and urging informal dispute resolution are matters of internal Commission policy. Recommending a Board of Inquiry is solely at the discretion of the Commission. Circumventing the exclusivity of the existing administrative regime by seeking a judicial hearing is precluded by case law.114 Thus, for independent human rights practitioners, autonomy and the ability to control one’s own work, both of which are self-defining qualities of professionalism, are continually frustrated. How these lawyers, and their special interest advocacy colleagues (discussed below), define and conduct their work with complainants and their interactions with the Human Rights Commission is the focus of this section. Although these intermediaries might, for some purposes, be distinguished by the nature of their practices – that is, whether they are in private practice or on salary with a legal aid office – they are discussed here as a unified group. There are many overlaps among members of the group, including those who are former human rights officers with the Commission, legal counsel to the Commission, legal counsel to the Board of Inquiry, legal aid practitioners who are now in a private firm, and so on. These overlaps, and their common reform agenda, make the intermediaries more unified than disparate.115 These intermediaries form a practice community of the human rights complainant bar, which exerts an unexpected influence on, and is an unacknowledged dimension of, the complaint process. The latter decades of the twentieth century saw a huge rise in the number of special interest advocacy groups with an agenda of demands

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against the state. The use of rights discourse (and, in Canadian terms, equality discourse) has been remarkably successful for such groups, whose challenges to institutionalized inequity may themselves be funded by the state.116 At this writing, for example, there are seventy-eight specialty legal clinics in Ontario focusing on legal issues facing a particular community, including violations under the Human Rights Code.117 Along with their public sector colleagues, such as Ombudsman Ontario, the Ontario Ministry of Labour, and the City of Toronto’s Access and Equity Unit; recipients of public educational workshops such as immigrant assistance associations; and the business sector, including, for example, the Ontario Human Resources Professionals Association, this special interest public forms the human rights community. These groups constitute the cultural environment in which the Commission conducts its work. In practice, however, it is most often the lawyers who represent community groups who mediate the relationship between these groups and the Commission. Although community groups have historically played an important role in documenting and screening cases and bringing them to the attention of the Commission, their role in the complaint process has never been formalized. That the organization of the complaint process does not, thus far, envision independent legal representation means that human rights legal practitioners must continually assert their own professional role in the process. They do this by exhibiting insider and expert knowledge, by adopting a partisan and adversarial stance towards the Commission, and by offering the ability to obtain an oral adjudicative hearing for their clients in individual cases. They advise clients on their own assessment of the merits of cases, and attempt to control the complaint process by “managing” the Commission. At the same time, a “realistic” focus on the intransigence of the administrative process enables lawyers to distance themselves from a disappointing outcome. Finally, but significantly, these lawyers seek to advance a reform agenda, which they pursue both through representation of individual clients, in challenges to Commission practices such as non-disclosure of investigation findings,118 and through broader involvement in political activities such as submissions of briefs to the legislative committees and commissions. Their cause is constructed in part through the process of legal representation.119 They share a common commitment to advocacy of a particular ideal of human rights enforcement that would lead to dramatic reform of the existing complaint system. Lawyers create the perceived need for their intervention by describing the unrepresented pursuit of a complaint in traumatic terms. They

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describe their role as, in large part, one of protecting or insulating clients from a devastating engagement with the “system”: [T]he system and the way in which these cases proceed, the system is extremely damaging to complainants in most cases. And as the lawyer for the clients one part of my role is to sort of try to act as a buffer and to insulate the client from the full damage that is caused if they were on their own trying to deal with an agency like the Ontario Human Rights Commission and the damage that gets caused to them.120

This lawyer was quite outspoken in also trying to “manage” the Commission to achieve certain goals: And I try to manage the Commission in terms of keeping them on the sidelines to the greatest extent in terms of interfering with what I’m trying to achieve. And to the extent that they actually do anything, try to make sure that the outcomes of any work that they’re doing, for example, the mediation process or investigation process, is to my client’s advantage to the greatest extent possible.121

Lawyers frequently commented negatively about the judgment of Commission inquiry staff in case screening. They assert that people need an independent legal representative because of OHRC staff incompetence. While the system is intended to be accessed by persons independently (and without fee), the clash among differing conceptions of human rights and the spectre of inappropriate screening of cases create a rationale for professional accroachment of human rights representation. This interview subject makes the argument that intermediaries are necessary as administrative monitors: It’s really unfortunate – the system was designed to permit a complainant to go through the system without legal representation and obtain some sort of remedy for their experience of discrimination. That’s how it was designed. But in practice, it has become a system in which complainants who aren’t represented sometimes don’t get as far as people who are represented. And it can happen ... even at the Intake level. An example might be that a complainant phones up the Commission and says, “Look, it’s my employer. He’s got it in for me. And I can’t take it anymore. He’s harassing me.” The Intake worker might say, “Look, personal harassment is not covered by the Human Rights Code. It’s no use talking to us. What we’re concerned about is discrimination. You have

The Roles of Frontline Staff and Independent Lawyers

a right to file a complaint but I want you to know that personal harassment is not something that we can help you with.” And the complainant might hang up at that point and think, “I’ve got nowhere to go.” Whereas it might be that the harassment was based upon a prohibited ground of discrimination and the Intake worker didn’t solicit that information or might have somehow led the complainant to think that there would be no protection afforded by the Human Rights Code for them. That’s just an example of how it could happen that a complainant might get nowhere with the Human Rights Commission because of some misunderstanding right at the beginning for which the Commission is responsible.122

This account, which echoes strikingly one told earlier by a frontline staff member,123 illustrates how staff and legal intermediaries may, because of their different perspectives, attach different meanings to similar events. While staff members feel that they are adhering to Code criteria in their telephone interactions with potential complainants, lawyers suspect that they are using an overly narrow assessment of what is or is not actionable to reduce intake quantity and relieve caseload. The two notions of expansive and narrowed definitions of discrimination clash sharply at times, allowing lawyers to assert the superiority of their professional expertise in determining what might constitute a prima facie case. Confidence in their professional skills in assessing the merits of a case also makes legal specialists less respectful of the Commission’s authority. Independently determining whether or not a client has a sound complaint is one way by which human rights lawyers strive to assert professional autonomy in a practice regime where the Commission has almost exclusive discretion in deciding whether actions are covered by the Human Rights Code.124 Nevertheless, while lawyers might claim to select cases based on their advocacy of global human rights ideals, they also may be rejecting cases that have a poor chance of success. Clients are told that they will invest significant financial resources only to lose: Well, I don’t represent individuals in cases that I don’t feel passionate about. So generally speaking, if I’m being asked by somebody for my legal opinion, I’ll provide it to them. Sometimes I will put things in perspective by explaining to them how I think things will proceed ... I have said to some people who might be complaining about personal harassment who nevertheless are adamant though about wanting to file a human rights complaint, I will just explain how they can do so. I

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suggest to them how much it might cost ... if they continue to have legal representation through the process in which the Commission is rejecting the complaint. And I can say to them, so what will happen is this: you’ll end up paying your lawyer $10,000 and in the end, what you get is a report written by the Commission saying that there’s no substance to any of your complaint ... That has dissuaded people from proceeding in my experience.125

By discouraging potential claimants from pursuing a complaint, lawyers also contribute to the system’s operational goals, based on their material experience of multiple cases. In this sense, they might argue that they too are gatekeepers to legal systems. Clients are encouraged to take this assessment at face value and as being in their best interests; at the same time, basing representation on the merits of the case enables lawyers to occupy the moral high ground. As others have noted, however, client resources – “the amount of justice that clients can afford” – often play a crucial role in shaping the extent of lawyer advocacy:126 When I say to people, this is how much it’s going to cost you, and I need this much up front, because I’m providing service and I’m in private practice as a lawyer. It’s sad to me but they’re a lot more willing to listen to that as a rationale for not doing it rather than all the other arguments which I do as equally believe in, that to advance negative cases overall hurts human rights. So that’s one reason you don’t want to do it. But the process is individually very exhausting, damaging and draining ... [I]f you’re dissatisfied now, wait until the other side also gloats at you because you’ve lost after you’ve gone through a great deal of effort. Not just financial effort but other types as well. So it’s interesting to me – people don’t accept those arguments as well.127

Despite a widespread perception that lawyers are “guns for hire,” their professional identity is really a complex of professional training and practice, social and organizational contexts, and personal beliefs.128 The lawyers interviewed often inadvertently revealed multiple layers of professional motivation in their day-to-day practice. When asked about their professional goals, lawyers invariably began by stating that their goals were consonant with those of the client. Lawyers themselves, however, have an obvious professional investment in “winning”: Winning. I want my clients to win at however they define winning. If they define winning as, “I made my point. They’ll never do it again.

The Roles of Frontline Staff and Independent Lawyers

[Inaudible] money.” That’s fine by me. Then we’ve won. If they say winning is getting a Board of Inquiry and we get a Board of Inquiry, then we’ve won. If they say, winning is winning the case at the Board of Inquiry and we do, then we’ve won. I want to achieve for them what their goals are ... Personally, sometimes I’d just like somebody to listen to the goddamn case. Whether I win or lose it, whether they believe that the law gives my client a remedy or not, I just want somebody to listen to it and to articulate principles of decision-making about these things that will help further the body of jurisprudence.129

As this quotation reveals, lawyers also have a distinct professional goal in achieving an authoritative hearing of the case, which is to make a contribution to development of the law in this area. Like other lawyers, many human rights lawyers prefer a hearing structure. Lawyers understand and desire hearings. They like the idea that they have an opportunity to publicly challenge representations made by the other party. What goes on at a hearing is tangible; it can be seen. It occurs on a certain date. It becomes a matter of record. It takes place in front of an adjudicator. It has an air of finality about it. A practice norm, especially in employment law but also in civil actions, is obtaining a hearing for a client, whether before a court or another type of tribunal. It has been held by the Supreme Court of Canada that there is “a general right to procedural fairness, autonomous of the operation of any statute.”130 It may not include the right to an oral hearing. Nevertheless, human rights lawyers, many of whom also maintain employment law practices or have appeared in Charter cases, express the view that going to a hearing is a tangible and visible culmination of their professional efforts. One interview subject linked the infrequency of cases proceeding to a Board of Inquiry with human rights lawyers’ sense of professional fulfillment: It’s difficult though, I think, for the Human Rights complainants bar to get ... deep professional satisfaction when we have to deal with a Human Rights Commission that is acting as a gatekeeper for these complaints. I know people who have been practising for between 5 and 10 years doing exclusively complainants’ representation and have never had their complaints go to a Board of Inquiry. Not even once. And so, if you ask them about whether or not they feel professionally fulfilled, I would suspect that they would say, no.131

In constructing their professional roles then, independent human rights lawyers must manage client desires, their own professional aspirations

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and goals, and the empirical realities of the administrative regime. The goal of obtaining a hearing is unlikely but plausible,132 and represents both a fulfillment of the client’s understandings of how legal disputes “are normally resolved”133 and a victory for lawyers’ sense of their own ability to influence the process and implement their client’s wishes. Lawyers, however, repeatedly encounter a conflict between the Commission structure for handling and attempting to resolve complaints and the convention of adjudicating disputes at a hearing. They also speak of how the mediation process subverts clients’ desires for a day in court: So because the Commission has created this mediation process to get rid of complaints it has meant that counsel also now want to mediate and reach settlements. And so we have been in some ways corrupted by this policy of the Commission into diverting our clients’ desires away from the day in court.134

The process by which a complaint is resolved thus becomes another field of struggle for lawyers trying to assert their professional role in complaint handling. As noted earlier, this raises the question of whether it is the client or counsel who feels that an adjudicated hearing is the most procedurally desirable goal. Some studies have found that laypersons deeply appreciate the opportunity to have their story heard, while other research indicates that a satisfactory “hearing” of their side may be effected more informally. Many researchers have found, for example, that lay individuals hold certain expectations about legal proceedings and procedural “fairness” that may strongly influence their level of satisfaction with the process of resolution even more than a favourable outcome does.135 In contrast, proponents of alternate dispute resolution (ADR) processes contend that such processes better encompass non-legal aspects of interpersonal conflicts, thereby producing a more satisfactory resolution.136 For example, participants in a recent public community consultation in BC called for a simple and transparent human rights process, one that was less legalistic and complex. People wanted a substantial opportunity to “tell their stories and to have the Commission listen,” regardless of the process of dispute resolution used.137 A concern with procedural formality may be correlated with participants’ procedural knowledge; that is, the more uninformed the participant, the more comfort may be found in procedural formalities such

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as a hearing. Others contend that a heightened scrutiny of procedural formality can be correlated with situations where “social conflict threatens to disturb an existing sense of stability and commonality,”138 which is certainly often the case in legitimate instances of discrimination. Consonant with these considerations of procedural justice, O’Barr and Conley found that small claims litigants’ perceptions, for example, reveal a consistent theme: they are “deeply concerned [yet not well informed] with legal process.”139 The authors also found the issue of remedial authority and its “misapprehension” to be a pervasive theme.140 Litigants overestimate juridical capacity and do not distinguish between the power to punish and the order to compensate. R.A. Macdonald puts it more bluntly: “The general public reflexively presume the following equation: vindication of legal rights = judicial process in the regular courts.”141 Thus, dissatisfaction may arise, not because the system fails to perform up to its capabilities but “because it lack[s] capabilities that they had erroneously attributed to it.”142 The current system strives to achieve fairness without formalism. ADR mechanisms are commonplace in most legal regimes, including labour arbitrations, plea bargains in criminal prosecutions, and settlement negotiations in divorce proceedings. Rejection of mediation and endorsement of a direct-to-hearing process by human rights lawyers143 may be associated with the general legalization of rights, human rights codes/Charter convergence, the increase in number of specialized legal aid offices in Ontario, and the prevalence of rights discourse. They are also closely associated with challenges to the legitimacy and design of the current system for human rights enforcement.144 An examination of the literature on lay perceptions of legal processes makes the case that administrative processes should be transparent and fair and give complainants an opportunity to tell their side of the story. It points to the need for development and articulation of administrative values that are consonant with those values representative of the public interest. Independent human rights lawyers play a crucial role in grooming complainants’ expectations, but it is a difficult and uncomfortable one when their desires – such as for a hearing – appear identical to those of the client but inconsistent with the general approach of the agency. This is further complicated by the huge rise in informal settlement mechanisms in all legal areas. Human rights lawyers deeply resent the exclusive Human Rights Commission jurisdiction, handling of complaint investigation, and discretion as to whether a complaint is referred to a hearing. Lawyers vigorously

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condemn virtually all aspects of the current system of rights investigation, citing bad advice to clients at intake, indifferent investigation, strong-arm methods employed in mediation, and recommendations not to convene a Board of Inquiry based on caseload management. Consistent with general legal professionalism, human rights practitioners want a greater ability to control the complaint process and outcomes: more disclosure of evidence, greater accountability throughout case management, direct access to hearings, and higher compensatory remedies. While legislative revision will soon accomplish some of these aims, the legal practitioners interviewed expressed deep frustration over the limitations of their role in the complaint process. Some lawyers take an extremely adversarial position towards the Commission, basing their stance on superior knowledge and expertise. Once they have independently assessed a complaint as “sound,” they resist alternative constructions by Commission staff as to the merits or the propriety of pursuing under the Code the complaints they represent. In their view, the Commission’s conduct in independently inquiring into the case is impedimentary and without substance. Here is a long quotation, but one that vividly portrays the frustration of independent counsel caught between advocacy and compromise: The most difficult and frustrating cases that we deal with are the cases where the client has come in, you have spoken to the client, understand their case, have seen all the evidence and supported the case and you know from applying an appropriate analysis of the evidence that there is a meritorious case of discrimination or harassment. So there’s just an absolute – there’s no question about it, but the Human Rights Commission because either it doesn’t understand how to properly analyse the issue that’s before them; because it conducted an inadequate investigation; because it’s trying to reduce its caseload and has given the case short-shrift. For whatever combination of those reasons, [the Commission] has simply not paid attention and with the result that either you’re confronted with a report that says that there isn’t merit to the complaint and they’re going to dismiss it or usually before the report comes out you actually get an inkling that this is the view that’s being taken of the case and that this is coming. And like I say, those cases are incredibly frustrating because in terms of trying to convey to the Commission the message, and to try to get the Commission to understand why the case is meritorious, is often a huge struggle. But then at the same time you’re trying to properly advise your client in the reality that if this goes forward in the way that it’s headed and

The Roles of Frontline Staff and Independent Lawyers

the Commission actually dismisses the complaint, the way forward for them is extremely difficult. Because trying to go to court to overturn that is very difficult. Trying to access alternate remedies is extremely difficult. And so in many situations of that nature, you’re trying – at the same time as you’re trying to beat the head of the Commission to get them to understand the case on the one hand, on the other hand you’re trying to get your client to understand the implications of what is about to happen to them. And to get them to understand that while whatever settlement offer may be on the table which is woefully inadequate, in terms of addressing the harm that they’ve actually experienced and it shouldn’t even be something that we’re contemplating, nonetheless it’s the best available option for them in terms of getting something out of this case with me knowing what lies ahead for them. Which is, they will lose – not only will they lose everything but they will also lose and never get back any of the money that they’ve paid to me for representing them throughout the case. So those are extremely difficult situations and create a conflict on all sides.145

Independent human rights lawyers thus engage in an uneasy balancing act between representing client interests, and all that entails, including informal contacts with Commission staff who might make a difference to a case, and conforming to an administrative process they have little control over and even less respect for. At the same time, they often exhibit a sophisticated approach to utilizing strategies that may be helpful in immediate cases but are premised on the view that mobilizing the law, including the fostering of good relations with Commission staff as necessary, will facilitate social change in the long term. One lawyer commented on the role of independent counsel in both representing the interests of individual clients and, on a day-to-day basis, maintaining ongoing relationships with Commission staff: Well, I have to recognize that I’m working within a system ... I have to work within the same room as the respondents and the Human Rights Commission because that is unfortunately the room that the government has given us to work in. So I can smash against the wall. I can smash the window occasionally but the fact is I’m still within that room. So within the room, let’s see what we can do. And that really is my role. I go about it in as diligent a fashion as possible. I think that, as an advocate, you use every technique that is available to you whether it is just the intelligent use of processes and writing letters – persuasive letters and submissions as to why the process should move faster. To the –

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what I call the underbelly of the law, which is phoning individuals you know at the Commission that will probably – you have a personal relationship with. And although it is still professional, you know that these individuals, because of your longstanding relationship, will make a difference to your case. And therefore I think you engage all the arts of advocacy that people hire lawyers for because they know that lawyers who work within a system will get a reputation one way or the other. And that sometimes, there’s that saying – with honey you can do more than vinegar or something like that ... On a daily basis, I find myself doing that. And one day I’m railing against some investigator who’s done a crap job and the next day I’m thanking the investigator for doing a good job. Not necessarily the same investigator but really I’m doing that because that is going to make a difference to some individual that’s out there.146

Lawyers do have the insider knowledge and expertise to press the Commission to adhere to a higher standard of fairness in individual cases. Their advocacy is based on an awareness of the contestable indeterminacy of rights. This lawyer, for example, observes candidly that the impact of his efforts on behalf of a client is speculative: [S]ometimes it means telling the system that you are well aware that their goals are different than my goals and that if it really appears that their goals are taking priority, then in an adjudicative system, that’s not really fair. That’s not really correct ... On the front page of my submissions I have said to the Commissioners, you know, “Administrative, financial reasons for not dealing with complaint are illegal and will be subject to judicial review.” Now who knows what effect that has on them whether it makes them think that, god, who wants to deal with this idiot and they toss the complaint away. Or does it make them actually say, “Gee you know, that’s true, I suppose it’s our tendency to do that. But that would really be wrong. We should really look at ...”147

Lawyers also use individual cases as a springboard for pursuing their ongoing goals to reform the system. Often this is framed in terms of “the good of the community” represented. In this, they share a common professional culture that invokes and mobilizes law to achieve legal and institutional reforms. One interview subject recounts: I must confess I’m somewhat leery about saying this out loud but I do say this to my clients. Because we’re a legal clinic and we offer free legal

The Roles of Frontline Staff and Independent Lawyers

services to a community and we try to make life better for the community as a whole I do use the complaints process to change the Commission, there’s no doubt about it. So for example ... about the blocking out [of third-party information on correspondence] thing, you know they used to just do it randomly. Then they started sending letters explaining. Now they actually send sections of some legislation that they think justifies it. So one day I’m going to get to the point where if I keep doing this long enough, I’ll have a complainant who’s willing to file a complaint to the Information and Privacy Commissioner about this blacking out thing and maybe I’ll get ... a resolution from the IPC [Information Privacy Commissioner] that’ll eventually stop the Commission from doing this.148

As advocates, lawyers seek to influence outcomes. It is a source of frustration that discretion may be exercised from within a framework that they cannot control. This frustration translates into antagonism towards the Commission and Commission processes that thwart lawyers’ professional goals. This lawyer expresses frankly the antagonism that the human rights bar feels over their inability to control the complaint process: Many of us that are lawyers that represent complainants when we get together talk about how we can take down the Commission. Because it’s the structure and the exclusive jurisdiction and the exclusive handling of complaints and the exclusive discretion as to whether or not something is referred to a hearing that creates this problem. So most of us would like to have, to give complainants their right to a hearing. Because if complainants had a right to a hearing and they could get a hearing fast then the expressed desires of complainants at the beginning of the process would be met and you’d have a body of decisions in response to those complaints that would reflect the values of the Code, would touch on systemic problems. Your complainants would be happier, the process would make more sense. And we wouldn’t feel like we were being co-opted into becoming a part of what is in effect the evil system.149 Conclusion

Examination of Ontario Human Rights Commission internal documents from a decade that witnessed rapid organizational restructuring reveals an organization attempting to reconcile operational goals with humanistic values. The documents illustrate the tensions between the move to

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evaluate production through monitoring of case management and imposition of time limits on rationalized tasks, and a workforce motivated by the ideals of social justice embodied in a human rights organization. Frontline staff are the entry point or end point for a huge volume of calls associated with the callers’ desire for government agents to intervene in social conflicts. Staff bear the imprint of the institutional context in their concern for gathering sufficient information at inquiry in order to proceed to the consideration of individual complaints or to exclude complaints that have no prima facie link to protections under the Human Rights Code. As we will see in the next chapter, they reconcile the Commission’s operational aims with a strong sense of human rights ideals and a sensitivity to commonplace understandings of human rights. A closer examination of their perspectives shows, however, that frontline staff also bear the role of reconciling a gap between lay expectations of the agency and institutional policies intended to take control of caseload through rigorous categorical interpretations of actionable rights. Not surprisingly, independent human rights lawyers have and advance their own view of their necessity in the process of complaint processing. They represent themselves as protecting their clients’ interests, acting as administrative watchdogs and as active agents of change. Because they are intermediaries in a comprehensive scheme of complaint enforcement, they must construct and reconstruct their professional role over and over again in representing individual clients. Administrative practices are largely seen as impediments to achieving the best potential outcomes for clients. The lawyers make sense of their work by referring to a community of practice, and justify their disapproval of systemic procedures by referring to professional norms that apply in other legal regimes, such as employment law and tort. Few lawyers commented on direct access to the process by unrepresented complainants other than to decry it; the dominant presumption was that complainants require independent legal representation. This insistence imposes an expert insider and adversarial view on engagement with the Human Rights Commission that encourages clients to think that complaint processing is foreign and legalistic, and something for which they need a lawyer to represent their position. For these lawyers, then, professional appropriation of the field of human rights enforcement is an unstated goal. Formalism is in part a vehicle for achieving this goal. The literature on lay perceptions of legal processes speaks of citizens’ desires for their complaints to be heard. In this book, I contend that lay

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concerns about legal processes ought to be met through accessible, transparent, and fair but not necessarily formalistic administrative processes. These concerns also point to the need for development and articulation of administrative values consonant with values that are representative of the public interest, as discussed in Chapter 4. Legislators and administrators should note that the pressure for hearings in order to determine rights violations, so prevalent in lawyers’ accounts and in recent reform briefs, clearly runs counter to the trend towards alternate forms of dispute resolution. The community of human rights practitioners shares an understanding that the current structure of human rights administration in Ontario is deeply flawed and that appropriate reform would involve a significantly enhanced role for legal representatives and advocacy. Collectively, these practitioners may be considered one of the organizational pressures faced by the Commission, but many comments made by lawyers condemning the current structure of human rights administration indicate that there is much more at work than the faults of the system itself. As we saw in the previous section, these intermediaries have multiple layers of motivation in taking and discouraging individual cases, based on client advocacy, professional advancement, and desire for social change.

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3 Transforming Human Rights Complaints into Cases

The gap between expectations about human rights and rights enforcement and human rights administrative policies reflects deeper tensions over meaning and understanding. “Discrimination,” “harassment,” and “rights” are not only legal terms with definitions declared in statute, honed in case law, and referenced in a host of legally weighted policy materials but also terms that are wielded socially and individually to express and condemn certain types of wrongdoing. There is a disjunction between these official and social understandings, explainable in part by the expansive ideals articulated in official references. These official understandings and their origins are reviewed in the next section, followed by accounts of popular understandings of rights discourse and their implications for administrative processing. Bridging the gap requires complex communicative exploration, negotiation, and transformation, as definitions take on meaning only when related to the characteristics and circumstances of the potential complainant.1 Official Understandings of Discrimination

With a few exceptions,2 Canadian legislation does not define discrimination, but all the anti-discrimination statutes specify or describe prohibited conduct on designated grounds, such as race, religion, sex, and disability, in social areas such as employment, accommodation, and provision of services. Discrimination exists where such a prohibited distinction, exclusion, or preference has the effect of nullifying or impairing the enumerated rights. While considerations of the interplay between discrimination under the Canadian Charter of Rights and Freedoms and discrimination under provincial human rights codes are beyond the scope of this discussion, the Charter jurisprudence shares with provincial human rights legislation a reliance on the doctrine of human dignity, which is referred to as

Transforming Human Rights Complaints into Cases

a foundational concept in every Canadian human rights code except that of Newfoundland.3 Human rights statutes have been held to be fundamental law of a special, quasi-constitutional nature, enjoying primacy over ordinary legislation,4 and they are to be interpreted using a broad, liberal, and purposive approach.5 Lay understandings of human rights and their violation owe much to the expansive affirmation of human dignity articulated in Charter case law. Similarly expansive language is found in the Preamble and first section of the Ontario Human Rights Code:6 Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations; And whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the province ... Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

It should also be noted that the Ontario Code refers directly to the Universal Declaration of Human Rights (1948),7 which proclaims that “everyone” is entitled to the rights therein “without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”8 International treaties and declarations are indicative of an international consensus, and, once ratified, create direct state obligations. International human rights instruments may also be considered in interpreting domestic human rights provisions.9 Together, these official statements represent an array of local, national, and international aspirations and mechanisms for achieving human rights. Anti-discrimination legislation such as the Ontario Human Rights Code is therefore only one, albeit a pre-eminent one, among labour, gender, race, and disability frameworks for achieving equality aims.10 It is clear,

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however, that understandings of the nature and impact of discrimination continue to expand, thus grounding lay understandings of human rights in a historic expansion of coverage by provincial legislation, a broader conceptualization of rights under the Charter and international instruments, and a culture where government is increasingly perceived as providing protection against a wide array of discriminatory grounds. Professional Accounts of Popular Understandings of Human Rights

Frontline staff are normally the first human rights professionals encountered by those seeking to make a complaint, although lawyers or lay advocates may also be an early contact of choice. These groups are uniquely placed to hear and observe common usage in rights discourse by clients. Their reporting about the ways in which human rights “talk” is used by laypersons indicates a widespread generic understanding of rights with strong moral dimensions but little awareness of the relatively limited application of the governing statute. In addition, we can see the contours of a tension between the valorization of individual human worth and equal treatment as a social policy. Not all kinds of disadvantage can matter. The multiple layers of meaning exposed in common “rights talk” may be usefully compared and contrasted with official definitions of rights. In addition, lay usage of rights discourse creates a ready context for the reconstruction of meaning that occurs in lay and lawyer encounters with administrative human rights processing. Furthermore, professional “knowers” in the persons of Ontario Human Rights Commission (OHRC) intake staff and independent lawyers interpret these expressions in the context of their own knowledge and their own roles within the particular administrative regime that has almost exclusive jurisdiction over the resolution or adjudication of such rights violations. These intermediaries are the link between complainants and the normative/administrative/legal complex. As such, they apply the ideals of human dignity and mutual respect to individual complaints and transform them into legal claims. In doing so, staff and outside intermediaries play a pivotal role in a transformative process constituting these claims within normative, specialist, and operational imperatives. This process is marked by clashes over the meaning of events and conduct, their legititimacy as legal harms, and their viability as human rights violations. Formulating a complaint is a complex process – involving complainants, human rights staff, and advocates – of negotiating meaning, validity, and actionability. This chapter maps the active processes of transforming complaints into cases.

Transforming Human Rights Complaints into Cases

In order to explore the process of transformation from experience to complaint, interview subjects, including both frontline staff and independent human rights lawyers, were asked about the use of and meanings associated with human rights terminology and how complainants label what has happened to them. The next section summarizes representative references to popular understandings of human rights. It is important to emphasize that these quotations represent the experiences of complainants filtered through the perceptual lenses of intermediaries. The following two sections map encounters between lay and professional understandings of discrimination: what happens when clients resist determinations that their experience does not match professional assessments of normative validity, and how professionals manage client expectations and actively construct the jurisdictional boundaries that determine sound and unsound cases. Lay Usage of Rights Discourse as Reported by Independent Human Rights Lawyers and OHRC Frontline Staff

The terminology of rights, discrimination, and harassment has moved into common usage. Common to both staff and lawyers’ accounts of client understandings of human rights is a broad, general, popular understanding of these three terms. A common observation among staff and lawyers collectively is that popular understandings of human rights are much broader than the situations falling within grounds and social areas protected under existing domestic legislation. Bumiller found something similar in the United States, namely, that “the belief in ‘rights’ may extend far beyond their actualization in statute, case law, and legislation, and their realization in concrete social situations.”11 There is a strong indication that laypersons do not differentiate among civil rights, human rights, and Charter rights, or among different enforcement mechanisms. As one lawyer put it, “they’re aware that there’s something that says you can’t be treated differently because of certain grounds. And others just feel mistreated.”12 Another commented: They may have an understanding that they have been harmed. And then they characterize it as harassment or discrimination ... So they frequently come to me saying, “I think this and this and this are happening and I think my human rights are being violated.” Because they have a popular understanding that somehow whenever you’re harmed personally as a human being, those are your human rights. And in fact, maybe that’s a correct understanding of what human rights should be

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but it isn’t what they are in our society. I’m not being critical of them for having a more expansive definition or notion because one of the things we wrestle with all the time in the workplace is the concept of personal harassment which is human rights based harassment.13

A staff member observed that it is easy to see how routine denials of human dignity are perceived as human rights issues even if they are not covered by the Code: Well, it has to have some disadvantage to them, and human rights has to do with protecting the dignity of a person and their basic rights, so that’s understandable that they automatically think, “Well, it’s my human right. I’m a human being. You know, this is my entitlement.” So it doesn’t surprise me that a person would say – or use those terms, “human rights” or “discrimination,” but it’s just a matter of explaining to them in a lot of cases that ... it could fall under the Charter of Rights, but it doesn’t fall within the Human Rights Code. [A] lot of people will tell me a situation in employment where they’re showing, like, really a bad situation, employment environment, with a manager or supervisor. They’re clearly showing differential treatment, but they’re not establishing that it’s related to a prohibited ground, but they’re establishing even the reason why. It could be, well, because they’re outspoken, because they’ve been in the job for so long and then this new manager comes in and maybe that manager’s threatened by them or whatever. So I tell them, “Well, you know, you are being discriminated against in that you’re being treated differently, you’re showing differential treatment, but it’s not the kind that we deal with.” So, you know, where do you go from there?14

Both lawyers and human rights staff commented that there is a general perception on the part of laypersons that personal harassment of all sorts is covered under human rights legislation. According to the professionals, however, what lay persons often mean by “harassment” is being treated in a way that they dislike or that makes them uncomfortable. Once taken up in popular discourse, the term “harassment” has undergone a dilution of meaning: From a swear word to somebody being rude or they call it verbal abuse or mental abuse and they think all of this constitutes as harassment. Particularly they think any unprofessionalism or any bad word is a case of harassment and that we deal with all types of harassment.15

Transforming Human Rights Complaints into Cases

The term “discrimination” may also be used loosely in this way, to denote some type of denial: You know, whether it be that just on the street someone gave them a dirty look, it’s discrimination, or a movie was sold out or something, it’s discrimination. “They should have known, they should have had ...” I think in some cases it’s used more often and because a person has somehow been denied something, so a lot of times every denial becomes a form of discrimination.16

Commonly, professionals reported that unwanted behaviours are perceived as violating a generic personal inviolability: ... more sophisticated communities where the discourse about rights goes on as a matter of their historic development like the black community or the Chinese community or the gay community. They often are articulated in forms of “It’s discrimination.” Blah-blah-blah happened and I think that’s discrimination. But if you’re not dealing with that sophisticated of a consumer, they usually use the term “harassment.” “I was harassed.” How were you harassed? “Well, they gave me this performance evaluation and it’s all wrong and they keep harping on this.” Or, “He said nasty things to me.” Or they describe a series of interactions of an interpersonal nature that may or may not have human rights elements.17

Most often in staff and intermediaries’ accounts of clients, “discrimination” denotes being treated unfairly, without awareness that discrimination under the provincial Human Rights Code must fall within a prohibited ground and social sphere.18 Alternatively, not all laypersons are able to link unfair treatment conceptually to discrimination. The inability to “see” discrimination, particularly in “race” cases, is linked to a normative assumption that racism doesn’t exist in Canadian society or that it must be blatant to be actionable. So the challenge in this type of work, as I alluded to earlier, is that people will come in and very often they themselves will have little to no self-awareness that they can be discriminated against. And what’s also interesting is that their reaction to the possibility of discrimination is not necessarily what you would expect. So you have the range of responses such as, “I knew it was that all along but I didn’t think I could do anything about it” to “No, that’s impossible. I’m just like a

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mainstream and how could that possibly be the case?” and “No one called me a racist name.” The myth out there ... is that you need socalled concrete examples.19

Therefore, it may be more difficult for members of a racialized minority to speak out about their experiences because their historical knowledge convinces them that the outcome is likely to be negative. A complainant commented: [T]o be honest I didn’t know very much about human rights myself because as a visible minority that is something that sometimes we don’t even really want to know about ... [W]hen we go into jobs essentially we don’t really want to be involved with human rights issues. We don’t want to rock the boat. We just want to go in, do our job; we do the best that we can and stay away from this nasty thing ... There was no support. There’s no discussion of it on the job. I mean it’s generally something that people are afraid of and afraid to discuss.20

Thus it may be that a client is not lacking the conceptual link so much as refusing to pursue it. In reviewing a study of the Massachusetts Commission against Discrimination, Bumiller argues that victims of discrimination in the United States resign themselves to injustice because they fear that if they seek a legal resolution, they will potentially lose control over a hostile situation.21 She contends that potential complainants are not defeated by an inaccessible system but by a sense of submission. They submit, she argues, because they are convinced that no one will take them seriously; they legitimize their own defeat. “For the most part, the problem is never conceptualized in terms of public action.”22 Bumiller observes that victims are reluctant to cross the boundary between normalcy and victimhood because of negative connotation and estrangement (as the outsider). She contends that “the role of the victim is the strategy of last resort.”23 Contrary to Bumiller’s findings, my study indicates that people seek legal resolutions to gain control over situations. Even in circumstances where alternative self-help solutions may be quicker, more obviously suitable, or also part of the resolution of a complaint, the validity and authority ascribed to legalism appears to be the main attraction for complainants. As Bumiller notes, however, one reason why people may be reluctant to pursue an allegation of discrimination is their expectation that their

Transforming Human Rights Complaints into Cases

subjective experience is insufficient proof.24 In relation to the “objective knowledge” produced by the routine recordkeeping of employers, corporations, and other bureaucracies, people place a low value on their own subjective knowledge and anticipate that their accounts will be dismissed as unsubstantiated and unreasonable. Another significant consideration is that if an allegation of discrimination is introduced into an already unequal (e.g., landlord/tenant, employer/employee) relationship and there is little potential for an effective and timely rightsbased resolution, the power inequity may be exacerbated.25 A consequence of the emphasis placed by society on the individual is that people may have difficulty linking irrational mistreatment with group identity: People who experience mistreatment search for standards to justify their proclamation of rights. But individuals who both protect their individuality and deny their exceptionality cannot make claims on the basis of the violation of good or bad standards; they can only speak to the legitimacy of their own feelings. Victims thus lose the potential for the language of rights to acknowledge their feelings in a public realm. The power of rights as a potential source of redemption for the otherwise powerless, a positive gesture that reaches out to those similarly situated, is diffused by the consciousness of the civil rights society.26

The irony of anti-discrimination law, then, is that in making antidiscrimination doctrine (intended as a corrective to group disenfranchisement) conform with individual rights theory (for example, an internalized sense of individual dignity), individualization promotes the idea of individual responsibility and self-blame, but universalization undercuts claims that cannot be fitted under the rubric of an enumerated ground.27 Alternatively, some interview subjects observed that clients may characterize what occurred as a “human rights” violation to provide a focus for their strongly emotional experiences. Clients are reluctant to discard a label that accords them some legitimacy. According to some professionals, there also seems to be a lay perception that membership in an enumerated group confers a sort of status that ought to insulate one from ill-treatment or even legitimate criticism: Some people just accept the law is the law is the law and they understand that you have to live within the box and anything that’s not within the box is not within the box. Some people intuitively get that.

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Sometimes I think it’s a class and culture thing. The more marginalized or non-Western a person is, the less likely they are to intuitively understand the box. That’s been my experience. So they just will not understand why, you know, their employer yelling at them is not discrimination just because they’re HIV. You know it’s not harassment in employment if they’re yelling at you because you’re late with your tasks. You know, just because you’re HIV positive and have a disability, everything that happens to you is not harassment on the grounds of disability. Some people have a very hard time accepting that. And the more marginalized you are the more you have problems accepting it.28

As this interview subject observes, clients will sometimes cloak themselves in the perceived status of their disability, and the more powerless they are, the more likely it is that they will attempt to claim this marginal social power. But to affirm that someone “possesses” a right is not the same thing as giving them an automatic grant of power enabling them to exercise it. Social power influences which rights and whose rights will be recognized, how they will be interpreted, and to what extent they will be protected. But those who need rights for protection are often those least able to advance rights claims, and most likely to lack the resources to enforce respect for them. This speaks to a need for human rights to have more than symbolic value to the most vulnerable claimants. Access must remain a key feature of the public interest mandate of continuing state involvement in human rights administration. What do the claims of rights violations by laypersons mean to professional interpreters of rights? They may mean different things, obviously, to complainants and their interlocutors. To complainants, an assertion of a right may mean, for example, “I feel that my dignity as a human being has been offended; I feel powerless in relation to some criticism I have suffered; I feel I wasn’t treated equitably in relation to others; I would like an authority to intervene in a situation I feel I cannot influence on my own; I want to publicize, threaten, or change the behaviours of someone.” To lawyers, a complainant’s expressions of rights violations may mean an opportunity to use their legal training to help someone attain a legal remedy; a vehicle to advance reform efforts; an opportunity to combat the Commission; participation in a mediated solution to help restore estranged relations; a confirmation of social inequity; or an expression of an individual sense of injustice seeking an advocate. To frontline Commission staff, assertions of rights violations may mean an expression of unfairness to an individual in the world at large; a request for generalized assistance with a social problem; a com-

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plex narrative that matches some elements of protected Code grounds; or a desperate last resort assertion that official notice be taken of the extent of individual disenfranchisement. Can all these possibilities be rendered coherent? According to Richard Primus, “[i]f meaning and expression were identical, no interpretation would be necessary.”29 He notes that philosopher Paul Ricoeur makes a similar point, that “understanding an object of hermeneutic study is the same as understanding a metaphor: that which is to be interpreted ‘says’ one thing to ‘mean’ another, and the task of the interpreter is to make this apparent contradiction intelligible.”30 Thus, human rights professionals hear potential complainants’ accounts with an ear bent towards incorporating these experiences within, or excluding them from, the legal meanings of discrimination. According to professional accounts, the Human Rights Commission is often seen by laypersons as the appropriate forum for general expressions of “feeling wronged.” The Human Rights Commission is also seen as recourse following unfavourable decisions imposed by other facets of the legal system,31 or when the employer or other respondent is unreceptive to preliminary attempts to address the issue.32 One interview subject makes an interesting, albeit general, observation about perceptions of unfairness and what we want done about it. While “in theory” people might take the position that social interactions should occur unmediated by government regulations or intervention, when they feel a personal injustice, their sense of fairness often demands outside censure: I suppose I’ve had a sense from working in the area that fairness and what people consider to be reasonable changes with context. And the reason I make that phrase, is that if they are feeling unfairly dealt with, it doesn’t matter the context, it doesn’t matter what legal framework – if the neighbour is discriminating against them. They might feel that everybody should jump all over it. But that same individual in another context, where they’re not feeling mistreated, might as adamantly stand up for the right to have personal interaction unhindered by the state. So I suppose that dichotomy is the other thing I’ve observed in terms of how people deal with the issue of justice and fairness. It really depends upon which direction you happen to be standing and looking at at the moment. It’s not necessarily a consistent concept.33

Other lawyers noted that part of the disjuncture between actionable and non-actionable wrongs originates in legal norms themselves, such as the title of the statute:

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We have in Ontario a human rights code that is titled – that has in its title, the words “human rights.” But what it protects against is not necessarily human rights broadly understood. It’s an anti-discrimination statute.34

It was observed that international understandings of human rights and definitions of terms such as “creed” are often broader than those covered by the provincial Code or are not covered at all: Another ground of discrimination missing is – and this is interesting, I think – within the Ontario Human Rights Code, there is a ground of discrimination called “creed.” But it’s been judicially interpreted to mean religion. It does not include, for instance, political affiliation. So it’s not an offence in Ontario to fire somebody from their job because they’re a communist or because they voted for the wrong party that an employer doesn’t like. And I think broadly, we all understand human rights when we’re talking about the international system to be concerned about that sort of thing. Yet, when we get to the anti-discrimination statute that we have in Ontario, it’s not something that anyone here is protected regarding.35

Human rights professionals place common perceptions of human rights and discrimination in a broad continuum, from the sophisticated to the mundane. Both independent lawyers and frontline intake staff observe that the general public understands discrimination and harassment as unfair treatment, with little awareness that discrimination under the Human Rights Code must fall within a prohibited ground and social sphere. Lawyers distinguish between the “knowledgeable” client, who uses rights terminology in a way that parallels professional usage, and the “unsophisticated” client, who includes inappropriate elements of interpersonal experience. The inclusion or exclusion of complaints as “human rights”-based violations begins with their recounting and selective categorization by professionals into complaints that are “good cases” with obvious human rights aspects and those that represent general, inchoate, or personal complaints unfounded in an actionable ground, which the professionals are dismissive of, even if regretfully. There is a strong moral component to allegations of “wrong treatment” or “wrong conduct.” This moral dimension surely contributes to laypersons’ speaking about rights violations in absolute terms, for example, “What’s right is right, what’s wrong is wrong. I’ve always felt that way [about the complaint.]”36 To call something a right or a rights

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violation is to make a claim of moral imperative and to propose that a practice or proposition “inhabits the higher realms of normative significance.”37 Often it is to assert the proposition as a surrogate for the substantive argument about the importance of the proposition.38 “Human rights” becomes the conceptual mechanism whereby a wide range of personal mistreatment is labelled as an absolute wrong.39 In communities influential in the historical development of rights terminology, legally questionable treatment may be more readily comprehensible in structural terms as “discrimination.”40 Internalized racism and cultural inhibition, rather than ignorance, may nevertheless prevent individuals from articulating the origin of their perception of being wrongly treated. Complainants or their advocates seek to establish moral weight and legitimacy through the successful articulation of personal violation as discrimination. Citizen Encounters with the Legal Regime of Human Rights Enforcement

Not surprisingly, the broad, generic understandings of harassment and discrimination explored so far have significant repercussions in lay encounters with the provincial human rights administration and with domestic human rights lawyers. Experiences are shaped from the outset, with the narrative introduced in these initial encounters forming the raw material for dialogic constructions of meaning and understanding. While each conversation, recounted in isolation, can be seen as a dialogue about a rights violation, it also has significant consequences.41 At the close of such a conversation, understandings of events have been explored, negotiated, and transformed. Their contact with “the legal system” (contacting a lawyer) or the administrative system for processing human rights complaints (contacting the Commission) is the first occasion that laypersons encounter “official” understandings of human rights. Thus begins, or ends, if the matter patently does not fall within the ambit of the Code, the transformation from a legally questionable social event to a legal “case.” What happens to complainant understandings during these encounters? What roles do inquiry and intake staff and lawyers perform in transmitting official knowledge and actively constructing validity? How is concurrence of understanding established? These questions inform the following sections. Drawing from interviews with frontline Commission staff, lawyers and complainants, this study brings to light themes that include client resistance to official understandings (normative validity) of human rights, and professionals’ management of this resistance; inclusion

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and exclusion of experience; achieving mutual understanding; and the appeal of legalism (retention of a lawyer, expectations of Commission advocacy). Negotiating Normativity: Resistance, Boundary Management, and Establishing Validity “The practice of rights discourse is a normative exercise.”42

Frontline Commission staff play an important role in identifying and screening for the human rights nature of complaints. They give out information, ask questions that may draw out an actionable ground, and acknowledge and absorb the disappointment of those whose experience does not appear to fall under Code protection. Because of their gatekeeping role, frontline staff attract hostility regarding the authority of their assessments. Staff members spoke extensively of lay resistance to official understandings of human rights. Do they ever resist it. People resist it a lot for all kinds of different reasons. Sometimes ... they’re very emotionally raw – something bad has just happened to them, they’re very emotional. The last thing they want to hear is that explanation of the human rights issue because they think that’s really a grey broad area and that we’re just deciding that over the telephone right now. We’ve just decided what’s happening is not a human rights issue. So sometimes it’s very good to use key things like “I’m not saying that what’s happening to you is not discrimination and I’m not saying that it’s not unfair ...” and so forth. That it’s not bad customer service or extreme unprofessionalism – but it’s just that it’s not related to the grounds of the Code or it’s not discrimination that we deal with ... But sometimes you need to give them a recognition [that] what they’re going through is bad because they feel that by saying we don’t deal with it, it’s not a human rights issue, that – “what do you mean it’s not a human rights, what are you talking about? Of course it’s a human rights issue.” You’ve got to play with your words.43

The conflict felt by frontline staff in dealing with difficult callers is tied directly to their characterization of a lay sense of personal inviolability. One staff respondent voiced the concern that the common usage of human rights discourse may diminish the seriousness of legitimate complaints and dilute the significance of human rights:

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It does not help us in terms of credibility, because I find that claiming harassment for every single thing, “Oh, darn. There he goes to the Human Rights Commission. There he goes with human rights.” It doesn’t take us seriously, like what it is and what it isn’t. Because then for everything and anything it’s human rights.44

Staff reported that laypersons with a heightened sense of autonomy and the projection of an expanse of personal “rights” are often incensed and frustrated to discover that there is no automatic state mechanism for enforcing their sense of violation: That’s where the conflict comes in. That’s where the confrontation ... Well what do you mean? What do you mean you don’t deal with this kind of harassment? He called me f–ing stupid, can’t you see? He doesn’t call anybody else that. He just doesn’t like me. Well, isn’t there some other government legislation that deals with this? Well, no as far as I know there isn’t any. There’s no government legislation that deals with harassment in general. And you sort of try to bring them back [to] well this is what we do. We deal with issues like race, colour, creed, sex, sexual harassment – were you sexually harassed? No, he didn’t do that. So, is that all that he did? From what you explained, yes. He called me f–ing stupid ... Yeah, and then we try to tell them well, in Ontario human rights doesn’t mean everything under the sun. It means specifically a narrow area of the discrimination. You define that for them under the Code ... Very often – “[W]ell what are you there for? I pay your salary you know.” That’s the general – because we’re not able to help them in the initial state and of course you’re already upset and angry from how you’ve been treated and what was said and done to you. I don’t know which planet you’re living in but generally not everybody is going to be nice to you every day – and it’s not a human rights issue.45

This comment also illustrates the role of frontline staff in “managing” clients by impressing upon them the limits of the legislation and, by extension, the limitations of the agency in dealing solely with a narrow spectrum of violations. Although they frequently encounter client resistance, inquiry and intake staff perform an important role in asserting official understandings when they confront clients’ misperceptions and educate them about the criteria for actionable complaints.

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Some people say, “My boss swears at me and he stands behind me and he [inaudible] my desk and, you know, that’s a violation of my human rights or ... these are basic human rights. He’s not treating me well.” So they tell you that it’s a human rights issue, and ... well, I can tell you [what] my blurb is, “The situation you’ve described is unfortunate, and it’s hard to believe that it happens in this” – you know, depending on who I’m talking to – “that it happens in this day and age. Unfortunately, it does not fall within the grounds of the Human Rights Code. There are three areas that the human rights – in order to file a complaint, your complaint has to cover. Those are social areas,” and I describe that. “Differential treatment. Can you show differential treatment from the way you are treated to the way other people are treated?” And, third, there has to be a ground under the Human Rights Code. “So, okay, well, what are the grounds? Isn’t yelling a human rights issue? Yelling at me?” So then, well, that would perhaps be considered a differential treatment or harassment, but again it has to be linked to another ground to the Code, and then I rhyme off the 16 grounds of the Code. Those are for the people who are very insistent ... So, you know, we certainly don’t try to get rid of them quickly. I give them some time to explain it and think about it. Some of them will even say, “Thank you very much. You know, you’ve given me lots to think about.” A lot of them are – some of them are frustrated and say, “Well, what use is the Human Rights Code?” or “What do you guys do?”46

While many frontline staff stay with a caller until they feel that some understanding of institutional validity has occurred, others express frustration that s. 32 of the Code allows individuals to file a complaint on the basis of a belief that their rights have been violated.47 The following quotation highlights an intake officer’s observations that clients who “force the issue” when staff fail to establish a legitimate complaint should more appropriately raise their claims in the political sphere: So by the time they get to intake, they had already faced reality, so – they were already told at inquiries about these legal issues and they just insist that “I’m filing,” and as the legislation stands right now, because they insisted on filing, we have to take it. I understand that’s going to change next year. It’s just going to be a blessing if that is the case. I’m sure there’s going to be controversies about that, but from my point of view it’s going to be a blessing. Because people don’t understand ... if it’s not a legally sound complaint, it’s not going to go through. They push it through the system, and it only delays all the legally sound

Transforming Human Rights Complaints into Cases

complaints. And to me that is wrong. So, to go back to your question, there is a lot of resistance in inquiries. They don’t like it. However, they don’t do anything about it, either, because when I was in inquiries I used to say, “Yeah, it is very, very sad that it’s not covered. I agree 100% with you. However, there is a way that you can get it covered. Write to your MPP and push it through legislation. Unless there is some ... movement that will try to get this through, perhaps your grandchildren one day will get that covered, but ...” “Oh, no, that’s a waste of time.” That’s the answer we get, so I say, “Fine.” So there is resistance.48

Clients don’t always resist official understandings of human rights. One staff member notes that clients are often more receptive to their complaint’s being declined after a few weeks, or if there is another avenue of redress for them to pursue: [There is a] lapse of time of few weeks, sometimes, before we – the file gets to the intake stage. Then when you call them most of the time they would have come down – whatever reason has prompted them to file the complaint may have dissipated – so when you call them most of the times they are more subdued and unlike when they initially picked up the phone to call. You tell them that the complaint was assigned to you for assessment and to draft a complaint, and in your preliminary view, based on whatever they submitted, you feel that the complaint would not go far and that the Commission has discretion not to deal with the complaint, based on Section 34. You refer them to the appropriate party that normally would deal with their complaint, and try to reason with them. A lot of people will take that and say, “Well, thank you very much and, okay, I thought I would give it a try,” or “I didn’t know that,” in cases, you know, if they have a union or if there is another avenue from which they can seek redress. Others will say no. And of course if they insist on filing, we draft it.49

Inquiry staff have a range of understandings about the nature of their role. Some staff members appear to think that it is part of the job to decide whether a caller “has a case” or even “a strong case.” Others feel that s. 32 (the complainant’s right to file a complaint on the belief that a right under the Code has been infringed) precludes them from making such assessments, or that forwarding files to an Intake Officer is preferable to making an “official” determination themselves. A “potent technique” for discouraging complainants and reducing demands on the institution is to convey a message that the process is an arduous one. As

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J.M. Prottas explains, characterizing the process of obtaining a service as an ordeal can take the form of informal advice, therefore not violating procedural rules, and if successful, may dissuade eligible cases that seem complex, time-consuming, or unrewarding.50 Inquiry staff have a unique role in establishing normativity in that they must mediate the interaction between complainants’ accounts and an indeterminate policy and enforcement regime while dispensing authoritative advice.51 Self-conscious about their relatively “inexpert” position administratively, and anticipating questioning of their expertise by clients, inquiry staff rely on process and hierarchy (referring complaints to another staff member) as vehicles for sustaining legitimacy: [W]hen people are calling an 800 number at the government, they think, “Well, what does this person know? Just do my paperwork and let it go on to somebody else who can make a decision,” and that actually was brought to one of our recent meetings, that if in fact it at least goes to the intake officer with a title, even somebody else, they might find a different way to talk to them about it or the complainant may just think, “Okay, well, it’s gone to the next level, and if at the next level they’re telling me the same thing” or telling – in a different way, even, maybe that’s all it takes.52

Again, the running subtheme of client management is illustrated in this respondent’s assertion that simply hearing the complaint put another way may be sufficient to discourage a complainant. What is left unstated is that “putting it another way” is a coded reference to “refusing to accept a complaint as valid.” Establishing normativity within the Commission can also occur through a consultation process among different units of the organization. One staff member describes how she goes about assessing a situation she is uncertain about: [M]ull it over a little bit, talk to the individual, the complainant, about what’s going on, get more information, ask lots of questions. People are very happy to give as much information as is necessary. And a lot of the time you confer with a colleague or a supervisor about where does this fall? Might this be – just for clarification. [N]ot to give them – not to lead them astray and give them incorrect information. So if you feel that you need more background than you’ve got, then you would rely informally on asking colleagues.53

Transforming Human Rights Complaints into Cases

Another staff member, however, did not feel that the consultative relationship was an adequate one: We get one training session a year with legal and inquiry [work units], or one session between policy and inquiries, where from up on high they tell – policy or legal tell us, “This is how it’s supposed to work” and provide some support during the rest of the year to explain to you. I mean, you have to phone them up and say, “Is this a policy issue?” You know, “Do we really cover this?” “What is accommodation in this area?” And it’s kind of the difference between – the difference between policy and ground. On the ground, we respond immediately to these issues. We don’t have two hours to explain to somebody that this is how the policy works. We want a quick answer that we can provide to the person so they’ll either send in their complaint or go away happy, or whatever.54

While the staff member acknowledges that assistance from more expert staff is available, he feels that it is insufficient to meet the operational requirements of immediate responses to the public. Sometimes, clients may be grateful to staff under the mistaken belief that staff are representing them in pursuing a complaint.55 [S]ome of them are looking – and understanding – for advocates. And we don’t do that. We listen to them, we draft the complaints, but we don’t necessarily believe them ... They’re looking for advocates for the most part. A lot of them honestly believe that we’re here to advocate their position, regardless of how many times they’ve been told that we don’t.56

Not surprisingly, the sense of role confusion arises in part from inconsistent signals given to clients that their case will be assessed and dealt with by Commission representatives. The contradictory signals embodied in the agency “taking a complaint,” and having carriage of the complaint before a tribunal, as McConville and colleagues note in their study of criminal defendants, are mutually reinforcing.57 They help create an environment where the complainant is highly unlikely to resist the characterization or assessment of the merits of their case by staff or pursue a complaint if the Commission is unlikely to support it. When clients seek out a lawyer, they bring with them certain expectations about advocacy. Lawyers assist clients in understanding their

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complaint in rational, legal, realistic terms, whether this means correcting an inclination to self-censure, overcoming the normative myth that racism no longer exists in Canada, or urging clients to see beyond their feelings of injustice. The critical perspective on lawyering advanced in Chapter 2, while affirming that the aim of client representation is to help clients achieve their pre-existing goals (“I want my clients to win at however they define winning”58), obscures the lawyer’s opportunity to construct a particular understanding of those interests. Moreover, to be explicit about the reform agenda, the ability to constitute client interests through representation can be seen as an opportunity to affirm a community of interest. “The lawyer’s understanding of the client’s interests is [thus] derived in substantial part from the lawyer’s own moral and political commitments.”59 Therefore, subjective experience may be validated for partisan reasons other than objective, or at least, institutional, validity. First, the opportunity to tell the story of what occurred in their own way, to a sympathetic professional who can influence the outcome, plays an important therapeutic role for clients. The lawyer can then begin the process of “educating the complainant” regarding aspects of the situation that the law can or cannot address: There is a fine balance between letting them tell their story which is somewhat cathartic and they feel better because someone has listened to them, but at some point you also have to say, [these parts of the client’s account are] not relevant. We can’t deal with that in this context. It has to be dealt with elsewhere or else you have to just let it go. And sometimes they can’t let it go. You know, they want to keep bringing it up and as you get closer to the stage of formalizing the complaint, drafting the complaint, going through the investigation process and then, if it occurs, having a hearing, you have to reinforce to them the importance of letting some of that stuff go because not only can it be not relevant to the complaint, but it can just muddy the issues in a way that is not helpful to them being successful in that complaint and they’re not helping themselves.60

As is well illustrated here, lawyers actively participate in selecting and filtering out details of the client’s narrative to ensure success. Through interaction, resistance, and negotiation, what is understood between lawyer and client begins to be communicatively reshaped through criteria such as validity and disagreement over legal relevance.

Transforming Human Rights Complaints into Cases

Engaging legal counsel is perceived as deploying an armoury in defence of one’s own position.61 Retaining lawyers and initiating the complaint process are seen as a channelling of powerful legitimate social forces to support the vindication of one’s own perception of being wronged. Most of the lawyers interviewed indicated that, in the context of exclusive regimes for domestic human rights enforcement, this expectation was somewhat ill conceived: I think that the vast majority of people suspect and [are] perhaps even a little bit contemptuous of lawyers and legal systems and judges. Kind of concurrently we have this tremendous respect or this tremendous sense that we or the legal system generally can make this huge difference in their lives. So it is ... this tremendous resistance to come to this point where you actually have to sit in a lawyer’s office and try to have your rights vindicated and pay a lot of money to do that or to potentially do that. But also there’s a huge expectation that once [a lawyer is] engaged, there will be a fairly radical turn of events that will work to their advantage. So I would say that once engaged, they do embrace the legal mechanisms but they have too high an expectation about how it is all going to work out. If you place the well-known problems with human rights enforcement on top of that high expectation, you have a fairly damaging or lethal combination of guaranteed disappointment in many cases about how this process is going to work.62

Lawyers may nevertheless play a pivotal role in challenging staff assumptions of normativity and thus influencing the outcome of a case. Many lawyers observed that there are numerous cases where the client and the lawyer feel there is a legitimate complaint but the Commission does not. In these cases of contested validity, the central question becomes how much money and legal expertise the client is prepared to dedicate towards convincing the Commission to reconsider the case. It is highly unlikely that an unrepresented complainant would pursue a successful appeal for reconsideration after a determination not to recommend a Board of Inquiry.63 Here is an account of one instance where the lawyer’s intervention was successful: I’ve had situations where I had written 30-page submissions against a 10-page case analysis that has not only talked about the substance of the immediate complaint but has criticized the whole Commission process ... So once again, remember the case I’m talking about at the Board

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of Inquiry with the black worker in the oil change environment ... That was a case where we had an investigator who literally sat across the table from my black client and said to him that the investigator thought that my client was basically a big tough guy. And he ought to, if he thought there was racism in the workplace, he ought to have confronted it. And the fact that he didn’t, made him [inaudible] as to his credibility. So it was one of these unbelievable situations where, in my view, the stereotypical thinking of the investigator was part of the problem. And so I put that – raised that front and centre in my submissions to the Case Analysis. And we talked about why do people have these myths about black people. Why do investigators have these myths? What did the Donna Young report say about wrong thinking or wrong analysis that leads to such a poor record of handling race discrimination complaints? And unbelievably, I think ... the legal department took a very good look at my submissions and agreed with me. Which is that they saw some really problematic thinking in the Case Analysis. Ultimately, it was referred to a Board of Inquiry. So that was a success story. But it has taken, as I said, six years to get to a Board of Inquiry.64

The role of complainant-side lawyers is further complicated by their strategic use of the complaint process. Lawyers representing complainants sometimes counsel clients to initiate a human rights complaint to convey to the respondent a symbolic message about the nature of their claim.65 Such lawyers also use the human rights complaint regime strategically, to intimidate a respondent into a more favourable settlement. An interview subject notes: [In cases that are withdrawn after a complaint is filed] “Withdrawn” does not mean the case is unfounded. I have filed cases strictly for collateral purposes. They will show up as withdrawn because they are part of an attempt to get a particular employer’s attention. That’s very important. And it inflates their [the Commission’s] stats. Those complaints were probably unfounded. I was fairly conscious that my client would not be waiting for the human rights complaint process to achieve resolution. But it was the mechanism for alerting the employer as to the breadth of damages that they must entertain while we deal with wrongful termination.66

It is also significant that in labour arbitration cases, a compensatory award may be enhanced in reference to another potential cause of action even if it is not pursued.67 Complainants may also benefit from the

Transforming Human Rights Complaints into Cases

potential for aggravated or punitive damages associated with a “human rights” dimension of a labour relations cause. In general terms, lawyers feel that laypeople want a process that imposes a legalistic solution on an interpersonal conflict. One lawyer suggests, provocatively, that the lure of a legal solution is that it doesn’t require the sort of personal reflection and transformation that an interpersonal solution might require: They want a way to describe their experience that results in a solution. And to describe it as mere interpersonal conflict suggests that the answer might lie within them and they have to adapt themselves and their behaviours. And people are resistant to doing that. I’m not being dismissive of what they’re saying. I’m just saying that’s the attraction of having a legalistic description of your experience. It suggests that you have a claim and a remedy, whereas life can be much more difficult than that. In terms of how you react to the world, an alternative might say you should change your reactions to the world, you should change your interactions with the world. And you’d have a different experience and you wouldn’t really feel that you had a claim or even need a remedy. But that requires a different kind of work that people don’t always want to go into. Nor are they always – should they always be expected to be because sometimes they do have a claim and a right to a remedy. I’m not being dismissive of people’s experience in the world where it results in them saying, “I’ve been discriminated against.” Far from it. I make my livelihood trying to understand that. But if you want to know the attraction of legalistic description, it’s because it suggests a solution.68

Validation of experience is also a significant aspect of what individuals seek from approaching the Commission. Interactions with staff may fulfill this need. Staff self-reflectively recognize that they are fulfilling this role: While I’m drafting, I think the phone calls to them to inquire about their complaint, or when we need more information. I think that’s satisfying to them, to get another call after they’ve sent in information from an officer who is basically saying, “Okay, well, we are – we’ve assessed that file and it does appear that you would have grounds to file your complaint, so this is what I need from you.” I think that’s satisfying to them. Because someone is recognizing their – or appears to be recognizing their experience. And again when they get the forms, to

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see it on paper, you know, there we are again recognizing their experience, we’re validating it.69

Speaking to intermediaries is an important step in initiating a formal complaint, and both frontline staff and independent lawyers are keen to distinguish between sound claims and those that would fall outside the jurisdiction of the domestic human rights administrative regime. Both frontline staff and lawyers are anticipating a Code complaint: for them to continue their engagement with the situation, it is important to establish firmly the client’s belief that they were treated this way because of the violation of an enumerated protected ground. Professional respondents thus hear clients’ accounts “selectively,” filtering and evaluating constantly to establish “fit” with or exclusion from not only official definitions of rights violations but also their own world view of the particular legal order of human rights processing. In the process, they also protect or challenge jurisdictional boundaries. The process of establishing the validity of a claim is premised upon the actors’ concurrence as to meaning and justiciability. In the process of negotiating normativity, there is an appeal to both mutual understandings and shared expectations, although, of course, this is not consistently successful. The generic lay understandings of rights ensures that complainants take an active role in asserting the relevant dimensions of their claims to Commission staff. Validity, however, as many of the earlier remarks about disjunction between lay understandings and official understandings of human rights illustrate, does not ensure justiciability under domestic enforcement regimes. Thus, normative validity, in this context, is premised on institutional norms and must be constituted in the professional representation of client experiences. So, for example, complainants commonly use the terms “my rights,” “human rights,” “fairness,” and “harassment” when recounting their experience, but “calling something a right is sufficient for that thing to be a right only if the act of calling occurs within the proper constitutive practice.”70 Frontline administrative staff and lawyers both link the subjective validity of the client’s experience to an actionable complaint under institutional norms through the translation of violation into legal discourse whereby the claim can be evaluated.71 Clients often resist official understandings of human rights as articulated by frontline agency staff and independent lawyers. Because they resist, human rights violations and those day-to-day experiences of personal violation that fall outside of official understandings must be actively interpreted through interactions between complainants and

Transforming Human Rights Complaints into Cases

agency staff and between clients and lawyers. Both Commission staff and lawyers manage clients by conveying to them the limits of the Code and the agency. While staff refer to the Code as providing their discretionary “shield” to decline jurisdiction,72 lawyers refer to the shortcomings of the Commission itself. Furthermore, the professional decision that a violation is actionable or not is not likely to be contested by a client. This setting up of jurisdiction boundaries has both definitional and operational consequences. Staff actively construct authority by mediating between client narratives and relatively indeterminate institutional norms. Lawyers’ roles are more complex: as advocates, they are inclined to affirm the moral validity of clients’ subjective experiences. When lawyers assert objective validity but institutional non-actionability, however, they delegitimize the legal order by undermining institutional norms. Interview subjects spoke about complainants’ expectations about their rights and rights enforcement in ways that indicated a disjuncture between commonplace understandings and “legally actionable rights under the Code.” The human rights lawyers I spoke to were often quite sympathetic to the injustice suffered by their clients while being acutely aware that their options for pursuing such claims under the Human Rights Code, especially within the realpolitik of Commission processes, were poor. While the lawyers were often prepared to take complainants’ stories at face value – that is, true for them in how they experienced the events – their professional experience often told them that the complaint would fail the test of normativity as set out by the Commission – that is, it would not fall under enumerated grounds in a fashion consistent with current case law and policy. In addition, independent human rights practitioners had a generally poor regard for the functional understandings of rights violations applied by Commission staff, leading to an active contest between independent legal counsel and the Commission over meaning, legitimacy, and viability of complaints. Transforming Experiences into Cases

The process of establishing normative validity precedes the process of objectifying experience, whereby experience is transformed into cases. In theoretical terms, when the client’s experiential narrative is reconstructed as a human rights complaint, the complex relationship of the subject to the world is exchanged for a naïve version of knowledge as an assemblage of unproblematic facts.73 What this theoretical formulation refers to is the process whereby the subjective and situated experiences of the complainant are translated into events that can be addressed

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within a legal world of evidence, proof, probability, and remedy. We might also characterize this process as one of establishing a “professional version” of the complainant’s experience. This can also be tracked in interactions with inquiry and intake staff. Staff recount, in effect, “just the facts, ma’am,” so that these facts can be reordered into a credible human rights narrative. In practice, it is difficult to distinguish between and disentangle the two processes of establishing normative validity and transforming experiences into cases. Moreover, complainants readily embrace the “official version” of their experience. W. Conklin74 conceptualizes the process of lawyers describing witnesses’ experiences as a linguistic one, noting that expert legal knowers, while treating the facts as given, “paradoxically act as if their own signifying relations constitute the whole of social reality.” Conklin refers here to linguistic theories about the symbolic order of language, whereby “signifying representations” refer not only to immediate concepts but also to a body of meaning, reference, and nuance understood by reference to the signifier. Some examples of rich legal signifiers might include “reasonable person,” “duty of care,” “bona fide occupational requirement,” “peace, order and good government,” and so on. He notes that even when lawyers and clients use the same terms, the lawyer is joining the description to a second-order representation or “connotation,” which takes on a very different context in a legal reality. He states: “The connoted code rationalizes, distinguishes, brackets and sublimates parts of the denoted code so as to construct a lawyer’s reality, all in the name of the victim’s reality. The ‘facts’ become ‘clear’ at the very moment that they are transformed into the lawyer’s meta-language.”75 The data from my research illustrate that all three groups – complainants, lawyers, and staff – participate in “shaping” clients’ accounts into “cases.” Subthemes that emerge in the process of reconstructing experiences into cases include staff assessing client credibility, staff building their own narrative of an event, lawyers’ use of expert knowledge to “shape” cases, and clients’ sense of enhanced validity after seeing their experience drafted as a complaint. Experience and “case” also continue to interact over time, sometimes resulting in a shift in complainants’ relationship to their case and what they desire as an outcome. The matter of “making a complaint” illustrates the tensions inherent in an administrative body such as the Commission being broadly accessible yet mandated to carry sound complaints forward. It also illustrates the gap between lay understandings and the multiple functions of the Commission, including those constituting “legal” processes. There is

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even a gap in meaning between “making a complaint” and “taking a complaint.” The issue of “taking a complaint” is worth examining in closer detail, as it is rife with consequence. The consequentially drafted complaint constitutes notice to the respondent and “shapes both the course of the investigation and the scope of any eventual hearing.”76 My field study data indicate a widespread belief on the part of complainants that they are filing a complaint when they first contact the Commission or when they are sent and return an intake questionnaire. One intake staff member estimated that 60 to 70 percent of callers have this mistaken impression. Another stated: “That’s a 100% definite impression of our service.”77 Many staff members comment about the confusion surrounding complaint filing and its ramifications: [W]hat happens is that in the inquiry – one of the most frustrating things is that people think that when they put in a call to us or send us a letter that they’ve actually made a complaint. That is a constant belief. And I’m sure you know the process so it’s not right. It has to be a legally drafted complaint, right. That’s a huge problem.78

The complaint “represents the case that the respondent must meet,”79 and therefore its drafting is of paramount concern to a complainant. Under the Enforcement Policy Manual, however, the Intake Officer is directed80 to ensure that the complainant understands the role of the officer as one of “fact and evidence gatherer, mediator, investigator and conciliator and that the officer is neutral in the process and does not represent the complainant or the respondent in the matter.”81 Staff comments indicate an awareness that the complainant’s account is a partial one, or an account of a situation told from a particular perspective: All you’re hearing [at intake] is that one side of the story. So the complainant always [asks] oh, so what do you think of my case? Is it good? And I say look, I can’t form that opinion right now. What I’m able to tell you is that although I might think it’s a good case I would never say it because it’s that only voice, there’s only one side I’ve heard. There’s always, we always say, three sides to a story.82

From their accounts, a notable aspect of the role of inquiry and intake staff is to assess client credibility. Frontline staff often pride themselves on their professional assessment abilities. For example:

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But you develop a sense I find, some of us do anyway, to be able to recognize a person that may be more able to substantiate their claim versus another or someone that sounds more credible than another. And there’s some people that you can tell their story is very credible. [Y]ou know you’re pretty sure they’re going through an investigation and would come out exactly as they say, right?83

Intake staff process the inquiry profile and intake package, and pursue a further interview with the complainant to build their own understanding of events: So, the conversation that was documented between the ISR [Inquiry Services Representative] and the client, when they initially called in, moves on to me. So I get to see what their conversation was about. What the complainant said to the ISR and what the ISR said back ... It’s in our database and what it is it’s just a running log of what the conversation was about. A patch with the file number ... we call it a profile. I’ll read the profile and then I will look at the intake questionnaire and I will say, I can see why the Inquiry Service Representative sent a questionnaire ... Because of what they discussed on the phone. But what’s in the intake questionnaire has nothing to do with the – it’s like way off. So at that point I realize, okay this person got their material and they just didn’t get it. You know, when we were talking about not comprehending, not understanding. So, things like that frustrate me. Where I have to call up the client and I will go over everything ... [T]he frustrating part sometimes can be the clarification and the person’s inability to understand.84

This quotation highlights the reconstruction of complainant experience by intake staff based on the professional summary (the “profile”) created by a previous staff member. The intake staff member describes frustration at clients who “just don’t get it.” What is it they “don’t get”? Both inquiry staff and intake staff members “hear” a call selectively; they are categorizing details and identifying human rights components that are useful and favourable to processing of the complaint. In contrast, the clients do not see aspects of their experience selectively; rather, they are narrating the incident or experience holistically. The professional expectation is that they will assimilate and understand the legal significance of their experience.85 When the requisite account is not forthcoming in the intake questionnaire, the client, in a sense, has made more work for the Intake Officer. Instead of being able to draft a complaint and forward

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it to the complainant for signature, or calling a complainant in to merely sign the drafted complaint, the Intake Officer has to call in and interrogate the complainant face to face before a complaint can be drafted. Some staff members are openly skeptical about clients attempting to “shape” their own situation to “fit” Code grounds. Staff prefer to build their own narrative of what occurred: I’ve seen situations where somebody’s phoned up and not had a human rights complaint, and insisted that he receive an intake questionnaire. Send out the intake questionnaire and we send it out with a booklet explaining how human rights works. The next thing you know you’ve got a questionnaire that’s got a Code ground, it’s got a social area ... and the person has focused their attention toward that particular Code ground. Now, whether it was just because they misunderstood what the original interview was through inquiry, and didn’t focus themselves onto what they really wanted to talk about, or they’ve all of a sudden acquired a Code ground just because it’s convenient to have a Code ground, I don’t know. ... The first question I always ask people when they come to be interviewed, when they walk into the interview as opposed to on the telephone, is “What happened? I don’t want to know what his Code ground [is], I don’t want to know whether it’s a social area. Just tell me what happened,” and ... well, I can start to direct them toward what we’re looking for. If you recite a Code ground to them immediately, then they start focusing their attention away from things that might be relevant toward what they think we’re focusing on, which is not good, because we may miss the point. So if you simply ask, “Well, what happened?” and they can explain generally what happened, then you can take the person toward focusing on the types of events that are human rights events.86

Staff actively “shape” complaints to fit enumerated grounds and operational requirements. They will take information “in the order that they need it,” for example. The following staff account illustrates an interaction with a complainant that extracts the client’s complaint from the context of his understanding of its development and reframes it in the context of a Code violation: Well, I had one this morning, for example. It was an extremely difficult complaint. I took it over the weekend to be able to draft it because

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there was a lot of information in terms of this person, and I really wanted to focus on the human rights issue in question ... It was a handicap case where it became a handicap as a result of overwork. So the person believed that explaining all these overwork times will explain the handicap, but that’s not what we need, because in the terms of human rights, he didn’t need to work all that time. As long as he has a handicap, he’s protected under the Code. It doesn’t matter how much he worked that led to that. That’s perhaps a different issue altogether. So, I drafted the complaint, I sent it to the individual, the individual sent it back with all this additions. And I could picture that this person will have done that, and as soon as I received it I just smiled and I called the person and I said, “If your complaint was about amount of hours of work that you were not paid, you were not recognized, the hardships that it caused you, then those things should go in the complaint. But your complaint is not about that. Your complaint in fact is about harassment and lack of accommodation on the grounds of handicap. You do not need to go through all that to be harassed or not be accommodated because of your handicap, and therefore – you have the right to have that information in your complaint, but my advice is that that would not really add anything to your complaint and, if anything, it would shift the focus of your complaint into a different topic, and you don’t really want that.” However, this is a person who is quite educated and – it was very positive and in fact the individual said, “I thought as much, because you kind of summarized it a lot and I wondered why you had, but, yeah, yeah, I think I’ll go for that.”87

It is not only the Code and Commission policies that enable staff to secure control over the organizational interest in complaint processing. They also hold the power to “produce reality”88 by selecting what will be regarded as fact. Their specialist knowledge enables them, as authors Ericson and Baranek observed about actors in the criminal justice system, to “produce what they know is necessary to secure the result they want. In this view, both the rules and the facts are instrumental tools for justifying official action.”89 Using expert knowledge about the laws of evidence, the Human Rights Code, case law jurisprudence, and Tribunal rules, lawyers also actively shape complaints from the narrative account of their clients. The shaping of complaints occurs to enhance the likelihood of success, obviously, but also because of difficulties with proof, to achieve a clearer “fit” with the Code, or to encompass complexity.

Transforming Human Rights Complaints into Cases

At first, there can be some resistance. I think sensitive lawyers have to be careful about how they do it but what they have to do in the end, when they’re preparing a complainant to give evidence, for instance, is make sure the complainant understands that what we’re allowed to present at a hearing are any legally relevant facts. All of the concerns that the complainant has about what happened to them are not necessarily legally relevant facts. Not every type of discrimination is banned in Ontario. Discrimination is permitted with respect to several different social areas. Racial epithets can be hurled on the street. There’s no law against it. Complainants, I think, initially can think that under the broad guise of human rights, they can complain about everything that has happened to them that they think is unjust. The job of somebody preparing them for evidence in the legal process is to try and excise from their narrative the legally irrelevant facts and get them to focus on those facts which are legally relevant that relate to the language of the Human Rights Code.90

As clients work with a lawyer on their case, they obtain a bit of a legal education, too. They are better able to focus on the legal elements of the case. They start to use legal concepts and legal discourse in a more knowledgeable way. [A]fter having gone through the process for so long and if the case actually goes to a Board of Inquiry, the complainant, I think, can have obtained a partial legal education along the way. So that they can understand more fully what the Human Rights Code is designed to do, what it’s designed to prohibit and they can understand more easily what is considered legally relevant and irrelevant ... By the time it’s all over with, if they have obtained that legal education they can start talking like lawyers do with respect to our discourse, using our language. More so certainly than they did before. They’ve been told along the way what we’re concerned about is harassment on a discriminatory ground. We’re not concerned about personal harassment really. They can start talking about those concepts that aren’t necessarily concepts anyone else talks about, that I know of anyway. You don’t hear this in the donut shop. I used to work in a donut shop. I never heard anybody talking about the difference between personal harassment and harassment on a prohibited ground of discrimination.91

But, as noted earlier, complainants may also begin to shape their experience to “fit” within what they understand to be actionable grounds.

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The lawyer making this observation noted that the more marginalized the client, the more readily the client will attempt to conform to authority by reconstructing his or her own reality: [W]hatever fits within the parameters very quickly becomes the focus of their rage and they’ll let go of the stuff that doesn’t fit within the parameters because, in some ways the fact that there’s a legal remedy will shape their anger and will shape their perception of what has happened to them. So they’ll come to me not knowing what the law is and they’ll have one perception of what happened to them and after they’ve had it carefully explained to them and they’ve understood it, some people experience a shift in reality and will perceive the events that happened to them in a manner more closely resembling the Human Rights Code paradigm. You can see that happening to people.92

Others may feel it is in their best interests to “get out of the way” and leave things to the experts: I was naïve as to the process of the complaint, very naïve. I didn’t realize [there would be] all the legalese about it. I thought, you know, it’s my complaint, I go and see somebody, yes, yes, no, no. No. Okay, now, we’re talking lawyers. So, it was right out of my league that way. It just seemed that it got far more complicated than I thought it would have to.93

Thus, complainants may adopt the use of specialized legal discourse as a way of exercising some power in the unfamiliar bureaucratic/legal environment in which they find themselves. Alternatively, they are undone by the knowledgeable use of such “legalese” discourse, and refer to the language and forms as material justifications for their marginalized role in their own case. Several staff respondents noted that the drafting of the complaint gives complainants an enhanced sense of validity. One staff member speculated that perhaps it is the fusion between client contribution of factual data and legal authorities (Code and case law references) that results in such an impressive impact.94 It is as if the objective representation of their experience legitimates what happened to complainants and makes it “more real.” [P]eople would send you some information that they have written informally, handwritten sometimes, and jot it down, and then you try to put the information together and present it in a drafted complaint that

Transforming Human Rights Complaints into Cases

gets reviewed by the manager and put in the best form possible, you know, typed. And no matter how weak the complaint is, when they get the draft to sign they actually believe – well, they should believe, I hope – they’ve become more convinced of the validity of their complaint, otherwise the Commission would not have drafted their complaint. That complaint becomes a legal document and – and you can sense that from – when you talk to them after they have received the complaint ... You know, if they have any amendment or if they have any addition, the way they go through, reading the paragraphs. Or sometimes they thank you, “What a good job you did,” putting their information together. So it becomes a source of pride, and some of them ask you, “Can I share this? Can I show it to so-and-so?” ... So when they get them, you know, it’s well presented, it’s a legal document, it’s a complaint in a legal format, it just lends that legitimacy to the complaint. So they become attached, and that adds more strength to them to continue.95 Conclusion

What this chapter and review of the field study findings shows is that while rights discourse has enjoyed an unparalleled expansion of conceptualization and application, the official meanings of potentially discriminatory practices are actively contested by ordinary citizens with a great deal of interaction and resistance. My research indicates that these rights are not transcendent but contingent. They are actively constructed through assertion, dialogue, resistance, and translation into legal normativity. Official knowledge is used, particularly by frontline agency staff, not only to implement operational goals but also to interrogate the client’s understanding of his or her experience, to symbolically construct meaning, and to establish normative correctness. This interview anecdote, for example, illustrates how an inquiry staff member extracts meaning from the truncated complaint of an irate caller: I remember one day being on the phone and a woman called up and said, isn’t it my right to go to the bathroom? ... What’s happening there? My employer will not even give me a bathroom break. He suggests that I get someone to cover for me, cover the phones while I go to the bathroom. I do that and on my way back in he’s standing there all ticked off. It is my human right. I mean, I have a body, I have to go to the bathroom at some time of the day ... And I say well is he not just letting you go to the bathroom – I want to see – I have to ask these questions to determine is it a sex issue, is it a male/female thing[?] Nope, all of us.

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He gives all of us a hard time. So I know well it’s not related to sex. Do you have a problem – I have to ask if you may have a condition that requires that you frequently use the bathroom. No, but I want to go to the bathroom twice a day. The guy freaks out on me because I’m going to the bathroom. It’s my right. And that’s what they will tell you.96

Of note, the staff member is not dismissive, but explores and confirms with the caller further dimensions of the situation that may reveal a cause of action. The staffer is using her professional knowledge of the official definitions and practices of Code violations to look for elements of the situation that “fit” into the provincial anti-discrimination human rights policy. Independent lawyers and Commission frontline staff each have distinctive ideological positions. As the interests of the staff are primarily organizational, they work to represent the legitimacy of the domestic administrative human rights process by defining normative validity as residing in those instances of personal violation that fall within the ambit of the Code. Frontline staff deflect challenges to the systematic creation of jurisdictional boundaries by mediating between lay complaints of personal violation and official anti-discrimination policies. While affirming the moral validity of a client’s violation, the interview responses illustrate the prevailing sentiment in lawyers that people desire a process that imposes a legalistic solution on interpersonal conflicts. This requires thinking about a personal violation in legal terms. The lawyers’ representation of client interests also echoes their understandings as a community of interest in human rights reform by constituting those interests in accord with the lawyers’ own political and moral commitments.97 We can also read these remarks as articulating a concern that a client not “do anything” to sabotage the success of their own case, illustrating the easy slippage into recharacterizing a human problem as a legal problem. Discriminatory actions are embedded in ongoing social relationships and must be reconstituted as legal relationships.98 Because we are dealing with subjective, experiential wrongs, which are sometimes defined by individuals as moral wrongs, and in order to satisfy the multiple dimensions of validity, the legal determination of rights must be preceded by processes of communicative rationality. Contact with frontline human rights staff and lawyers specializing in human rights complaints thus begins a process of transforming social experiences into discrimination cases through negotiations over language, meaning, relevance, and jurisdictional boundaries.

Transforming Human Rights Complaints into Cases

This chapter and the empirical research on which it is based have set the stage for some difficult questions. We know that citizens have an expansive sense that interpersonal harms should be justiciable. We know that understanding is contingent. How do we best differentiate those harms that are actionable from those that are not? How do we ensure a process that respects the inherent dignity of every individual through fair and equitable treatment? How do we avoid overloading the system with untenable complaints? How do we implement fairness without formalism?

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4 Publics, Counterpublics, and the Public Interest

[The Human Rights Commission’s] ultimate goal is the promotion of human rights for the benefit of the community as a whole. – Hon. Gérard La Forest, Supreme Court of Canada

The previous chapters have reviewed the historical, institutional, legal, and practice contexts in which those who work with human rights complainants conduct themselves. They have dissected how complaints are perceived, sorted, eliminated, shaped, and transformed into cases. Having established the historical rationales for the current system of rights enforcement, the analysis thus far has presumed the public interest value in a publicly administered complaint system. This chapter examines this very assumption, asking: Can a coherent public interest in human rights enforcement be articulated? What substantive values and activities support the public interest? What are the potential and limits of the complaints system for pursuing the public interest? What other processes exist to promote the legitimacy of the Ontario Human Rights Commission’s role in representing the public interest in human rights enforcement? What is the role of intermediaries in advancing the public interest? This chapter explores and evaluates contested dimensions of the public interest in rights and rights enforcement to support an argument that, although the individual complaint system is a limited vehicle in this regard, human rights remain a collective concern that is best addressed through a public agency that synthesizes and implements this plurality of interests in policy and practice. As David Mullan has observed:

Publics, Counterpublics, and the Public Interest

Even if a particular regulatory regime is not created in the same way as we would have it if we started from scratch, it is important to realize that, as an existing organic body, it has a history, and it also consists presently of a complex series of interrelationships between various actors that, warts and all, may have produced as satisfactory an accommodation of competing interests as could be hoped for.1

In other words, the concept of the public interest may provide a valuable device for evaluating, demarcating, and submitting to a reality check statutorily protected human rights. Consistent with the analysis throughout this book, which has examined the administration of human rights by its active and interactive participants, this discussion attempts to describe the public interest as a process.2 It begins by exploring definitions of the public interest and public interest values. Case law and legislative and agency policy statements are reviewed to identify various components of the public interest, which are then compared with working definitions and observations from staff and independent human rights advocates. The agency literature fuses the institutional understanding of the public interest to corporate objectives and implicates both throughout all agency functions, including individual complaint processing and the policy development process. Staff see the public interest as a balancing act between sensitivity to individual complainants and operational effectiveness. Through their representation of specialized interest group goals, external intermediaries (that is, complainant-side lawyers) endeavour to hold the agency accountable to an aspirational mission while destabilizing, through critical reform efforts, its claim to represent the public interest. Intermediaries could, however, be more effectively integrated into the dynamic process of policy development. This chapter proposes that effective collaboration between the agency and rights advocacy organizations could potentially lead to the revitalization and legitimation of both administrative and public interest values. An exploration of articulations of the public interest in domestic human rights enforcement reveals an elusive concept stretched to contain diverse, multiple, and often conflicting social and institutional realities.3 In identifying some of the values and social forces comprising the public interest, the fundamental interest of the community “in general” is tempered by considerations balancing private and public interests in different aspects of human rights administration. A comprehensive

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policy-based scheme for rights enforcement, public education, prevention, and public inquiry allows for these multiple interests to be negotiated in the context of the pre-eminence of the essential dignity and equality rights enshrined in the Ontario Human Rights Code. This chapter concludes that the public administration of human rights complaints is preferable to the lack of a publicly accessible forum for the articulation and reconciliation of competing interests. Nature of the Public Interest Expressed in Legislation and Case Law

The Ontario Human Rights Commission represents the public interest in domestic human rights compliance through enforcement of the legislation in individual cases and through research, review, policy development, and public education. The case law says little about the role of the Commission in upholding the public interest, however, just as, in the absence of grounds for judicial review, the case law tells us little about how the Commission ought to conduct its business. Rather, these judicial narratives typically comment on the role of the courts in identifying, interpreting, and upholding the public interest. Where there is case law language referring to the scope of the public interest in domestic human rights enforcement, it is addressed in general statements, either in those cases where there is an allegation of abuse of process by the agency or in those cases where the Commission has declined to represent a complainant’s interests at a Board of Inquiry, having satisfied itself that a settlement with the respondent is in the public interest. Alternatively, the situation may arise in which the Commission wishes to take a case before a Human Rights Tribunal based on the public interest, even though the parties have reached a mutually acceptable settlement. An example of the general endorsement of the public interest in advancing human rights is found in Canada Trust v. Ontario (Human Rights Commission),4 where Tarnopolsky J.A. overturned the lower court judge who cautioned that public policy is to be involved only where the harm to the public is substantially incontestable, stating that “the promotion of racial harmony, tolerance and equality is clearly and unquestionably a part of the public policy of modern-day Ontario.” The judgment goes on to note that further evidence of the public policy against discrimination can be found in the preamble and content of several other statutes. “Public policy is not determined by reference to only one statute or even one province, but is gleaned from a variety of sources, including provincial and federal statutes, official declarations of government policy and the Constitution.” Finally, the decision observes that the world

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community has made anti-discrimination a matter of public policy, in specific conventions such as the International Convention on Elimination of All Forms of Racial Discrimination, the International Convention on All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights. The unique goals that distinguish a human rights code are addressed in the majority reasons in Robichaud v. Canada (Treasury Board),5 in finding the objectives of the Canadian Human Rights Act to be distinct from those attracting employer liability for tortious or criminal conduct. Robichaud’s supervisor was found to have discriminated against her by subjecting her to sexual harassment. The case turns on whether these actions can also be attributed to the employer, here the Crown. The case reasons offer a conception of domestic human rights legislation that is to be expansively and generously interpreted so as to give substance to those rights flowing from the inherent dignity and equality of all.6 At the Supreme Court, the majority found the employer liable based on the remedial and educational objectives embodied in the Act. La Forest J. wrote: The legislative emphasis on prevention and elimination of undesirable conditions, rather than on fault, moral responsibility and punishment, argues for making the Act’s carefully crafted remedies effective ... In short, I have no doubt that if the Act is to achieve its purpose, the Commission must be empowered to strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment. Not only would the remedial objectives of the Act be stultified if a narrower scheme of liability were fashioned; the educational objectives it embodies would concomitantly be vitiated ... More importantly, the interpretation I have proposed makes education begin in the workplace, in the micro-democracy of the work environment, rather than in society at large.7

Case law interpreting the scope of commissions’ mandates with respect to the public interest follows patterns of expansion and containment, although it is now hopefully beyond challenge that the public interest in human rights is “fundamental.” In Insurance Corporation of British Columbia v. Heerspink,8 the Supreme Court of Canada was asked to rule on the relationship between seemingly inconsistent provisions of the British Columbia Insurance Act and that province’s Human Rights Code. The majority found that the two statutes could stand together. In

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one of two sets of reasons, however, it is emphasized that if there were conflict, the Code, as fundamental law, would supersede other provincial legislation. In this respect, Lamer J. (as he then was) wrote: When the subject matter of a law is said to be the comprehensive statements of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.9

In Ontario (Human Rights Commission) and O’Malley v. Simpsons-Sears Ltd.,10 the Supreme Court of Canada emphasized the importance of interpreting the provisions of the Ontario Human Rights Code in a manner that would serve the policy goals of the legislation. The Court was asked to find whether a complainant, whose religious practice required observance of the Sabbath, thereby precluding Saturday employment, was discriminated against in effect, under the Code, through legitimate employer work requirements. In finding for the appellant, McIntyre J. wrote for the Court: It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the court to recognize in the construction of a human rights code the special nature and purpose of the enactment and give it an interpretation which will advance its broad purposes.

In Garnhum v. Canada (Canadian Human Rights Commission) (re Canadian Armed Forces),11 the Federal Court endorsed the need for the Canadian Human Rights Commission to strike a balance between its public policy goals and the needs of individual parties. In holding that the Commission did not err in dismissing a complaint when the complainant refused a reasonable offer of settlement, Noël J. wrote: I agree ... that the exercise of the [Canadian Human Rights] Commission’s discretion ... requires it to balance considerations arising from its public policy role, including that of administrative efficiency, with the need of complainants to have their complaints adjudicated. I agree with the Commission’s position that the reasonableness of the terms of an

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offer of settlement is a factor that may legitimately be considered in this balancing exercise.

In contrast, in B.C. Human Rights Commission v. B.C. Human Rights Tribunal and Shannon,12 we are told that the public interest may be limited by the interests of individual parties. With provisions in the BC Human Rights Code for the deputy chief commissioner to be added to both a complaint or a hearing, Pitfield J. of the BC Supreme Court held that a Tribunal attempting to adjudicate in relation to the public interest concerns of the deputy chief once the complaint had been withdrawn would have exceeded its jurisdiction. As a party to a hearing (as opposed to a complaint), the role of the deputy chief commissioner was limited to informing the Tribunal of the broader policy implications arising out of individual complaints, thereby promoting better-informed decisions and remedies. As this consideration of a slim case law on the subject illustrates, the judgments rarely refer directly to the public interest in domestic human rights mechanisms. The references that are made, however, point to the legislation and the administrative framework, in the body of the Human Rights Commission, for its implementation, as the embodiment of the substantive public interest in human rights. They speak to the “special purpose” of domestic human rights statutes, and the educational, conciliatory, and remedial legislative objectives they represent, which are presumed to be enacted at the behest of the public. There is also a judicial awareness of the need for discretionary choices to be made in balancing public policy interests and private interests. The public interest, as articulated in the law, lies in according pre-eminence to the special nature and purposes enshrined in the statute through a comprehensive policy-based scheme for rights enforcement, public education, prevention, and public inquiry. Politics, Policy, Process, and Public Interest Values

Both self-interest and beliefs about the nature of the public interest inform an important strand of public choice theory, which has been defined alternately as the study of how governments supply “public goods” and the application of economics to political science.13 The scholarly application of public choice theory to public law is at a relatively early stage but provides a useful preliminary framework for our inquiry into the debate over the characterization of the public interest in human rights administration and its relationship to the agendas of the agency, interest groups, and judges who view themselves as guardians of the

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public interest. Public choice literature applies a pluralist view, primarily to the political or legislative sphere, arguing that special interest groups shape the content of legislation. Furthermore, by challenging administrative decision making through judicial review, these groups can achieve institutional gridlock. Various social justice and advocacy groups were instrumental in pushing human rights legislation forward historically, and similar groups continue to have an important relationship with the agency and remain its most vocal critics while at the same time functioning as significant policy consultants. As its title indicates, J. Mashaw’s book Due Process in the Administrative State14 focuses on the nature of, the necessity for, and ways of approaching legitimacy in the administrative process. He identifies three approaches to evaluating this legitimacy. The first, which he styles “the transmission approach,” is one whereby the administrative state reflects and applies the democratically legislated will; the second characterizes administrative decision making as the application of expertise; and the third challenges decision-making processes themselves, often as a proxy for disagreement with the substance of the decision. Thus, dissatisfaction with outcome is translated into appeals of administrative decision making. Challenges may also emerge because of the tendency in exhaustive rule making to ignore individual and situational differences. In this fashion – namely, the tendency to generate comprehensive rules for all staff/ public interactions – Mashaw argues, “legalistic” due process has become both overintrusive and underprotective: overintrusive in its reliance on inefficient and rule-bound processes, and underprotective in its ability to provide a sense of personal security and understanding. Because the principle of preserving individual dignity seems “infinitely expansive”15 and ultimately non-justiciable, however, he notes that limitations must be imposed, engendering further debates over legitimacy. An associated argument is that due process challenges become an exercise in the expression of political conflicts about the forms of governance. Mashaw’s work is helpful in structuring the due process jurisprudential framework within which contextual challenges to the legitimacy of domestic human rights processing and policy development emerge. He argues that a satisfactory theory of administrative fairness cannot be arrived at through a functionally oriented policy analysis because this approach is dependent on the social functions of the program or agency, which are not singularly expressed or even restricted to the agency’s declared legislative purpose. Furthermore, as he makes clear, Mashaw’s argument is located in the realm of political ideals and is not an exploration

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of what processes make people “feel dignified.”16 He therefore situates his reasoning at the level of a methodology for articulating process values. According to Mashaw, an approach that is based on personal dignity is best suited to both articulating due process values and addressing the critical issues of administrative legitimacy. His book then delves into the various categories of process values – such as equality, predictability, transparency, rationality, participation, and privacy – that will support such an approach to administrative decision making. In his book Greed, Chaos, and Governance,17 Mashaw explores the potential of public choice theory to inform an understanding of public law, and particularly the relationship between administrative decision making and judicial review. One insight of this theory is that decisions about process may sharply constrain possible outcomes. He argues, however, that public choice theory incorporates a view that legal structure and processes may be given “multiple normative interpretations.”18 Because of this, their purposes remain ambiguous. Furthermore, the dynamics of pluralist politics, with discrete special interest groups claiming to represent the public interest, may, in fact, represent a threat to the interests of the diffuse and unorganized majority. He concludes that the failing of public choice theory in this context is that it proposes static positions for political actors, including interest groups. Given the established interactions between the agency and these special interest groups, a strategic rethinking of the bases of relationship or interaction between them is in order. Differing modes of accountability, accounting for and structuring different competencies, have the potential to revitalize the relationship between interest groups and institutional agencies and take it from attempts at “agency capture” – when an agency becomes so closely allied to an interest group that it reflects that group’s agenda – to a newly infused conception of the public interest. Meeting the Public Interest: Institutional Rationales and Public Interest Values

In Chapter 1 it was argued that there is positive value in flexible and responsive policy-based decision making, informed by the standards and norms of administrative fairness. These administrative law principles set the stage for the Ontario Human Rights Commission to formulate and implement an operational expression of the public interest that fuses administrative values with the substantive aims of human rights legislation. Other political pressures, however, such as reduction of caseload backlogs, may determine a very different hierarchy of organizational values in which the representation of the public interest is re-

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placed with lower-order organizational goals. Multiple objectives are inevitable in institutional life. Also central to the study of public administration is the tension between democratic governance and bureaucratic effectiveness. How, and to what extent, must bureaucracy make itself answerable to the public?19 The public interest is everywhere and yet it is nowhere. How does the agency endeavour to meet the public interest? While “the public interest” is referred to explicitly in some documents, more often the institutional perspective must be read between the lines of declarations concerning “the people of Ontario,” “members of the public,” “the communities we serve,” and similar references. A variety of documents, such as annual reports, strategic planning materials, and policy statements, detail how the Commission proposes to incorporate a consideration of the public interest into its various activities. The traditional focus of the agency and intermediaries has been the system for processing individual complaints. But the complaint process is overburdened by the multiple demands of individual parties for swift and definitive justice-based resolutions, of operational exigencies, and of the expectation that because it is the most visible, it also forms the primary vehicle for the agency’s pursuit of the public interest. I argue in this chapter that the bureaucracy responds to this crisis in legitimacy by seeking to revalidate its public interest mandate through references to corporate values. Critics counter that legitimate accountability would mean responsiveness to reform-minded interest groups. Bureaucratic forms are pervasive in social life.20 Bureaucratic and organizational structures are mechanisms whereby the law is administered. Section 27(2) of the Ontario Human Rights Code states: “The Commission is responsible to the Minister for the administration of this Act.” Administrative agencies deal with politically controversial or sensitive matters such as human rights, thus deflecting lobbying and criticism of government. On the other hand, they may focus public attention on certain issues, such as racial profiling, and enrich political debate.21 Much of the usefulness of administrative agencies is predicated on their ability to develop policies in response to changing conditions, unhampered by strict precedential, technical, and evidentiary requirements. The dominant view of public administration is that better bureaucracy is impartial, expert, efficient, standardized, and quantifiable. The famous trinity of values for professionalism in public administration is “efficiency, economy, and effectiveness.”22 Bureaucracy and bureaucrats are also pervasive social symbols23 that normally represent the structure of the state insulated from civil society

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and democratic political processes. A leading assumption about administrative agencies is that decision making is grounded in a rational model that clearly identifies and ranks goals, values, and objectives; knows and weighs the costs and benefits of alternative courses of action; and chooses the alternative that maximizes the attainment of the appropriate goal.24 The rational model of administration is a form of instrumental reasoning, however.25 It tells us nothing about how the values on which decision making is based are tied to social objectives, or when or why it might be necessary to deviate from standardized practices. The Commission identifies the public interest as an institutional objective that must be generated, strengthened, and restored by articulating philosophical premises and operational objectives in its mission statement and accountability frameworks and mechanisms. The public interest is defined by the Commission, its political masters, its critics, and its collaborators as residing within certain institutional processes and relations among the parties. These official commitments, functions, and processes will be treated here, then, as aspects of the construction of the public interest, although they fulfill other institutional goals as well. Arguably, for example, the articulation of institutional values and objectives discussed below are as much an institutional exercise in managing the public interest as they are a general thrust towards instrumental system imperatives as reviewed in Chapter 1. There is a fine balance, however, between the corporate agenda and the special quasi-constitutional status of the rights enshrined in the statute. The Commission’s Mission Statement defines its organizational mandate as “a commitment to the elimination of discrimination in society by providing the people of Ontario with strong leadership and quality service in the effective enforcement of the Ontario Human Rights Code, and in the promotion and advancement of human rights.”26 The associated “Values and Principles” document lists leadership, an informed public, quality service, consultation, effective enforcement, a valued workforce, and effective and efficient management as organizational principles.27 The Commission acknowledges its multiple expectations candidly. “The OHRC Restructuring Plan: Working Together for Improved Service” (May 1996)28 observes that the work of organizations “dedicated to social justice” is affected by a changing economic, social, and political environment. It notes the following pressures: The public continues to demand more from the Commission. There is increasing pressure from community groups and advocates on the Commission to take quick action in individual complaints, investigate

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systemic issues, demonstrate more leadership in public policy development and provide a diverse range of public education programs. Government is committed to reducing expenditures and balancing the provincial budget.29

In its 1996-97 Annual Report, the first consolidation year after the extensive procedural and structural changes documented in Chapter 2, the Commission presented a new “Accountability Framework.” Accountability is a frequently mentioned administrative value, and can be defined simply as the ability of the citizen to hold government agencies responsible for policy and program performance. The Annual Report declared the Commission’s commitment to keeping the public and the legislature informed as to its activities and expected results. It stated: “The objective of this framework is to create clear expectations, transparent reporting, and measurable results that are consistent with the financial resources committed to the organization.”30 Presumably these statements direct us to an understanding that the public interest is met through the values of, among others, accountability, transparency, effectiveness, and fiscal responsibility. The Commission’s Accountability Framework therefore endeavoured to translate the public interest into measurable organizational objectives. The objectives were grouped as “customer service” through program and infrastructure redesign, and “promotion of the public interest” through a “revitalization” of the educational and information functions. Under the auspices of “clear expectations, transparent reporting and measurable results” in customer service were grouped the following: the introduction of mediation services (in May 1997), with the expectation of higher “success rates,” a decrease in cases referred to investigation, and a standard for turnaround time after referral; the centralization of inquiry and intake services in downtown Toronto and introduction of standards for quality and time frames, with the expectation that early assessments would reduce caseload; the centralization of a case coordination function and use of new database technology to reduce average age of complaints and increase case closures; and staff training. To promote the public interest, the Commission undertook to prioritize and increase resources dedicated to public education, with the expected goals of staff training and development of materials, building strategic relationships with stakeholders and partners, and “repositioning the Commission as an effective public opinion leader.” Accountability embodies the twin meanings of exposure to liability and moral obligation. On one level, the intent of these declarations is

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clearly to “operationalize” the public interest, by creating a framework of documentable and measurable objectives. The pre-emptive setting of institutional goals sends a message of strength, competency, proactive, forward thinking, and independence. In addition, the ideological thrust of these declarations is that the public interest operates as an overarching theme, infusing each objective with enriched moral value. For the organization, the public interest forms an aggregate with legislative and corporate interests. In succeeding years, annual reports have continued to refer to the Accountability Framework, and have reported a favourable self-evaluation regarding achievement of the agency’s objectives. It can be seen from the list of these objectives that the Commission has effected a discursive if not an actual unity in its representations of the public and its own corporate interests. The Accountability Framework presents tangible evidence of goal setting and achievement to counter most challenges to the Commission’s self-defined leadership role. Accountability is more than simply answerability, however. In practice, accountability also involves “a more complex and less formalized effort to ‘manage expectations’ inside and outside the agency.”31 The Commission understands its public credibility to be an important component of its legitimacy. It is also clear, as evidenced in the following statement, that legitimacy has an impact on the public use of the Commission’s various services and at the same time is generated by the effective provision of these same services. The 2001-02 Annual Report states: Public perception and confidence in the Commission’s ability and effectiveness in undertaking its mandated functions are also factors that impact on the public’s use of the Commission’s intake, mediation and investigation services. In addition to these compliance functions, the Commission views the promotion function of its dual mandate, carried out through its inquiry service, research, consultation, policy development, communication and public education activities, to be equally important to the advancement of human rights.32

The unity among goals seemingly effected by the Commission is not generally accepted in the intermediary legal community, however. In the eyes of the special interest advocacy groups, the Commission still receives a failing grade. As the Commission itself concedes, “community organizations do not perceive that the Commission adequately fulfils its traditional role of catalyst for change in society.”33 There is a

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common sentiment among professional intermediaries that the Commission has a significant interest in maintaining a smooth veneer of institutional legitimacy at the expense of a responsiveness to the special interest human rights community. Most of the complainant-side lawyers who commented on this point felt that the Commission compromises its public interest mandate by “bowing to its political masters,” leaving unresolved the tension between political accountability and responsiveness to the “complainant community.” One lawyer observed: The system is an artefact and has been inherited by this generation of bureaucrats. And some of them come to it with a good will and some of them come to it with no will at all. And some of them come to it with an active dislike of it for either that it exists at all or because it’s so deficient for any one of a number of reasons. But their bureaucratic imperative is to avoid adverse commentary from the people they’re accountable to. Unfortunately, the complainant community is not a group they feel as accountable to as they feel they need to shield themselves from – the criticism. And they’re intensively resistive to criticism that would make substantive change. They react to criticism that would involve substantive change by invoking statistics and misleading descriptions of those statistics in order to – it’s very clever, actually. Not just to deflect the criticism but actually to undermine it by suggesting it’s not grounded in reality. And so the conflict is not between people who are just resistant to human rights and don’t want to do them. The conflict is between a system that seeks to perpetuate itself and justify its existence and has a certain obligation bureaucratically. They have to. I mean, that’s what they’re there to implement. So I say these things critically but I understand the people inside the system have a job to do and they’re doing it. They’re doing it within parameters that are very difficult. But I think the conflict comes not just because the system is unresponsive but because the system couldn’t possibly be made to be responsive as it currently is. There’s a bureaucratic imperative to keep it rolling along and make it look like it’s doing something when it’s not. It’s not doing anything that is apparently what its mandate is.34

This “us and them” characterization suggests that the Commission should be answerable not to the legislature but to community groups. Interest-group politics and social power infuse these conceptions of how human rights compliance ought to be achieved. Domestic human rights

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administration is a contested terrain, not only in terms of meaning and understanding but also in terms of ideology. Field Study Perspectives on Defining the Public Interest

Defining the public interest is further complicated by the ascendancy of aspirational human rights ideals. Warner refers to the concept of publics as “a practical fiction,”35 referenced by social movements seeking to affect policy by appealing to public opinion.36 He asserts that “counterpublics,” subordinated social groups, have a critical relationship to power. They are associations that “form and transform” members’ identities.37 Subjectivity, embodiment, and subordinate status become publicly relevant in formulating counterdiscourses of the identities, interests, and needs of these group members.38 In short, for counterpublics, the personal is political and the political get heard. The raison d’être of counterpublic associations is to challenge and disrupt prevailing discourses of power. If we can generalize from those local Ontarian advocacy organizations that represent socially marginalized groups in their engagement with the Commission,39 their definition of the public interest generally is to struggle for responsive governance within a fair and equitable system of social justice. They are committed to community development and the advancement of the equality rights of their particular constituencies, collaboration with other social justice agencies, and law reform. Their role as intermediaries in the construction of rights discourse is a significant one, in that the intermingling of conceptions of rights with cultural identities challenges the expressly legal boundaries of rights.40 This role in a broadened conception of human rights is acknowledged by the Commission in occasional references to “stakeholders” and in statements such as “the willingness of the Commission, the legislature and civil society to work together to achieve a culture of human rights.”41 The Commission has expressly targeted the building of strategic relationships with the many community groups that “share responsibility for human rights.”42 Of further significance is the avowed institutional reform agenda of this counterpublic. Thus armed with an expansive interpretation of rights and the legal machinery to advance their law reform agenda in individual cases, special interest advocacy groups have become forceful participants and stakeholders in the human rights complaint process in Ontario. Many complainant-representing lawyers, some in private practice, some as legal counsel for special interest advocacy groups, also perceive their own interest as consonant with that of individual complainants. Common interests in expansive notions of equality rights and an agenda of institutional reform to better achieve them

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bring about an alliance between independent human rights practitioners and special interest advocacy groups. The community of practice represented by independent practitioners and these counterpublic advocacy agencies maintains pressure on the Commission through assertions that fundamental human rights are too narrowly envisioned and, in any case, not adequately protected under the current enforcement regime. The current domestic human rights model has little legitimacy for many of the lawyers canvassed. One interview subject in my field study pointed to “the gap” between the ideal and the real, questioning the understanding and commitment of Commission personnel to the ideals espoused in their enabling legislation and mandate: They do not on the whole meet the expectations around enforcement of human rights ... There is a tremendous gap around talk and the reality for most workers. There is a tremendous gap between what is set out in policy by the Commission which, in my view, raises expectations, great documents, in synch with the International Covenant, the best of humanist principles. Great documents, but they elevate people’s hopes. This is the same body that is now in charge of enforcement. I don’t think that half their frontline staff are even aware of the lofty principles they flout [sic] as an organization and which the public, through whatever means, have certainly eaten up. Certainly, members of disadvantaged communities, new immigrants, racial minorities look to the Commission for enforcement of basic rights. And I would grab a hat and look elsewhere ... It doesn’t say very much for public dispute resolution.43

Frontline staff also expressed the concern that overly bureaucratic or dismissive responses to potential complainants may defeat the Commission’s higher aims. Several staff members observed that as public agents, their level of commitment is open to public scrutiny, and because of the nature of the mandate of a human rights enforcement agency, the level of staff commitment should be high: It’s a government agency. And a lot of people came here by accident or because, you know, they want a job, they say it’s a job. So there is no passion, there is no fire ... In my own observation, they [inaudible] a big discrepancy between the mandate itself – you know, every job description that you see, that’s advertised by the Commission, is “a

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commitment.” I mean, that’s one of the requirements. Of course, you can’t measure a commitment; it’s very subjective. But sometimes I wonder, because [here at the Commission] you have a lot of people complaining about the kind of work they do and the nature of the work they do, and I wonder why would somebody come and do work that they don’t feel that it’s worthwhile.44

A consistent theme among human rights advocates interviewed is that it is inappropriate for the Commission to have to balance its human rights mandate against the reality of limited resources. A lawyer questions the ability of the Commission to fulfill both its aspirational mission and its operational mandate: [A]s stated within the Human Rights Code, I think the goals are to educate Ontarians with respect to discrimination and harassment. Get rid of it and compensate people for the experience. I think those are goals. I think though, the way in which it’s run, the goal gets changed ... it becomes – we want to achieve that goal in a cost-efficient manner. I think that the Commission has had its budget slashed enormously over the last few years. The Commission has closed every regional office in the province. I’m not sure if there’s any more presence in Ottawa. I think it’s almost all Toronto. There might be two people in Kingston who are considered to be teleworkers now. All of the offices that used to exist have been closed. It’s implicit that the Commission no longer has resources to fulfil its mandate. And so, it now makes decisions based upon whether or not it can afford the consequences of those decisions. The Commission has become expedient. It now makes decisions, in my view, that take into account how much it would cost to do certain things. So the goal has changed from eradicating discrimination to doing what it can about discrimination within the budget that has been given. Technically, the Commission is not allowed to, as lawyers say, fetter its discretion with that consideration. But I think it’s a reality that the Commission is faced with.45

While some, like the interview subject just quoted, mentioned other facets of this mandate, such as public education, those outside the Commission rarely observed that enforcement in individual cases was not the sole component of the Commission’s public interest mandate. The individual complaint function of the agency has had to carry a great load in terms of public expectations. In the following quotation,

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however, a complainant argues that the Commission should more vigorously enforce more extensive applications of the public interest, such as anti-discrimination frameworks in employment settings. The complainant felt that rather than limiting compliance enforcement to monetary sanctions, the Commission should be actively monitoring the implementation of rights culture in workplaces: I’m looking at slightly broader and deeper, bigger issues which really affect people of my community. I mean, this is a new millennium, you know ... and we’re still dealing with these particular issues [institutional racism]. I don’t feel that financial settlements is the kind of accountability that morally and even fiscally, you know, we’re looking for in a government organization like that. We’re looking for people to be committed, internally, to these policies and procedures that they claim that they have in place and to diplomatically try and resolve these conflicts that happen. And they do and they will happen, okay. But ... what they have done is that they’ve violated so much that people have worked to put in place ... From workshops and policies and a lot of money spent in developing an anti-racism policy with feedback from stakeholders. I’ve been part of that process. And then to see it just flouted and contemptuously thrown out the window [in workplaces] disturbs me. The Commission should be stepping in to start asking some “why” questions. Why and how did this happen if you have these policies and procedures supposedly in place? But they don’t do that. What they do is say, “well, pay-up time.” That’s not good enough. I just don’t find that is acceptable.46

Similarly, a respondent-side counsel observes that the educational function is crucial to altering workplace atmosphere: There is not much understanding of human rights in northern Ontario – because of the lack of an OHRC presence here. Its incredible. What’s different? There is less diversity in the population in smaller centres, less comfort with all “these things” ... Positive change is typically initiated by right-minded employers. So if they can educate employers that would be great.47

These field study excerpts illustrate some of the tensions inherent in managing multiple expectations under the rubric of the public interest. Definitions of the public interest in defeating discrimination and eliminating human rights violations run into the same difficulty that we

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have seen with definitions of human rights and discrimination. The term is ambiguous. There are always violations and egregious treatment that lie beyond protection offered by policy and practice. The system is measured more readily by its failures than by its achievements. In contrast to the Commission’s assertion of fiscal responsibility, critics condemning scarce resources as a rationale for administrative decision making advance the position that measuring the agency’s achievement of its public interest goals ought to be done without considering its fiscal obligations. Finally, objections to a settlement process that implies that rights violations are negotiable form a persistent theme with field study participants. Tensions between Private and Public Interests in Individual Cases

In human rights administration, there is a long-recognized tension between the public interest goals of settlement and conciliation and the individual complainant’s need for compensation or vindication. As noted in Chapter 1, educating violators and restoring relations among parties have been significant features of the public interest in human rights enforcement since the inception of the Commission. In line with current trends in many other areas of law, human rights commissions across Canada stress alternatives to adjudication, such as mediation and conciliated settlement. As discourses about human rights have shifted from conciliatory measures to the rigorous enforcement of statutory rights, however, an important question has been raised: Is the Commission in a conflict of interest when it promotes a dispute-resolution process premised on reconciling the parties’ interests while at the same time advancing (public) interests that may be inimical to the interests of individual parties. While different dimensions of the tensions between public and private interests may emerge at different stages of the administrative process, there is always the danger that one set of interests may be pursued at the expense of the other. This was acknowledged in Blencoe v. B.C. (Human Rights Commission),48 where LeBel J. dissenting in part wrote: In proceedings like those that gave rise to this appeal, we must factor in the interest of the respondent, that of the complainants themselves and finally, the public interest of the community itself which wants basic rights enforced efficiently but fairly ... A distinction must be drawn between the process leading to the hearing and the hearing itself. A different balance between conflicting interests may have to be found at different stages of the administrative process.49

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The 1992 OHRC submission to the Ontario Human Rights Code Review Task Force (headed by Mary Cornish) is significant to this discussion in that it contains a singular admission by the Commission that the public interest is only one among several conflicting interests that the Commission must balance in fulfilling its statutory mandate.50 The public policy mandate stated in the Code is “to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person.”51 The Task Force submission notes that in practice, this public policy mandate “can conflict with the duty to represent the interests of the individual complainant, in negotiating settlements and in arguing complaints before boards of inquiry.”52 The Commission “has increasingly felt caught between conflicting goals – that of effecting wide impact change and the equally valued goal of allowing the individual complainant a measure of control in the resolution process.”53 In this brief, the Commission submits that the solution is to give paramountcy to the public interest in systemic cases and paramountcy to “empowerment” in individual complaints.54 There is no indication that this agenda was subsequently implemented. Intermediary legal representatives may seek to circumvent the involvement of the Commission in individual cases because agency concern with representing the public interest does not engage the parties. A complainant-side counsel explains that the lawyers involved will often choose to settle the matter between themselves: [T]he Human Rights Commission by the way is universally hated by the complainant counsel, union counsel and management counsel. It’s a unifying force out there and so quite often respondent counsel are very receptive to just dealing directly with complainant counsel, cutting the Commission out of the loop, resolving matters between themselves. And then the easiest way to resolve a case that includes a human rights component without engaging the Human Rights Commission and its machinery, I was about to say idiocy, is to withdraw the complaint. So all that the Commission see, the Commission doesn’t see the settlement, they don’t see anything that’s achieved. All they see is a letter from me saying on behalf of so and so I withdraw the complaint. Please confirm you closed your file. You never get a quicker response from the Commission [than] when you send in a letter like that ... But those cases, I believe, are treated as withdrawals in the Commission’s statistical record-keeping rather than what they truly are which are

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settlements, right? That happens all the time and it happens because people are frustrated with the Commission. If you actually include the Commission in the settlement, then they have to go through a process of reviewing the settlement and approving the settlement when it’s got nothing to do with them and nobody is interested in their input because the idea that the Commission has any interest as a guardian of the public interest is ludicrous these days. Nobody believes that and nobody sees that actually happening in practice.55

Some lawyers felt that Commission representation of the public interest in individual cases is an unwelcome complicating factor and an impediment to the protection of private interests: In terms of this issue of the public interest ... [i]n the vast majority of cases, it [the Commission] wants to make some kind of show so that in a settlement that it’s involved in, there is something that’s beyond a monetary transaction. And so they want there to be ... these commitment letters where the employer writes a letter saying, “We commit to abide by the provisions of the Human Rights Code.” Well, the legislation is already binding upon them. So getting that letter adds nothing to the process. Posting Code cards in the workplace again adds nothing to the process. But the Commission will try to engraft these on and sometimes settlement negotiations will get embroiled because the Commission wants to be able to point to something in the document to claim that there is a public interest component when that is completely unreal. But then sometimes, cases ... for example, get to the level of a Board of Inquiry and gain some kind of [media] attention. All of a sudden, the Commission clicks into this gear where they want to have this grand display that they’re actually the guardians of public interest. In those cases, they’ll try to engraft on the settlement all kinds of things that they dream up which are not of assistance to the complainant and create serious impediments to getting deals done, in terms of protecting the private interests of the complainant.56

In contrast, some lawyers commented that clients were instead keenly interested in public interest–type remedies: I found that most of my clients, although of course they wanted monetary remedies, were profoundly interested in non-monetary remedies. So they wanted to see Code cards posted in the workplace. They wanted

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to see the staff of that outfit trained. They wanted their letter of apology. They wanted to be certain that the Commission would be checking back there in a year or two. I think that I was always quite surprised at the passion with which all of my clients wanted to see that kind of stuff happen.57

The mediation/conciliation process is a contested practice and has come under particular attack. Several lawyers who participated in my field study contended that the drive to conserve resources administratively fuels the current emphasis on settlement. One lawyer argued further that settlement is inconsistent with a rights-based conceptualization of discrimination: [U]nfortunately, the operational goals of the system have become almost entirely administratively and resource oriented driven. Meaning that the way that commissions in Canada are now structured, regulated, financed, and effectively pressured by the executive arm of the government, it is viewed no differently than any other adjudicative process which must be funded. And if the funding [outlay goes beyond the] comfort level given the political goals within that government’s mandate, then that problem has to be contained and something has to be done about it. And so what happens is you then have the importation into human rights processes of mechanisms that in some ways don’t – are antithetical to human rights enforcement, such as mediation. So while I’m certainly not opposed to mediation and there are many good aspects of mediation, there are limits to mediation because you are really not talking about interests that can simply be traded up. Like, you don’t want to give me $10 – how about you give me $2? I want $9 so you want to give me $3. How about we settle at $6? Now how does that compare with a system whereby a woman is saying, look, I was sexually harassed in the workplace? And I was called these names and I ended up sleeping with my boss because – and then the next day, you know ... what is there to trade in that regime? To me, can that person really enter the same room and say, “All right, how about I say it didn’t really happen but you give me $200,000.” It doesn’t really satisfy a rights-oriented regime. I don’t think that politicians are – that that point has been fully understood. Or even if it’s understood, I don’t think it’s sufficiently appreciated by the political masters right now because they know that to appreciate that would then necessitate putting the adequate resources

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into it. And that is what makes human rights adjudication very different from, say, a personal injury case. Not to say that people don’t feel [inaudible] in other forums. But there are certain unique things about human rights. And what we’re seeing really is just more and more systems whereby they are trying to cut down and just discard anything that is not fairly obvious because of resources.58

An intake staff member concurred with the view that mediation or settlement may be inappropriate for resolving allegations of discrimination. This staff member also commented that mediated settlements may not be in the parties’ best interests, but that the threat of a complaint going forward is sometimes a sufficient but “illegitimate” incentive for settlement: Now there’s a mediation process which definitely helps the Commission. But I’m not sure I think that it’s necessarily the best thing personally. I think in some cases it’s good and in some cases it’s not. And I think in some cases, they wouldn’t like me saying this but, I think it’s not fair to the employer. And sometimes it’s not fair to the complainant either ... I mean here’s what an employer is often going to do. Especially a large employer and you can’t blame them for doing it. Someone’s going to file a complaint. The company knows there’s not much to [the complaint], or you know what I mean? There’s not much to it or they could really win like that. Or, it’s bogus for whatever the reason may be. But you have mediation of rights here. So the employer is going to say well I’ll sign your little $2,000 or $5,000 cheque here because of the amount of money it’ll cost me to pay a lawyer to go through the investigation and settle with you here, because you’ll lose, maybe the complainant will lose. But what do you think is best for the employer? To pay $10,000, $15,000, $20,000 in legal fees, whatever it may cost him if the lawyer’s costing $400, $500 an hour through an investigation versus signing a nice little cheque here? You’d be surprised the number of employers who do not believe [themselves] to be at fault whatsoever, whatsoever, and I can tell you the person doesn’t have a complaint. But because the person filed they’ll give them a little cheque here. That person thinks, wow they admitted to it, which they didn’t. But they think they admitted to it somehow or [the complainant is] happy about the little money they see. And this guy [the employer] only did it because of all the money he saved here and I think that’s unfair. They have nuisance budgets right? But sometimes I find that the Commission also says to complainants that it’s

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your choice. Mediation is voluntary. And my impression is that the Commission is often – I’m not saying they’re like putting a gun to anyone’s head or anything, but they’re pushing for mediation.59

Interestingly, these two comments reveal the potential for different understandings of the outcome of a mediation/settlement process. One, that of the lawyer, proposes that a complaint respondent who settles sends a message to the complainant that the discrimination did not occur. The other, that of the staff member, proposes that a settlement sends the message of an admission of wrongdoing by the complaint respondent that may not be warranted. Both caution that the use of alternate dispute resolution mechanisms may be fuelled by operational considerations. One of the questions posed by the Commission’s Mediation Services Participant Satisfaction survey of 1998 addresses the public interest in the following form: The Human Rights Code sets out a public interest mandate. This means that the Ontario Human Rights Commission must ensure that the public interest in each case is met either through resolving the individual’s issue or ensuring discrimination does not occur in the future. Do you feel that the public interest arising in this case was served through the mediation process?60

Notwithstanding the absence of an explicit definition of the public interest in the question,61 66 percent of survey respondents (complainants, respondents, complainant representatives, and respondent representatives) indicated that they felt the public interest arising in their cases was served through the mediation process.62 It is revealing to note that mediators reported having to remind the parties of the public interest mandate nearly half the time (47 percent).63 One comment indicates that the parties or their representatives may have little or no interest in the public interest. A respondent’s lawyer replied to the survey that “[t]he mediator had no business trying to insert a global term of settlement that she wanted because she thought the Commissioners would want it. The complainant was not interested in this term.”64 It may be an unexpected side effect of the recent rise in alternate dispute resolutions in private law areas that the public interest dimension of human rights in these processes is more likely to be misunderstood, rejected, or overlooked. The informality of the process might incline participants to think of their negotiations as private, of concern to no one but the immediate

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parties. In any case, the lawyer’s comment illustrates the necessity of an independently represented public interest. While the Commission’s Enforcement Procedures Manual asserts that “[t]he Mediator in interest-based mediation does not have an interest in the outcome,” clearly the Human Rights Commission is at least obligated to represent the public interest in the disposition of complaints. The Manual then addresses the Commission’s role in representing the public interest in complaint settlements. The text in these provisions makes clear that the Commission must be satisfied as to the manner in which public interest issues have been addressed in settlements, but is also notably opaque in stating what the public interest is.65 Once investigation is complete and the findings of the investigation have been disclosed to the parties, the Commission may endeavour to effect a settlement by conducting a conciliation. The Commission acknowledges that parties may have different interests in resolving a complaint through settlement “even where there is no agreement that a wrongful action has occurred.” The role of the investigator in the conciliation process is to represent the Commission’s interests, which include the public interest to seek “resolutions that remedy past discriminatory practices and prevent their recurrence”; resolutions that comply with legal constraints and Commission policy; resolutions based on the evidence gathered during the investigation; resolutions that do not tend to place the Commission in disrepute; and approval of any agreement reached. The Commission’s interest also includes disallowing protracted conciliation discussions to “interrupt the orderly flow of cases and the timely processing of complaints.” There is no indication in the Enforcement Procedures Manual that resolving the multiple interests of the Commission might be contradictory or unattainable in practice; as noted above, however, the Commission acknowledges elsewhere that it must balance the public interest against the interests of individual complainants. The Commission does not have authority over boards of inquiry, but is a party before a tribunal and has carriage of complaints. Complainants are cautioned that the Intake Officer does not represent them; likewise, counsel for the Commission at a Human Rights Tribunal, while responsible for presenting the case supporting the complaint, also does not represent the complainant’s interests. The Manual observes that the public interest, represented by the Commission, and the complainant’s interest “usually coincide.” When they do not, the complainant is advised to retain independent counsel. If the complainant does not, Commission counsel informs the Tribunal that the Commission position before the board may not reflect that of the complainant.

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Complainants may feel coerced to accept a settlement because the Commission indicates that it would not recommend the appointment of a board of inquiry in cases where the respondent’s offer to settle was viewed by the Commission as reasonable.66 Although the Ontario Divisional Court declined, because of a long delay, to set aside the Commission’s approval of a settlement, this practice was censured by Rosenberg J. (concurring) in Johnson v. Corporation of the City of Hamilton,67 who wrote: “In my view this letter clearly says to Mrs. Johnson, ‘we have decided not to request the Minister of Labour to appoint a board of inquiry and therefore you had better accept the settlement.’ In my view this is inappropriate coercion by the Human Rights Commission for a number of reasons.” In the alternative, in Garnhum v. Canada (Deputy Attorney General), the Federal Court, Trial Division, held that as the Commission balances considerations arising from its public policy role, including administrative efficiency, with the needs of complainants, “the reasonableness of the terms of an offer of settlement is a factor that may legitimately be considered in this balancing exercise.”68 The Commission is insulated from bearing the cost when a complainant retains independent counsel to pursue an administrative law remedy to force the appointment of a tribunal, as it is when independent counsel succeeds in obtaining a finding of discrimination before a tribunal.69 While a Human Rights Tribunal may order the Commission to pay costs to a respondent if the complaint is found to be trivial, frivolous, vexatious, or made in bad faith or has caused undue hardship,70 it has no authority to force the Commission to pay costs to a complainant,71 even where the victim’s losses have been exacerbated by delays in the Commission process. The tension in balancing individual and collective interests in individual cases is common to all public law regimes, including criminal prosecutions and workers’ compensation regulation. While the Commission has the discretion to pursue this balance in individual cases, its decision making is also subject to reconsideration provisions and judicial review. Heightened awareness of the necessity of balancing these twin objectives and ongoing scrutiny of the agency’s competency in doing so safeguard the health of the enterprise, although it is inevitable that the Commission will be subject to public criticism. Policy Consultations: Managing Institutional Pluralism to Enhance the Public Interest

Human rights advocates refer to gatekeeping, rejection of claims, slow

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claims processing, pressures to mediate or settle, and subordination of human rights aspirational ideals to operational concerns as evidence that the current complaint system has reached its limits in meeting its public interest mandate. As we have seen in Chapter 2, these objections represent, in part, “practice community” challenges to the institutional legitimacy of the agency. The trend towards a legalization of rights with the advent of the Canadian Charter of Rights and Freedoms, the rise of special interest advocacy, and heightened attention to procedural fairness in administrative decision making provide other ready explanations for the adversarial stance of the local human rights bar. What is not clear, though, is that these critiques, however warranted, are tied to alternative models or arguments in support of how best the public interest is to be represented. Rather, they are used to buttress arguments for a privatized “direct access” model, one that would sharpen the focus on adjudicating individual complaints and eliminate the complaint screening, processing, and settlement functions of the Commission. The remedial function and special broad purpose of the Ontario Human Rights Code argue strongly for the continuation of an arm’s-length government agency with multiple roles. A privatized model of complaint adjudication would sever the broader promotion of the public interest from actual cases. Without a designated public agency to protect and advance human rights ideals in practice, rights enforcement may become even more vulnerable to short-sighted political exigencies. Eliminating or dispersing the various functions of the Commission risks fragmenting and thus degrading the public interest mandate, exacerbating a descent into hyperpluralism. Despite its shortcomings, a public agency responsible for the pre-eminent domestic human rights enforcement framework brings about a unity of interest among otherwise heterogeneous aims. Shelagh Day, a national human rights advocate, co-author of two books on Charter equality rights, and former chair of the Saskatchewan Human Rights Commission, wrote about the (then) proposed Bill 53 abolishing the British Columbia Human Rights Commission: Without a public body to fill the legal advocacy, education, research, public inquiry, and systemic discrimination roles, these purposes will be difficult, if not impossible, to fulfill. Under Bill 53 (B.C.) the only part of the human rights system that is left is individual complaintprocessing by the Tribunal ... If Bill 53 passes, with it passes the understanding that the elimination of discrimination is a concern of every resident of the province.72

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There is a consciousness among policy staff at the OHRC that of the Commission’s many organizational goals, the public interest is preeminent. In recent strategic planning documents, it is noted that “[b]eyond timelines and case management goals, however, there is a particular legal mandate of social justice and public interest that is linked to the quasiconstitutional status of human rights commissions in Canada.”73 The institutional functions of the agency towards accomplishing this imperative include reinterpreting existing mandates, conducting systemic reviews, issuing policy directives, pressuring governments to amend the legislation and broaden both the scope of recognized rights and expanded powers, and maintaining supportive relationships with nongovernmental organizations.74 In addition, the volume of complaint processing by the Commission, while discouraging as evidence of ongoing discriminatory social practices, shows that there is significant public interest in having a government agency designated to receive complaints of such practices. A “direct access” model would offload much of this mandate to the not-for-profit sector without public accountability and without the assurance of stable funding to accomplish it. Recent public administration literature considers public administrators to be uniquely well positioned to represent and understand the contested character of the public interest.75 This literature is critical of the normative assertions that place public administrators in some implausibly neutral realm, divorced from the political and community implications of their work. It argues that public administrators not only must exhibit (and implement within their organization) technical competence but are also invested with the role of “democratic standard-bearers with responsibility for protecting and promoting both procedural and substantive values of our democratic polity.”76 Morgan, for example, argues that through their role as mediators between elected politicians and citizens, public administrators must exhibit a trait of administrative phronesis, or the practical knowledge to integrate considerations of workability, acceptability, and fit.77 Their work links carriage and decision making in individual cases to policy consultation, development, and implementation at political and administrative levels. Policy formation shapes institutional and relational practices and interactions. Morgan contends that the administrative process is a decisional forum with greater capacity for the social complexities and interplay of public problems than either legislatures or courts. He refers to two features in support of this claim. First, compared with courts or legislatures, intermediate due process requirements do not isolate the agency from larger social patterns. The decision-making ground of comparatively low

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expediency and high principle means that administrators are less constrained by past decisions. Second, sensitivity to political cues enables administrators to take the longer view, see multiple ramifications of an issue, and value the importance of a combination of knowledge and information in solving public problems.78 The agency has the institutional capacity to both initiate and implement policy changes in response to social reform efforts. From a critical perspective, the legitimation function of the agency is enhanced by its providing structured opportunities for the active participation of civil groups. Policy outcomes have more democratic credibility when they represent a synthesis of the contributions from multiple constituencies. There remains the question of whether the Commission can effect positive and constructive relationships with the very groups and individuals that advocate its abolition. Are there other institutional processes whereby this agency legitimacy crisis may be overcome? I argue that enhancement of the Commission’s interdependence with rightsseeking communities through the consultative policy process provides a significant impetus for the restoration of legitimacy and revalidation of the institutional competencies of the Commission. Each year, the Commission holds numerous consultations with a broad variety of groups, and while the application of these consultations to the policy development and policy revision processes is not systematic, it is becoming more so. In some instances, the consultative process is fully integrated with policy development. As an example, the OHRC Strategic Plan 2001-2004 Backgrounder details policy development in the area of gender identity, synthesizing research, consultation with the transgendered community, meetings with selected officials and health professionals, development of a discussion paper, and incorporation of feedback in the discussion paper, culminating in Commission approval of its Policy on Gender Identity.79 In practice, the Commission, perhaps like many other government agencies, also seeks to monitor and gauge emerging trends nationally and internationally, and may solicit or conduct consultations with a wide range of stakeholders and other resources before the policy development stage for a particular issue is ripe.80 Handler’s theory of public action81 takes the view that policy formation and its implementation are an interactive process, carried out in part through communicative conflict and in part through the exercise of local, and responsive, discretion. He proposes that “the purpose of a theory of public action is to enhance the capacity of individuals for selfdetermination in the modern social welfare state.”82 Programmatic decision making, as in human rights administration, is shaped by institutional

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demands and goals, but also by the influence of third parties such as advocacy agencies pursuing their own interests. Without adequate consultation, advocates may feel that policy initiatives seem to “come out of nowhere.” One lawyer observed: The Commission can suddenly become interested in one particular ground of discrimination. It’s happened most recently with respect to disability. In November of the year 2000, the Commission came out with a new policy on disability and the duty to accommodate. The Commission completely revamped the definition that it was using that applied to the word “handicapped” in the Human Rights Code. The Commission, I think, suddenly became concerned more about discrimination on the basis of disability. I’ve also seen it with respect to age. The Commission, within the last couple of years, has become very concerned about mandatory retirement. I’ve seen it with respect to sex and pregnancy. The Commission, a few years ago, [was] suddenly big about that. There are times at which the policy branch of the Commission might be engaged in a particular type of research around a prohibited ground of discrimination and that leads the whole Commission to be concerned about it. And for a time, there certainly is more engagement with respect to that particular ground.83

Consultative outcomes also reflect other tensions in this area: synthesizing the public interest through public consultation processes will almost unavoidably provide a forum for criticism. The Commission observes: “Our consultation also stressed the importance of partnerships early in the process prior to the development and distribution of material. Furthermore, plain language documents are required and a need was identified to target the workplace and workers. Community groups expressed the need for multilingual formats.”84 Community representatives also told the Commission that “information on and access to the consultation process had to be improved by providing more leadtime and by informing more stakeholders of the Commission’s agenda.”85 These statements indicate that certain communities of interest want a greater influence in determining the policy directions of the agency, and would like to see the Commission’s policy intentions made explicit in advance. Consultations indicate that public expectation of influential interactions with the agency is high and that this expectation is not being met. Hostile advocates may sabotage or hijack the consultation process to advance their own agenda. This is a complicating factor when the

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reform envisioned represents a structural change that is not within the statutory mandate of the agency. An outspoken reform advocate stated: We have identified what our goal is in terms of external advocacy. Our goal is absolutely to lobby until we die for direct access to a hearing. Last year, the golden fleece – or whatever that expression is – was in front of us, the holy grail of direct access was right in front of us with the Ministry of Labour’s initiative to create this “super tribunal” in the employment area. There was discussion that it was a very real possibility that included in that would be the right for complainants to file their complaints directly with that tribunal and go straight to a hearing which is what we’ve been wanting for over a decade. But that whole initiative collapsed. Then right now, we just have gone through a Ministry of Citizenship set of consultations where the consultation is the most [...] process I’ve ever been involved in. But they were directed at getting focus groups together with an objective of tinkering with certain aspects of the human rights process. And we basically hijacked those consultations and said, all of your questions are the wrong questions and there is only one answer to every question that you’re asking which is direct access. If you give us direct access, these problems will go away.86

Conflict arises in communication because all parties expect the advocates to be aggressive as well as interpretive.87 Without conflict, the agency risks complacency and the human rights community risks co-optation. The idea is that, through conflict, better communication and understanding will occur: “[T]he outsiders bring a different perspective, different sources of information, and the ability to help manage environmental uncertainty.”88 While social movement groups collectivize grievances, they are also active contributors to the development of policy and programs. They “bargain for the creation and definition of values, for the structure and content of the legal and administrative framework ... and they have the responsibility for creating patterns of communicative conflict for all points in the system.”89 Their work links representation in individual cases to lobbying, advocacy, and consultative efforts at all political and policy levels. The agency must view the participation of advocacy groups, along with that of individual claimants, as part of the organizational norm. It has been argued that responsiveness, or “skillful listening,” promotes accountability through the consideration of diverse points of view, reciprocal communication with stakeholders, and a deepened understanding

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of complex situations.90 One way of settling the problem of legitimacy in public administration is to adopt a model of “pragmatic collaboration with citizens.”91 The agency is uniquely situated to promote socially shared meanings, values, and norms. A conceptual shift acknowledging the continuing substantive relationship with advocacy groups would reduce the animosity exhibited in negative conflict, enhance institutional knowledge resources, and sustain a dynamic working model of human rights policy and implementation. Conclusion

Despite criticisms of the current regime, this study shows that the public interest is best served by an administrative body with multiple functions in advancing human rights policy and practice through the individual complaint-processing scheme, the power to initiate and investigate systemic complaints, policy consultation and development, and public education. Through its existence as an arm’s-length administrative body charged with administering human rights, the Commission brings legitimacy to the field of human rights advancement, and is effectively positioned to influence government in a way that special advocacy groups are not. On an inspirational note, one lawyer commented that while the public may be misguided as to the lack of inherent value in a comprehensive public human rights scheme, viewed in an international context, the Canadian conceptualization is exemplary. [T]here are times when I step back and look at what is being attempted here which is to change patterns of human behaviour which is stereotypical thinking or discriminatory thinking based on prohibited grounds that really come from very, very, deep social codes of human behaviour. Human rights regimes, in contrast, are just only several decades old. They are attempting to change very deeply embedded aspects of society. It is not surprising that you are going to encounter tremendous resistance and that, for instance, the regime itself will not be a priority for politicians who themselves are popularly elected and represent the democratic and perhaps misdirected views of other citizens ... The very fact that I’m able to do my job. The very fact that I do see my clients go through an education process. I do see respondents respond. I do see settlements occur. I do see Boards of Inquiry happen. Is it largely a positive sign? And you know it is happening in Canada at a pace that perhaps far outstrips many other regimes.

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And so this, what [Michael Ignatieff] calls the rights revolution, is really a revolution where we have actually got to the point that hopefully we have convinced, we have won the war of whether you should treat people differently and not on the basis of their skin colour or their gender or their social orientation or their disability. And when you really look around you internationally, many parts of the world don’t even agree on that ... the actual ground or the enforcement of the actual right doesn’t even exist. There is no human rights code. So you need these inspirational messages to really do the work you do.92

In this chapter, I have argued that although the individual complaint system has its limitations, contested meanings of the public interest in rights and rights enforcement support an argument that human rights remain a collective concern best represented in a public agency that synthesizes and implements these multiple interests in practice and policy. There is a tangled juxtaposition of contradictory interests and political pressures comprising the amalgam of collective interest. Provincial human rights commissions are embedded historically and politically in a savvy, critical, and vocal human rights community that they ignore at their peril. These intermediary groups seek a more influential role in human rights implementation and provide an important link between the agency and its publics. Human rights commissions must examine ways to enhance the collaborative role of these groups or risk ongoing challenges to their institutional legitimacy in individual cases, policy consultations, and the media. In terms of the institutional mandate, public consultations enhance the agency’s claim to represent the public interest. Conceptually reframing the interactive consultative process as communicative conflict is explored here for its potential to achieve better opportunities for intermediary participation in generating, exploring, and refining human rights values discourse. I argue that, to build legitimacy with special interest advocates, policy development must incorporate accountability and collaboration. Collaboration fosters transparency, enabling a clear connection to be traced between the general (statements of values embodying the public interest) and the particular (application in individual cases). Effectiveness can be redefined as a communicative value, countering the operational efficiency associated with bureaucratic rationality. In this fashion, organizational values may be legitimized through references to socially desirable political goals.

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Conclusion

Ontario was the first jurisdiction in Canada to establish a human rights commission responsible for administering discrimination complaints, reviewing and advising the government on legislation and policy compliance with the Human Rights Code, developing public education programs, and promoting equality rights and opportunities in the province. From the outset, the mandate of the Ontario Human Rights Commission has been deliberately broad, to provide a comprehensive scheme for the prevention of discrimination and the promotion of tolerance for the benefit of the community as a whole. While legal understandings of human rights continue to deepen, the courts of the modern era have consistently upheld the public policy goals of human rights legislation as vitally important and fundamental, and have also upheld the regulatory choice of an exclusive administrative regime to best represent the public interest. Human rights legislation conforms to an instrumental view of law as a mechanism for achieving social transformation. The legislation creates a statutory authority designed to educate, encourage, conciliate, and, when necessary, enforce a standard of interpersonal behaviour that recognizes the inherent dignity and equality of others. The instrumental view supports the marshalling of administrative forces to achieve a rational system for achieving systemic goals. Measurable and reviewable outcomes are the currency of administrative success. The framework for judicial review operates as a safeguard to ensure that the Commission does not exceed its jurisdiction. In addition, however, the Human Rights Commission was set up to advance, monitor, and be responsive to the public interest in achieving equality and anti-discrimination aims. This embeds the Commission in a social field that constrains discretionary policy making and permits evaluation of policy choices by interest groups. Participants in this field contest the rules governing

Conclusion

complaints under the Code through challenges to jurisdiction drawn from social, Canadian Charter of Rights and Freedoms, and international understandings of human rights, and through process challenges drawn from other legal fields, such as employment law and administrative law. The Ontario Human Rights Commission embodies a dynamic tension between these instrumental and social realms. What general themes underlie the domestic administration of human rights? The most challenging tensions may be found between the ideal (rights discourse) and the actual (operational imperatives). The Preamble to the Code and other official references link freedom from discrimination under the Human Rights Code to public policy goals and world recognition of inalienable human rights. Human rights protections continue to expand. There is a widespread popular discourse about human rights but little awareness of the relatively limited application of the Human Rights Code. Yet the Commission must manage its aspirational mission in the context of pressures to rationalize services, reduce costs, reduce caseload, and close cases. It does so within accountability frameworks addressing administrative fairness, fiscal responsibility, caseload management, and public transparency. The paradox of expanding human rights protection while limiting complaints in order to achieve case management goals underlies the particular ideological and operational contours of human rights administration in Canada. Accessibility, transparency, and accountability are evaluated through the lens of an efficient and effective service delivery system. Staff are subject to outcome-focused performance management systems. The caseload is controlled through rigorous gatekeeping. Critics perceive a disconnect between the organization of work at the Commission and the overall advancement of human rights in the province. The administrative body must also reconcile the contrasting ideas of perpetuation and change. As the Commission consolidates internal restructuring and renewed policy initiatives, it remains the subject of vociferous criticisms that it is failing in its mandate as interpreted by reform groups. Political pressures for reform and reinvention comprise a part of the social, political, and policy environment in which complaints are processed and in which staff and independent human rights advocates do their work. While the regulatory scheme for rights enforcement intentionally embodies both the public interest and the need for definitive responses in individual cases, the tension between public and personal goals sometimes remains unresolved. A lively negotiation between the general (public interest) and the particular (individual complainants) is frequently

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played out in settlement efforts and discretionary decision making about individual cases. This tension also informs the policy process, as discussions continue about the nature of the public interest and its representation in human rights enforcement. The central question I pose here is how the legal meaning of discrimination in individual cases is constructed from social facts and through interactions with legal actors and processes. In its enforcement functions, the Commission receives, screens, investigates, mediates, and has carriage of complaints before a tribunal or court. My analysis of the history, case law, policy materials, critical reviews, and field study data compiled through interviews with Ontario Human Rights Commission staff and human rights legal practitioners reveals that each of these sources contributes to an understanding of a legally actionable harm under the Ontario Human Rights Code and what ought to be done in response to such a violation. Within these contexts, the aim of this study has been to construct a view of complaint processing that juxtaposes the observations of participants with official and operational accounts. By doing this, we are able to see this complex administrative system from a new perspective: one that features the construction of legal meaning in day-to-day administrative practices. Discriminatory actions are embedded in ongoing social relationships and must be reconstituted as legal relationships. Through various selection and elimination processes, a pattern of institutionally recognized claims emerges from a vast sea of vulnerable interests and perceived injustices. It is hoped that this book will contribute to an understanding of the complex interplay among multiple competing perspectives and influences that construct and shape the processing of domestic discrimination cases. The socio-legal relations, local legal practices, and policy frameworks documented here intertwine to produce the current system for administering domestic human rights in Ontario. At its heart, this book examines the constitution of individual human rights complaints through administrative and professional practices. Law and policy are interpreted and implemented locally in the day-to-day interactions between administrative staff and complainants and between lawyers and advocates and their clients. These frontline staff and intermediaries are the link between complainants and the normative/ administrative/legal complex. In their interactions with clients, these individuals function at the interface between social relations and legal meaning and act as gatekeepers to a legal system. They translate the ideals of human dignity and mutual respect into legal claims. In doing so, staff and intermediaries play a pivotal role in a transformative process

Conclusion

constituting these claims within normative, specialist, and operational imperatives. This study encompasses the roles and understandings of administrative staff and human rights lawyers in constructing discrimination claims within institutional constraints, a professional practice community, and a deeply resonant rights discourse. The field study undertaken for this project contributes to the scarce socio-legal research on the organizational stresses faced by administrative agents whose mandate is premised on public access. Yngvesson’s study of court clerks examines how these clerks sort and make decisions about the community “troubles” that people bring to the court for legal resolution.1 Similarly, Ericson and Baranek’s study of the processing of the criminally accused2 shows how the structuring of criminal order and dependency is undertaken by police, Crown counsel, defence counsel, and judges. Although both studies focus on distinctive normative and legitimizing frameworks unique to specific legal systems, they expose a high-volume, partially discretionary environment where nonlawyers such as police and court clerks must make decisions with legal consequence about whether an endless spectrum of conflicts become “cases.” Unlike police, frontline administrative staff are often overlooked as legal actors, but their role in receiving, screening, interpreting, organizing, and discouraging complaints is a critical one. They manage interactions between the public and the agency and interpret the rules against discrimination through an overlay of technical rules and rigorous efficiency expectations. This book reveals how staff members reconcile their own varying degrees of interpretive discretion, their human rights ideals, their institutional objectives, and their day-to-day interactions with the public. Theirs is a stressful role managing multiple interests while distinguishing potentially actionable claims from routine discourtesies and indignities. Their low visibility belies their pivotal role in interpreting rules and determining complaints. With the centralization and rationalization of many administrative regimes, much more research can be done on the interactions and decision making of legal gatekeepers. The role of intermediaries is also notable in shaping legal complaints. Human rights lawyers see themselves as expert insiders acting to forcefully protect their clients’ interests. As Mather and colleagues observed, “[i]n the idealized professional vision, lawyers presumably regulate their work unconstrained by the rules of bureaucratic operation and free from market pressures to produce whatever consumers demand. The realities of practice prove different.”3 Little attention has been directed, however, to the social and institutional contexts in which the professional consciousness of lawyers is embedded. Independent human rights lawyers

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and advocates seek fulfillment of their professional aspirations in the knowledge that they are contributing to the advancement of human rights ideals. Yet they must engage in individual cases with a comprehensive regime for complaint enforcement in which their own role is indeterminate. This book details a surprising and frequently conflictual relationship between the Ontario Human Rights Commission as an institutional body and the conscious efforts of legal intermediaries to deploy their expert knowledge and make jurisdictional claims. Their interactions with the Commission and specialization in human rights work create shared experiences that help to shape group expectations and norms.4 While we might anticipate a community of interest between human rights lawyers and the Human Rights Commission, their divergent interests in how to define and eliminate discrimination and achieve equality of opportunity place them in opposition to each other. Furthermore, lawyers comprise a practice community, and their professional goal of ensuring a structural role for independent lawyers in the complaint process reinforces their ideological analysis that the Commission is failing in its social justice mandate. These perspectives infuse their interactions with individual clients and with Commission staff. Focusing on these intermediaries has exposed their multiple layers of motivation as they negotiate the boundaries of complaint administration. To call something a right or a rights violation is to make a claim of moral imperative. Complainants, or their advocates, seek to establish moral weight and legitimacy through the successful articulation of personal violation in a range of particular contexts as discrimination. Thus “human rights” becomes the conceptual mechanism through which a wide range of personal mistreatment is addressed. Meaning is a result of our interactions with others. In telling their stories to legal actors, human rights complainants, often unwittingly, initiate a process whereby context is lost and legal and administrative values and discourse displace social meanings. As Mayhew writes: [W]e have a vast array of disputes, disorders, vulnerabilities, and wrongs, which contain an enormous potential for the generation of legal actions. Whether any given situation becomes defined as a “legal” problem, or even if so defined, makes its way to an attorney or other agency for possible aid or redress, is a consequence of the social organization of the legal system and the organization of the larger society – including shifting currents of social ideology, the available legal machinery, and the channels for bringing perceived injustices to legal agencies.5

Conclusion

As Merry observed about the American court system, however, the law embodies a fundamental paradox between entitlement and dependency. The paradox is that the desire for social autonomy and individualism expands dependency on the legal ordering of social behaviours.6 Citizens seek to use the symbolic power of law to exercise social power. However, the desire to access this symbolic authority subjects them to systemic rules and practices, undermining their own control. In addition to legal censure, human rights enforcement is about community and interest-group politics and policy allocations. It is subject to competing interests that must be balanced by the agency in its various guises. The failure of citizens to anticipate the definitional function of engagement with the legal/administrative system provides a conduit for the imposition of legal and administrative norms and values. This framing and containment of personal claims is a site of struggle and resistance. Closer analysis of the “claiming” process shows how meaning, validity, and justiciability are explored, challenged, and constructed through encounters between frontline staff, lawyers, and potential human rights complainants. Resistance by clients over meaning and inclusion and debate between lawyers and staff over legitimacy and viability feature significantly in this process. Understanding of events is shaped and consolidated in these interactions. Establishing the normative validity of individual complaints is achieved by frontline human rights staff and independent lawyers interacting with, filtering, validating, and imposing boundaries on the meaning of complainants’ experiences. Social experiences are interpreted through a legal lens. Legal meaning is achieved through social processes. The Ontario Human Rights Commission has a mandate to advance the public interest in personal dignity and equal rights free from discrimination. But human rights policy and the bureaucracy implementing compliance have represented, since the bureaucracy’s inception, a particular and contested intertwining of political ownership among rights-seeking communities and human rights legal professionals. While we might expect to find a close affinity between the interests of rights advocacy groups and the goals of the Commission, the two sides appear to be locked in endless combat over jurisdiction. Chapter 4 explores contested meanings of the public interest, and it bears restatement that the construction of actionable rights and wrongs under the Code are a consequence of both institutional and social ideologies. The dialectical tensions between them will continue to determine not only new grounds but also new approaches to combating the social evil of discrimination.

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136 Conclusion

To build legitimacy with special interest advocates, however, I argue that OHRC policy development must incorporate accountability and collaboration. Public consultations enhance the agency’s claim to represent the public interest. A more significant consultative role for intermediaries is proposed, one that would honour the critical contribution of these groups in determining the future of publicly accessible human rights enforcement. Given the historical relationships with interest groups and the current levels of dissatisfaction with the conduct of the Commission on virtually all fronts, it is inevitable that collaboration will involve communicative conflict. Collaborative consultation, however, shifts the struggle over the shape of rights enforcement away from complaint processing and into the realm of policy development. This is consistent with the engagement of intermediary groups within other normative frameworks, such as political lobbying, building international networks, making legislative submissions, and contributing to official reviews. Participation across a spectrum of activities will shape the future engagement of intermediaries with the Commission more effectively than current adversarial stances focusing on complaint handling. From a research perspective, the policy process remains a fertile area for exploring the relationships among legislation, policy, and rules and between expert and ordinary understandings of legal meaning. As a contribution to national debates on the future of the public administration of human rights, this book does not espouse a reform agenda. Rather, it makes a preliminary contribution towards identifying the values that a human rights system should uphold. The Commission must act consistently with its own Human Rights Code in promoting respect for the diverse groups its serves. In its conduct, it must reflect the values of the Ontario Human Rights Code in fostering the personal dignity and worth and equal rights and opportunities of citizens. It must foster a climate of understanding and mutual respect. In principle, a publicly accessible individual complaint-handling system honours the essential dignity and equality of all citizens. The body of research on Canadian human rights commissions shows, however, that individual complainants often misunderstand, are frustrated, or are defeated by the current system. As asserted in Chapter 2 and elsewhere, lay concerns about being heard in legal processes point to the need for the development of administrative values that are consonant with this aspect of the public interest. Chief among such values is accessibility – to both investigative resources and authoritative decisionmaking processes. I am not necessarily endorsing direct access to a

Conclusion

hearing. Rather, the administrative process must be rehabilitated by the infusion of fairness without ascent into formalism. Use of conciliatory measures is an invaluable dimension of participatory justice and the avoidance of legal formalism. Alternate dispute resolution measures support addressing a harm or problem in its context, an important value in addressing the impact of discriminatory actions and referred to by the Supreme Court of Canada in both Law v. Canada (Minister of Employment and Immigration)7 and Baker v. Canada (Minister of Citizenship and Immigration).8 Conciliation functions as an educational process far beyond the settlement of an individual complaint. Openness and transparency as administrative virtues have been called for since the Cornish Report,9 and form part of the value schema articulated under the doctrine of fairness outlined in Baker. Openness contributes to a climate of understanding and mutual respect consistent with the Preamble to the Code. A generous version of administrative fairness would provide for greater informal exchanges with complainants far earlier than during the pursuit of an investigation. Keeping people well informed will give them a greater sense of involvement and participation in their own complaints, and will reduce the perception that individuals require independent legal counsel to get anywhere with the Commission. As this book nears publication, the Ontario legislature is considering a government bill to eliminate the individual complaint-handling function of the Commission. Political partisans from varying perspectives will rejoice in this move for their own reasons: it represents a privatization of complaint carriage, an enhanced role for specialty legal clinics, the offloading of a public mandate onto the not-for-profit sector, and a distinct move towards formalization of human rights complaints. I find myself in a minority in disparaging such a development. Consistent with the study described in this book, I am concerned about the premature legalization of individual and social harms. One attraction of the Commission processes as they are presently configured is the assurance of neutral (non-advocate, non-adversarial) communicative interactions, which open up the possibility of contextual problem solving. Skip this step and you are before an adjudicator, where issues are rarely resolved but rather ruled upon, representing both a disempowerment of the parties and a considerably narrower constellation of remedies, none of them necessarily engaging the public interest. Considering it from this perspective, one can argue that the decoupling of the individual complaint from the other Commission functions could

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138 Conclusion

result in the undermining of public interest goals by encouraging a privatized view of wrongs that impacts not only the individual but also the workplace environment and the public atmosphere more broadly. While this study was not an investigation of the limits of rights discourse, the issues of gatekeeping, delay, representation, and reform certainly reveal the limitations of the system of domestic rights investigation and enforcement as currently conceived. It must be said, however, that as sophisticated articulations of constitutionally protected rights emanate from the courts, and as laypersons perceive a broad spectrum of wrong treatment as at least potentially actionable discrimination or harassment, the commission system cannot be expected to bear the weight of responsibility for achieving anti-discrimination social goals. Government-sponsored anti-discrimination enforcement must be situated within a broader set of common practices, such as municipal accessibility plans,10 progressive employment legislation, in-house corporate and employer anti-discrimination and anti-harassment “best practices,” and community-based educational initiatives. A healthy network of antidiscrimination practices is the best assurance of a vital normative fabric of human rights protections.

Appendix Excerpts from the Ontario Human Rights Code

The Preamble to the Ontario Human Rights Code (R.S.O. 1990, c. H.19) reads: Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations; And whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province; And whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario ...

The provision governing the functions of the Commission reads: 29. It is the function of the Commission, to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law; to promote an understanding and acceptance of and compliance with this Act; to recommend for consideration a special plan or program ...;

140 Appendix: Excerpts from the Ontario Human Rights Code

to develop and conduct programs of public information and education and undertake, direct and encourage research designed to eliminate discriminatory practices that infringe rights under this Act; to examine and review any statute or regulations, and any program or policy ... that in its opinion is inconsistent with the intent of this Act; to inquire into incidents of and conditions leading or tending to lead to tension or conflict based upon identification by a prohibited ground of discrimination and take appropriate action to eliminate the source of tension or conflict; to initiate investigations into problems based upon identification by a prohibited ground of discrimination that may arise in a community, and encourage and co-ordinate plans, programs and activities to reduce or prevent such problems; to promote, assist and encourage public, municipal or private agencies, organizations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination; to enforce this Act and orders of the board of inquiry; and to perform the functions assigned to it by this or any other Act.

Notes

Introduction The epigraph is taken from remarks made by Mr. Justice McRuer, former Chief Justice of the High Court of Ontario, in the course of his Royal Commission Inquiry into Civil Rights in the Province of Ontario (1968), as quoted in N. Duval Hesler, “Human Rights Adjudication” in W. Tarnopolsky, J. Whitman, and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice (Montreal: Canadian Institute for the Administration of Justice, Les Éditions Thémis, 1993) 507 at 514. 1 Examples include: OHRC, “Strengthening Ontario’s Human Rights System: What We Heard” (October 2005); Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000) [La Forest Report]; J. Turner and L. Brown, Human Rights Dispute Resolution: Community Voices (Report to the Vancouver Island Human Rights Coalition) (Victoria: British Columbia Human Rights Commission, 2000); Canada, Report of the Auditor General of Canada 1998 (1998), online: Office of the Auditor General of Canada, http:// www.oag-bvg.gc.ca, c. 10; William Black, Human Rights Review: Report on Human Rights in British Columbia (Vancouver: Province of British Columbia, 1994) [Black Report]; Alberta Human Rights Review Panel, Equal in Dignity and Rights: A Review of Human Rights in Alberta (Edmonton: Alberta Human Rights Commission, 1994) [O’Neill Report]; J.M. Kaye, “Reform of the Ontario Human Rights Commission” (1999) 13 Can. J. Admin. L. & Prac. 51; Coalition for Reform of the Ontario Human Rights Commission, Brief, “Dysfunction in the Human Rights Complaints System” (November 1995) [unpublished, copy on file with author]; S.P. Chotalia, “Human Rights Legislation: Does the Administrative Structure Enhance the Objectives of the Legislation?” (1993) 7 Can. J. Admin. L. & Prac. 67; OHRC, “Report of the Organizational Health and Effectiveness Committee” (January 1993) [OHRC, “OHEC Report”]; OHRC, “Non-Legislative Options for Improving Enforcement Procedures at the Ontario Human Rights Commission” (September 1993) [OHRC, “Enforcement Options”]; OHRC, “Submission to Ontario Human Rights Code Review Task Force” (May 1992) [OHRC, “Submission”]; Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Policy Services Branch, Ministry of Citizenship,

142 Notes to pages ix-2

2 3

4 5

1

2 3 4

5

1992) [Cornish Report]; Ontario Human Rights Code Review Task Force, “Getting Human Rights Enforced Effectively: An Issues Paper” (Toronto: Government of Ontario, 1992); D. Young, “The Handling of Race Discrimination Complaints at the Ontario Human Rights Commission” (unpublished report to the AntiRacism Advisory Committee, Ontario Human Rights Commission, 1992). R.S.O. 1990, c. H.19. I adopt the term from L. Sossin, “The Politics of Soft Law: How Judicial Decisions Influence Bureaucratic Decision-Making in Canada” in S. Halliday and M. Hertogh, eds., Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (London: Cambridge University Press, 2004) 129. Ibid. The Board of Inquiry under the Ontario Human Rights Code was renamed the Human Rights Tribunal of Ontario, effective 26 November 2002: Lawyers Weekly (20 December 2002) 32. This book will follow common parlance and continue to use both “Board” and “Tribunal” interchangeably. Chapter 1: Public Administration of Human Rights Enforcement The epigraph is taken from Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 81. I. Abella and H. Troper, None Is Too Many, 3d ed. (Toronto: Key Porter Books, 2000) at xii. See also R. Bruce Shepard, Deemed Unsuitable (Toronto: Umbrella Press, 1997); Agnes Calliste, “Race, Gender and Canadian Immigration Policy: Blacks from the Caribbean 1900-1932” (1993-94) 28 Journal of Canadian Studies 131; S. Imai, “Canadian Immigration Law and Policy: 1867-1935” (L.L.M. Thesis, Osgoode Hall Law School, York University, 1983) [unpublished]. By 1962, new immigration regulations shifted to individual skills as the chief admission criterion, officially ending race and nationality as reasons for exclusion. See R.W. Winks, The Blacks in Canada: A History (New Haven, CT: Yale University Press / Montreal, and Kingston, ON: McGill-Queen’s University Press, 1971) at 445. Abella and Troper, supra note 1 at 6. Canadian Institute of Public Opinion, Public Opinion News Release (30 October 1946), as cited in Abella and Troper, supra note 1 at 231-32, n. 82. J.W. St. G. Walker, Racial Discrimination in Canada: The Black Experience (Ottawa: Canadian Historical Association, 1985) at 16. See also C. Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: Osgoode Society for Canadian Legal History, 2001) [Backhouse, Colour-Coded] at 138-39; C. Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Women’s Press and the Osgoode Society, 1991) [Backhouse, Petticoats and Prejudice]; C.J. Mosher, Discrimination and Denial: Systemic Racism in Ontario’s Legal and Criminal Justice Systems 1892-1961 (Toronto: University of Toronto Press, 1998); S. Bolaria and P. Li, Racial Oppression in Canada, 2d ed. (Toronto: Garamond, 1988). While the history of discrimination in Canada is widespread and the research literature is now becoming exhaustive, the summary that follows emphasizes the situation in Ontario as much as possible. Until 1948, the Federal Franchise Act 1898, S.C. 1898, c. 14, s. 5(a) provided that qualifications entitling any person to vote were those established by their province of residence, thereby excluding, in BC, “Chinese, Japanese, Hindu and other Asiatics,” Doukhobors, Hutterites, and Mennonites; Chinese in Saskatchewan; and non-English, French, German, or Scandinavian speakers in Manitoba. Most

Notes to pages 2-3

6

7

8 9

10

11 12 13 14

15

16 17 18 19

provinces excluded First Nations residents as well. Eligibility for public office was normally premised on one’s being inscribed on the local voters’ list. As cited in Backhouse, Colour-Coded, supra note 4 at 162, n. 101. Restrictions on Chinese locating businesses competitively were widespread, and inflated insurance requirements were levied against Jewish businesses. See A.B. Chan, Gold Mountain (Vancouver: New Star Books, 1983). For case law and extensive literature, see Backhouse, Colour-Coded, supra note 4 at 138, n. 20. Black and White children in Nova Scotia and Ontario could be and were relegated to separate schools by law; see An Act Respecting Separate Schools, R.S.O. 1887, c. 227. Racialized school segregation was not repealed in Ontario until 1964, by An Act to Amend the Separate Schools Act, S.O. 1964, c. 108, as cited in Backhouse, Colour-Coded, supra note 4 at 250. See Abella and Troper, supra note 1 at 51; Backhouse, Colour-Coded, supra note 4 at 251, n. 59. For the interwar situation for Blacks, see Walker, supra note 4 at 15; for postwar and union membership, see Winks, supra note 1 at 422-27; also An Act to Amend the Factory, Shop and Office Building Act, S.O. 1914, c. 40, s. 2, proclaimed S.O. 1920, repealed S.O. 1947, c. 102, s. 1, prohibiting the employment of White women by Chinese businessmen. For the curious legislative history of this provision, see Backhouse, Colour-Coded, supra note 4 at 147, n. 60. In Re Drummond Wren, [1945] 4 D.L.R. 674 (Ont. H.C.), MacKay J. held the covenant excluding conveying the property in question “to Jews or to persons of objectionable nationality” void for being against public policy. Two months earlier, however, in Re McDougall and Waddell, [1945] 2 D.L.R. 244 (Ont. H.C.), Chevrier J. reluctantly found no legal restriction to the implementation of a similarly restrictive covenant, including the newly enacted Racial Discrimination Act. Cited by Wilson J. in Bhadauria v. Seneca College of Applied Arts and Technology, [1981], 2 S.C.R. 181. In 1950, the Ontario Conveyancing Act and Law of Property Act were amended to forbid racially restrictive covenants. See Winks, supra note 1; Abella and Troper, supra note 1. Franklin v. Evans (1924), 55 O.L.R. 349. Christie v. York Corporation, [1940] 1 D.L.R. 81 (S.C.C.). Racial Discrimination Act, S.O. 1944, c. 51. The first anti-discrimination legislation in Ontario, the Racial Discrimination Act of 1944, was a quasi-criminal statute dealing exclusively with the prohibition of racially and religiously discriminatory signs, advertisements, and representations. Enforcement was commenced in court by private prosecution but, at the discretion of the Attorney General, penalties were fines paid to the state. Winks, supra note 1 at 419-22; A. Bruner, “The Genesis of Ontario’s Human Rights Legislation” (1979) 37 U.T. Fac. L. Rev. 236, recounts that Jewish, Black and other minority and trade union activists would challenge the discriminatory denial of services by appearing in groups and setting up test cases to document and publicize this treatment; see also H.W. Sohn, “Human Rights Legislation in Ontario: A Study of Social Action” (PhD diss., Faculty of Social Work, University of Toronto, 1975) [unpublished]. Supra note 10. Noble and Wolf v. Alley, [1948] 4 D.L.R. 123 (Ont. H.C.). Noble and Wolf v. Alley, [1949] 4 D.L.R. 375 at 386 (Ont. C.A.). Noble and Wolf v. Alley, [1951] 1 D.L.R. 321 (S.C.C.).

143

144 Notes to pages 3-5

20 For helpful commentary on the history of this case, see K. Pearlston, “A Restricted Country? The Racist Legacy of Restrictive Covenants” (April 1996) [unpublished, on file with author] [Pearlston, “A Restricted Country?”]. 21 Bruner contends that picketing of the Toronto Icelandia skating rink in 1947 to protest its exclusion of Jews and Blacks resulted in anti-discrimination bylaws in Toronto and Hamilton: Bruner, supra note 15 at 239, n. 22. 22 Ibid. at 237. 23 Backhouse, Colour-Coded, supra note 4 at 252, n. 69, citing S. Grizzle, My Name’s Not George: The Story of the Brotherhood of Sleeping Car Porters in Canada (Toronto: Umbrella Press, 1998). 24 Bruner, supra note 15 at 240. Another example is given by Eberlee and Hill. In 1964, T.M. Eberlee (Deputy Minister of Labour) and D. Hill (the first director of the Ontario Human Rights Commission, 1962-71, and then chair, 1971-75) reported that the myth of diminished property values associated with minority residents was challenged by residents in many areas, who even signed petitions advising landlords that they had no objection to minority neighbours. T.M. Eberlee and D. Hill, “The Ontario Human Rights Code” (1964) 15 U.T.L.J. 448 at 453. 25 G. Egerton, “Entering the Age of Human Rights: Religion, Politics, and Canadian Liberalism 1945-50” (2004) 85 Canadian Historical Review 451. 26 Ibid. 27 S.O. 1954, c. 28. 28 In 1961, its coverage was extended to multiple housing. 29 R. v. Emerson (1955), 113 C.C.C. 69 (Co. Ct.); R. v. McKay (1955), 113 C.C.C. 56 (Co. Ct.) [McKay]. 30 McKay, supra note 29 at 66. 31 I thank my colleague, Professor Karen Pearlston of University of New Brunswick, Faculty of Law, for sharing her revealing research into these two cases. See K. Pearlston, “Roots of Complainant Dissatisfaction in Early Ontario Human Rights Procedures” (December 1994) [unpublished, on file with author] [Pearlston, “Roots of Complainant Dissatisfaction”]. See also A. Borovoy, “The Fair Accommodation Practices Act: The ‘Dresden Affair’” (1956) 14 U.T. Fac. L. Rev. 13 [Borovoy, “The ‘Dresden Affair’”]. The conviction is reported as R. Ex Rel. Nutland v. McKay (1956), 115 C.C.C. 104. 32 Eberlee and Hill, supra note 24. 33 For a more detailed history of the evolution of Ontario human rights legislation into its current form, see P.A.N. Gupta, “Reconsidering Bhadauria: A Reexamination of the Roles of the Ontario Human Rights Commission and the Courts in the Fight against Discrimination” (L.L.M. Thesis, University of Toronto, 1993) [unpublished]; I. Hunter, “Human Rights Legislation in Canada: Its Origin, Development and Interpretation” (1975-76) 14-15 West. Ont. L. Rev. 21; W. Tarnopolsky, “The Iron Hand in the Velvet Glove” (1968) 46 Can. Bar Rev. 565. 34 S.O. 1951, c. 24. 35 R.S.O. 1950, c. 194, ss. 14-17. See also Ontario Legislative Debates, vol. 29 (13 March 1951) at A-10, as cited in Gupta, supra note 33 at 10. 36 See also the Female Employees Fair Remuneration Act, R.S.O. 1960, c. 132. 37 G. Heckman, “A Study of Administrative Gatekeeping in Canadian Human Rights Enforcement” (L.L.M. Thesis, Queen’s University, 1999) [unpublished] at 153-54.

Notes to pages 5-7

38 An Act to Establish the Ontario Anti-Discrimination Commission, S.O. 1958, c. 70. 39 See OHRC, “Submission to the Ontario Human Rights Code Review Task Force” (May 1992) at 4 [OHRC, “Submission”]. 40 Eberlee and Hill, supra note 24 at 451. 41 Examples were discrimination in house rental, discriminatory employment form of a large private social welfare organization, and voluntary compliance by other businesses: ibid. 42 OHRC, Life Together: A Report on Human Rights in Ontario (Toronto: Queen’s Printer for Ontario, 1977) [OHRC, Life Together]. 43 U.S. 424 (1971). 44 As cited in OHRC, Annual Report 1996-1997 (Toronto: Government of Ontario, 1997) at 7. 45 OHRC, Life Together, supra note 42 at 20. 46 Board of Governors of Seneca College v. Bhadauria, [1981] 2 S.C.R. 181 [Bhadauria]. 47 Ibid. at 195. 48 I am aware that this exclusivity is an increasingly problematic assertion. The development and increasing convergence between human rights jurisprudence and labour jurisprudence, and between anti-discrimination jurisprudence and Charter jurisprudence, makes for a great deal of discussion as to the future exclusive scope of provincial anti-discrimination schemes. For example, many labour grievances ultimately heard by labour relations tribunals also allege human rights violations. For a discussion of some of these jurisdictional tensions, see D. Mullan, “Tribunals and Courts – The Contemporary Terrain – Lessons from Human Rights Regimes” in G.A. Smith, J. Dumont, and H. Dumont, eds., Justice to Order: Adjustment to Changing Demands and Co-ordination Issues in the Justice System in Canada (Montreal: Canadian Institute for the Administration of Justice, Les Éditions Thémis, 1999) 119. 49 The Human Rights Board of Inquiry is now officially referred to as the Human Rights Tribunal: Lawyers Weekly (20 December 2002) 32. 50 R.B. Howe, “The Evolution of Human Rights Policy in Ontario” (1991) 24 Canadian Journal of Political Science 783 at 793. 51 K. Roach, “The Role of Litigation and the Charter in Interest Advocacy” in F. Seidle, ed., Equity and Community: The Charter, Interest Advocacy and Representation (Montreal: Institute for Research on Public Policy, 1993) 159 at 160. 52 K. Pearlston, for example, attributes the phrase “gentleman bigot” to A. Borovoy, then Director of the Ontario Labour Committee for Human Rights and the Toronto and District Labour Committee for Human Rights, in an undated pamphlet (apparently from the early 1960s) called “Human Rights and Racial Equality – The Tactics of Combat” (Toronto: Ontario Woodsworth Memorial Foundation, n.d.) at 8: “The Canadian bigot is in a class of his own. He is distinctly not a hate monger. On the contrary, he is normal and nice, a devoted apostle of Emily Post. The ‘gentleman bigot,’ as I like to call him, is a respectable employer who has nothing personal against Negroes or Jews. In fact, he likes Negroes and Jews. He simply cannot hire them, because his customers might complain. His concern is simply business. On the balance of values, he would prefer to risk a little of someone else’s dignity than a little of his own money” (emphasis in original): as cited in K. Pearlston, “Roots of Complainant Dissatisfaction,” supra note 31. W. Tarnopolsky described the remedial approach as “The Iron Hand in the Velvet Glove”: supra note 33.

145

146 Notes to pages 7-8

53 R.B. Howe and M. Andrade, “The Reputations of Human Rights Commissions in Canada” (1994) 9 C.J.L.S. 1 at 18. 54 As part of a broad movement to amend the functioning of administrative agencies in Ontario following the influential 1968 report of the Royal Commission Inquiry into Civil Rights in Ontario, authored by J.C. McRuer, former Chief Justice of the Ontario High Court, the Code was amended to provide that the complainant became a party to any complaint before a Board, although the Commission retained carriage of the complaint: Civil Rights Statute Law Amendment Act, S.O. 1971, c. 50 s. 14b(1)(a). 55 Complete revision in 1981 provided more procedural rights by requiring the Commission to provide written reasons and to provide complainants with a right to an administrative appeal from a decision not to proceed with a complaint: An Act to Revise and Extend Protection of Human Rights in Ontario, S.O. 1981, c. 53. 56 Howe, supra note 50 at 800-1. See also S. Day, who writes acerbically that “until [1986], the Ontario Human Rights Commission had a staff of 65 and a budget less than the Ontario government spent at the same time on moose management”: “Impediments to Achieving Equality” in S.L. Martin and K.E. Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987) 6 at 8. 57 M.K. Joachim, “Reform of the Ontario Human Rights Commission” (1999) 13 Can. J. Admin. L. & Prac. 51 at 84-87 and table 3 at 115. 58 All figures from OHRC, Annual Reports. 59 Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Policy Services Branch, Ministry of Citizenship, 1992) at 18 [Cornish Report]. 60 In 2001-02, staff allocations totalling 127 were as follows: Chief Commissioner’s Office, 3; Executive Director’s Office, 10; Legal Services Branch, 15; Policy and Education Branch, 13; Mediation and Investigation Branch, 79 (see below); Corporate Services, 7. “Mediation and Investigation Branch” is the new name for the former “Regional Services and Systemic Investigation Branch.” Its total staff includes: Director’s Office, 3; Mediation Services, 27; Investigation Services, 27; Intake and Inquiry Services, 22. All figures supplied by OHRC, Policy and Education Branch Officer, personal correspondence, 11 September 2002. M.K. Joachim lists the total number of employees in 1997 as 125, as provided by the OHRC: supra note 57 at 79, n. 91. 61 Howe, supra note 50 at 801. 62 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. 63 Ironically, we appear to be a nation proud yet ignorant. A recent Leger Marketing poll found that one-half of Canadians, nationwide, could not name any of their rights guaranteed under the Charter: M. Jacobs, “Albertans Know Their Rights Better Than Most” Edmonton Sun (19 November 2002) A11. 64 By 1969, after seven years of enforcing the consolidated Code, the Commission had entertained 12,000 inquiries and investigated 2,000 complaints: D. Hill, “The Role of a Human Rights Commission: The Ontario Experience” (1969) 19 U.T.L.J. 390. In 1991-92, the Commission handled 92,000 public inquiries, 63 percent more than in the previous year: OHRC, “Submission,” supra note 39 at 7.

Notes to pages 9-12

65 Re Ontario Human Rights Commission and Simpsons-Sears Ltd. (O’Malley) (1984), 23 D.L.R. (4th) 321 at 329; Robichaud v. Canada (Treasury Board) (1987), 40 D.L.R. (4th) 577 at 581. See also A. Borovoy, When Freedoms Collide: The Case for Civil Liberties (Toronto: Lester and Orpen Dennys, 1988) at 221-23 [Borovoy, When Freedoms Collide]. 66 This discussion refers to the most extensive reports: Cornish Report, supra note 59; Howe and Andrade, supra note 53; William Black, Human Rights Review: Report on Human Rights in British Columbia (Vancouver: Province of British Columbia, 1994) [Black Report]; Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000) [La Forest Report]; D.K. Lovett and A. Westmacott, “Human Rights Review” (Administrative Justice Project) (Victoria: Ministry of Attorney General, 2001); and Canada, Report of the Auditor General of Canada 1998 (1998), online: Office of the Auditor General of Canada, http://www.oag-bvg.gc.ca. 67 Ontario Human Rights Code Review Task Force, “Getting Human Rights Enforced Effectively: An Issues Paper” (Toronto: Government of Ontario, 1992). 68 The Task Force received 135 written submissions and 750 oral presentations in seven Ontario cities: Cornish Report, supra note 59 at 20. 69 The Task Force held strategic consultations with major Ontario unions and representatives of various equality-seeking groups. Much research it solicited was carried out by these same groups, including the Centre for Equality Rights in Accommodation, the Ontario Coalition Against Poverty, the Urban Alliance on Race Relations, and the Inter-Clinic Workgroup. In addition, it was a coalition of forty community organizations, styling themselves the Coalition for Human Rights Reform, that had called for the establishment of the Task Force: ibid. at 8, 15. 70 Ibid. at 20-28. 71 D. Young, “The Handling of Race Discrimination Complaints at the Ontario Human Rights Commission” (unpublished report to the Anti-Racism Advisory Committee, Ontario Human Rights Commission, 1992) at 27. 72 This tension has been articulated in studies of law for some time. Karl Llewellyn and E.A. Hoebel wrote in 1941: “Law proposes to channel behavior in such a manner as to prevent or avoid conflict; and law does in important degree, so channel behavior ... But there is more to law than intended and largely effective regulation and prevention. Law has the peculiar job of cleaning up social messes when they have been made. Law thus exists also for the event of breach of law”: The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941) at 20. 73 Ibid. at 3. 74 Ibid. 75 Ibid. at 13-15. 76 In their book Restraining Equality, R.B. Howe and D. Johnson refer to the study done earlier by Howe and Andrade in noting that although Ontario was one of the higher-funded of provincial commissions, with higher interest group activity, the perception of these groups was that their own influence on the Commission was ineffective: Restraining Equality: Human Rights Commissions in Canada (Toronto: University of Toronto Press, 2000) at 87-88. 77 As cited in Lovett and Westmacott, supra note 66 at 155-56. 78 Black Report, supra note 66 at 27.

147

148 Notes to pages 12-16

79 Human Rights Code, R.S.B.C. 1996, c. 210. 80 The Continuing Legal Education Society of British Columbia, Human Rights – 2005 Update (Vancouver: Continuing Legal Education Society of British Columbia, 2005) at 1.1.1-1.2.3. For BC Human Rights Coalition legal representation criteria, see http://www.bchrcoalition.org. 81 Continuing Legal Education Society of British Columbia, supra note 80 at 1.2.2. 82 The International and Human Rights Law Association at the University of Victoria released its report Route 64 – Another Detour on the Road to Equality: An Examination of the Current Human Rights System in British Columbia, edited by D. Cousineau, in 2006. These observations are from the essay by H. Dixon, “You’re on Your Own: The Impact of Eliminating Human Rights Investigations in British Columbia” at 50. 83 La Forest Report, supra note 66 at 46. 84 Ibid. at 16. 85 Ibid. at 51. 86 The Canadian Human Rights Commission receives about 50,000 inquiries a year: ibid. at 55. 87 Created by 1998 amendments to the Canadian Human Rights Act, R.S. 1985, c. H6, s. 25; as amended 1998, c. 9, s. 19. 88 In 2001-02, the Ontario Commission received 64,154 inquiries, sent out 4,618 intake questionnaires, and had 2,438 complaints filed. This represented a 37 percent increase from the previous year: OHRC, Annual Report 2001-2002 (Toronto: Government of Ontario, 2002) at 25. The Canadian Human Rights Commission received close to 35,000 inquiries in 2000, resulting in 1,238 complaints, with 562 signed complaints proceeding to investigation and decision making: Canadian Human Rights Commission, Annual Report 2000 (Ottawa: Minister of Public Works and Government Services, 2001) at 24, 39. In 2001, the CHRC received 45,000 inquiries, with 1,485 complaints resulting in 574 that proceeded to investigation: Annual Report 2001 (Ottawa: Minister of Public Works and Government Services, 2002) at 27, 41. In comparison, Lovett and Westmacott write that the BC Commission for Investigation and Mediation Compliance program receives approximately 20,000 telephone inquiries annually with respect to potential complaints. Approximately 3,000 complaint forms are sent out, with 1,500 written complaints received annually. Half of these are screened out as involving weak allegations or as complaints more appropriately dealt with in another forum. Approximately 750 are referred to human rights officers for investigation: supra note 66 at 60. The BC Human Rights Commission reported on its website that in 2001-02, it received 814 new complaints. Some of these may have been referring to overlapping or multiple complaints, for example, against both a supervisor and an employer about the same situation: http://www. bchrc.gov.bc.ca (accessed on 14 March 2003). I note that this site had not been recently updated. With the abolition of the B.C. Commission in 2002, complaint statistics are no longer as easily comparable across jurisdictions. 89 In 2001-02, the Commission referred 3 percent of cases to a Board of Inquiry: OHRC, Annual Report 2001-2002, supra note 88 at 47. 90 The same criticism has been levied against the Canadian Human Rights Commission: see the La Forest Report, supra note 66 at 51. In the broad context of governmental action against an individual, regulating access to a hearing has

Notes to page 16

91

92

93

94

95

been referred to as “rationing”: H.J. Friendly, “Some Kind of Hearing” (1975) 123 U. Pa. L. Rev. 1267. The requirements of procedural justice are more stringent at the quasi-judicial end of the continuum than at the purely administrative. Criteria include: Does the statutory language contemplate a hearing? Is the decision binding and enforceable or simple advice or recommendation? Is the basis for decision making the application of a pre-existing rule to a disputed set of facts or policy decisions in each case? Does the consequence affect individual rights or interests? Are there public policy considerations? See Dickson J. (as he then was) in M.N.R. v. Coopers and Lybrand (1978), 12 D.L.R. (3d) 1, [1979] 1 S.C.R. 495. Dickson J. adds (at 7) that “the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially.” La Forest Report, supra note 66 at 46. It has been held that the decision to dismiss a complaint under the Canadian Human Rights Act must be made on a quasijudicial basis because it is “in a real sense” determinative of rights: Re Latif v. CHRC (1979), 105 D.L.R. (3d) 609 (F.C.A.). J. Birenbaum and B. Porter, “Right to Adjudication under the CHRA and How to Remedy It” (17 November 2002), online: http://canada.justice.gc.ca/chra/en/ screen2.html. Ontario Human Rights Code, R.S.O. 1995, c. H.19, s. 34: “Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered.” At this writing, Ontario has proposed a government bill to amend its Human Rights Code. One of the bill’s features is to eliminate the intake, investigative, and settlement roles of the Commission with respect to individual complaints and provide for complainants to apply directly to the Tribunal for a remedy: Bill 107, An Act to amend the Human Rights Code, 2d Sess., 35th Leg., Ontario, 2006 (2d reading, 6 June 2006). As was mentioned earlier, British Columbia has abolished its Human Rights Commission, with provision for complainants to proceed directly to the Tribunal, which exercises its own screening functions. In addition, the Human Rights Clinic, operated jointly by the BC Human Rights Coalition and the Community Legal Assistance Society, provides education, intake, advocacy, and legal representation for complainants who fit their criteria. The Clinic services are contracted by the BC Ministry of Attorney General. The University of Victoria Law Centre runs a legal clinic for eligible respondents. See Continuing Legal Education Society of British Columbia, supra note 80. The La Forest Report made recommendations for access to a permanent tribunal part of a reform package that would include a specialized legal clinic model to represent claimants and provision of tariff-based legal representation for those respondents able to establish financial need. Saskatchewan has introduced provisions for complainants who have been screened out by the Saskatchewan Commission to initiate a complaint directly with a tribunal at their own expense. The tribunal may exercise discretion whether or not to hear the complaint (personal communication with Chief Commissioner Donna Scott, 9 December 2002). Complainants whose complaint is not pursued by the Commission may also

149

150 Notes to pages 17-20

96

97 98 99 100 101

102 103 104 105

106 107

108

109

apply at their own expense to the Quebec Human Rights Tribunal: Charte des droits et libertés de la personne, R.Q., c. C-12, s. 84. He notes: “The quest for optimal legal mechanisms for handling disputes once these other elements of interpersonal conflicts [e.g., state, social, or community interest] are acknowledged significantly complicates cost/benefit analysis in the realm of civil disputing”: R.A. Macdonald, Study Paper on Prospects for Civil Justice (Toronto: Ontario Law Reform Commission, 1995) at 45. W. Felstiner, “Influences of Social Organization on Dispute Processing” (1974) 9 Law & Soc’y Rev. 63 at 63 n. 1 (references omitted). Standing Committee on Government Agencies, Report on Agencies, Boards and Commissions (No. 20) (Toronto: Legislative Assembly of Ontario, 1994) at 76. Now called “A Legal Resource Centre for Persons with Disabilities.” Standing Committee, supra 98 at 77. See Johnson v. Hamilton (City), [1991] O.J. No. 1077, where the Court held that the pressure to settle exerted by the Commission amounted to coercion and was completely inappropriate, as cited in Standing Committee, supra note 98 at 69. See also Rosenberg J. (concurring) in Johnson v. Corporation of the City of Hamilton (1992), 15 C.H.R.R. D/254 at D-1255 (Ont. Div. Ct.), who wrote: “In my view this letter clearly says to Mrs. Johnson, ‘we have decided not to request the Minister of Labour to appoint a board of inquiry and therefore you had better accept the settlement.’ In my view this is inappropriate coercion by the Human Rights Commission for a number of reasons.” Lovett and Westmacott, supra note 66 at 68. H. Dixon, supra note 82 at 59. Cornish Report, supra note 59 at 87. See also K. Ruff, “A Critical Survey of Human Rights Acts and Commissions in Canada” in J. Tarnopolsky, J. Whitman, and M. Oullette, eds., Discrimination in the Law and the Administration of Justice (Montreal: Canadian Institute for the Administration of Justice / Les Éditions Thémis, 1993) 24; Howe and Andrade, supra note 53; Coalition for Reform of the Ontario Human Rights Commission, Brief, “Dysfunction in the Human Rights Complaints System” (November 1995) [unpublished, copy on file with author]. See, e.g., Black Report, supra note 66; La Forest Report, supra note 66. Although the Cornish Report envisaged community-based Equality Rights Centres staffed by trained and accredited lay advocates in addition to lawyers, it argued that claimants must have access to publicly funded advocacy services: supra note 59 at 56. The La Forest Report, supra note 66, is more reflective of the general reform sentiment where it observes at 74: “The practical result of no assistance would be to deny access. The human rights tribunal process is often complicated and requires experience in human rights in order to assemble and argue a case successfully. In the human rights context many claimants do not speak either official language or have disabilities that may make it difficult for them to access the system. Unrepresented claimants would require more time at the Tribunal hearing. Counsel can help keep the proceedings moving and reduce costs of lengthy hearings.” L’Heureux-Dubé J. for the majority in Board of Education of Indian Head School Division No. 19 (Sask.) v. Knight, [1990] 1 S.C.R. 653 at 668 [Indian Head School Division]. D. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 147.

Notes to pages 20-77

110 Ibid. at 156-57. 111 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, per L’Heureux-Dubé J. at 841 [Baker]. 112 L’Heureux-Dubé J. in Indian Head School Division, supra note 108 at 669. A long line of Canadian cases have approved of Lord Denning’s statement in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 at 19, where he writes: “The investigating body is under a duty to act fairly, but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains and penalties, or be exposed to prosecution or proceedings, or deprived of remedy or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only.” See also M.N.R. v. Coopers and Lybrand (1978), 12 D.L.R. (3d) 1; Baker, ibid. 113 Commanda v. Rainbow Concrete Industries, [2002] O.H.R.B.I.D. No. 2 at para. 78 (QL HUMQ). 114 Nisbett v. Manitoba Human Rights Commission (1993), 18 C.H.R.R. D/504 (Man. C.A.); Ford Motor Co. Canada v. Ontario Human Rights Commission (1995), 24 C.H.R.R. D/465 (Ont. Div. Ct.). 115 Indian Head School Division, supra note 108 at para. 46. 116 As discussed in LeBel J., dissenting in part in Blencoe v. B.C. (Human Rights Commission), [2000] S.C.J. No. 43. at para. 146 passim (QL SCJ) [Blencoe]. 117 Patel v. Minto (No. 2) (1996), 26 C.H.R.R. D/444 (Ont. Bd. Inq.); Schofield v. Oshawa General Hospital (1993), 20 C.H.R.R. D/391 (Ont. Bd. Inq.). 118 Blencoe, supra note 116 at 121. 119 Daniels v. Hamilton-Wentworth (Regional Municipality) Police, [1997] O.H.R.B.I.D. No. 21 (QL HUMQ). 120 Howe and Johnson, supra note 86. 121 Joachim, supra note 57 at 90. 122 See Chapter 2. 123 The borrowed title of influential commentator J. Willis, “The McRuer Report: Lawyers’ Values and Civil Servants’ Values” (1968) 18 U.T.L.J. 351. Some of these differences are elaborated on in Chapter 2. 124 Continuing Legal Education Society of British Columbia, supra note 80. Chapter 2: The Roles of Frontline Staff and Independent Lawyers 1 OHRC, “Report of the Organizational Health and Effectiveness Committee” (January 1993) at 3 [OHRC, “OHEC Report”]; Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Policy Services Branch, Ministry of Citizenship, 1992) [Cornish Report]. 2 See, for example, G. Ehring and W. Roberts, Giving Away a Miracle: Lost Dreams, Broken Promises and the Ontario NDP (Oakville, ON: Mosaic Press, 1994). 3 “OHEC Report,” supra note 1 at 1. 4 The Commission submitted to the Cornish Task Force that in 1991-92 it handled 92,000 public inquiries, a 63 percent increase over the previous year, and

151

152 Notes to pages 27-29

5 6 7 8

9 10

11 12 13 14 15

16

17

18 19

had a 30 percent increase in case openings: OHRC, “Submission to Ontario Human Rights Code Review Task Force” (May 1992) at 7 [OHRC, “Submission”]. Ibid. at 18. For example, the “OHEC Report” refers to organizational “healing,” “a journey of transformation,” “develop[ing] a vision,” “faith,” and “wisdom.” “OHEC Rerpot,” supra note 1 at 18. OHRC, “Non-Legislative Options for Improving Enforcement Procedures at the Ontario Human Rights Commission” (September 1993) [OHRC, “Enforcement Options”]. Cornish Report, supra note 1. See generally OHRC, “Enforcement Options,” supra note 8 at 5-6. The “Options” are somewhat of a misnomer in the sense that several, such as Early Settlement Initiative (ESI) time frames, had already been introduced as directives. The Options are more readily understood as a conceptual methodology for work systemization. From OHRC, “Submission,” supra note 4. From OHRC, “OHEC Report,” supra note 1. From OHRC, “Development and Implementation of Quality Assurance Standards” (May 1993) [OHRC, “Quality Assurance Standards”]. OHRC, “Enforcement Options,” supra note 8. Section 36 addresses the discretion to refer or not refer a complaint to a Board of Inquiry. Section 36(1) reads: “Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry.” Section 34 stipulates the grounds for a decision to “not deal with” a complaint. Section 34(1)(a) reads: “Where it appears to the Commission that, (a) the complaint is one that could or should be more appropriately dealt with under an Act other that this Act ... the Commission may, in its discretion, decide to not deal with the complaint.” Human Rights Code, R.S.O. 1995, c. H.19. OHRC, “Guidelines on the Application of Section 34 of the Ontario Human Rights Code” (September 1996) at 1 [OHRC, “Section 34 Guidelines”]. This appears to be chronologically incorrect, as the “Enforcement Options” brief is dated September of that year. As I recount in note 10, however, the “Enforcement Options” also detail some institutional policies that were already in place. Calculated from totalling case dispositions in OHRC, Annual Report 1997-1998 (Toronto: Government of Ontario, 1998) table 6 at 65. From 1998 onward, decisions to “not deal with” complaints under s. 34 are listed with other case dispositions in the Annual Reports. After this period, they typically drop to half or less than half of rates in the early 1990s (1998-99, 8 percent; 1999-2000, 12 percent; 2000-01, 18 percent; 2001-02, 11 percent; all figures from Annual Reports). OHRC, “Development and Implementation of Production Assurance Strategies” (September 1993) [OHRC, “Production Assurance”]. “[T]here are very dramatic events taking place throughout the OPS [Ontario Public Service] at this time particularly relating to the reduction of resources. If the Commission is to escape some of the effects of these events within the OPS it must be seen to be and be much more efficient and effective than is currently the case”: ibid. at 2. Part of this time came to be known as the “Days of Rage” as

Notes to pages 29-34

20 21

22 23 24 25 26

27

28 29

30 31 32 33 34

35 36 37 38 39

40 41 42 43

Ontario civil servants, nurses, social workers, teachers, students, and so on demonstrated and took work actions across the province in resistance to massive cuts to the public infrastructure and workforce. “[I]f we as staff of the Commission do not act to increase production at the commission, control of the situation will be taken away from us”: ibid. at 2. The first figure is from the Cornish Report, supra note 1 at 18. The second is reported in M.K. Joachim, “Reform of the Ontario Human Rights Commission” (1999) 13 Can. J. Admin. L. & Prac. 51 at 79. OHRC, “Production Assurance,” supra note 18 at 2. OHRC, “Restructuring Guidelines” (July 1994) at 1. The interaction between these values and the public interest is explored in Chapter 4. Human Rights Code, R.S.O. 1990, c. H.19, s. 32.(1). The social areas covered are services, goods and facilities, accommodation, employment, contracts, and vocational associations. The protected grounds include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, handicap, receipt of public assistance (in accommodation), and record of offences (in employment). Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended. This is reiterated in Part IV, Assignment of Cases, which states: “Once jurisdiction has been established by the Inquiries Service Representative”: OHRC, Enforcement Procedures Manual (April 1997) pt. 4 at 5 [OHRC, Enforcement Procedures Manual]. Ibid. M. Hart and G. Sanson, “Filing a Complaint and the New Mediation Procedure: The Complainants’ Perspective,” LSUCC Department of Continuing Legal Education, New Developments at the Ontario Human Rights Commission (1997) [unpublished] at 3. Ibid. at 4. OHRC, Enforcement Procedures Manual, supra note 27, pt. 1 at 16. Ibid., pt. 1 at 20. OHRC, “Section 34 Guidelines,” supra note 16 at 18 (emphasis in original). This was established in Nancy Bridges v. Ontario Human Rights Commission (17 December 1991), Ct. File No. 157-91 (Ont. Div. Ct.), as cited in Cornish Report, supra note 1 at 65, n. 22. In the case, the Commission was ordered by Justice W. O’Brian of the Ontario Divisional Court to accept a complaint drafted by the Centre for Equality Rights in Accommodation (CERA). Hart and Sanson, supra note 29 at 4 (emphasis in original). Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 34. Ibid., s. 33(1) (as amended) [emphasis added]. OHRC, Enforcement Procedures Manual, supra note 27, pt. 11 at 1. Ibid., pt. 4 at 5. These options include referral directly to investigation; mediate; process under s. 34; early resolution (i.e., settlement); or complainant likely to withdraw based on respondent’s response. Ibid., pt. 4 at 6. Ibid., pt. 4 at 2-5. Ibid., pt. 3 at 2. Ibid., pt. 3 at 3.

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154 Notes to pages 34-39

44 “[T]he Mediation Officer will be able to provide information regarding whether the public interest in a complaint has been addressed to the likely satisfaction of the Commission”; “If the parties are ignoring the public interest component, the Mediation Officer will bring this to their attention. Also if the proposed terms of settlement do not address an identified public interest issue, the Mediation Officer will provide information based on case law and precedents to the parties, regarding the sorts of remedies that the Commission would be looking for to address the matter”: ibid., pt. 3 at 4. 45 Ibid., pt. 3 at 11. 46 Ibid., pt. 5 at 3 (emphasis in original). The Manual states as the rationale for this instruction: “This investigative approach avoids the misapplication of resources by over-investigating complaints.” 47 Ibid., pt. 6 at 2. 48 Ibid., pt. 6 at 2. 49 Ibid., pt. 6 at 3. 50 Ibid., pt. 6 at 8. 51 Ibid., pt. 6 at 5. 52 Ibid., pt. 6 at 11. 53 Ibid., pt. 9 at 1-2. 54 Ibid., pt. 9 at 3. 55 Ibid., pt. 9 at 6. 56 Ibid., pt. 10 at 3. 57 Ibid., pt. 10 at 7. 58 Ibid., pt. 10 at 1. 59 Ibid., pt. 11 at 1. 60 Commercial Union Assurance v. Ontario Human Rights Commission (1987), 24 Admin. L.R. 11 (Ont. Div. Ct.); (1988), aff’d 30 Admin. L.R. 183 at 186 (Ont. C.A.). 61 OHRC, Enforcement Procedures Manual, supra note 27, pt. 11 at 5. 62 The term “street-level bureaucrats” is adopted from M. Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation, 1980) at 10. 63 D. Handelman and E. Layton, Bureaucracy and World View: Studies in the Logic of Official Interpretation (St. John’s, NL: Institute of Social and Economic Research, Memorial University and Toronto: University of Toronto Press, 1978) at 8. 64 J.M. Prottas, People-Processing: The Street-Level Bureaucrat in Public Service Bureaucracies (Lexington, MA: D.C. Heath, 1979) at 46. 65 Lipsky, supra note 62 at xiii. 66 Ibid. at 87. 67 Ibid. at 76. 68 Ibid. at xii. 69 J.C. Vinzant and L. Crothers, Street-Level Leadership: Discretion and Legitimacy in Front-Line Public Service (Washington, DC: Georgetown University Press, 1998). 70 Ibid. at 4. 71 Ibid. at 10. 72 See, similarly, Prottas, supra note 64 at 169. 73 This is 76 percent of those 60,698 callers who opted to speak to an Inquiry Services Representative (OHRC, Annual Report 2004-2005), online: http://www. ohrc.on.ca. There are currently nine ISRs.

Notes to pages 39-43

74 75 76 77 78

79

80 81 82 83 84

OHRC, Enforcement Procedures Manual, supra note 27, pt. 1 at 2. Staff transcript 302. Staff transcript 301. But see Vinzant and Crothers, supra note 69; Lipsky, supra note 62; Prottas, supra note 64. For example, one inquiry staff member recalled instances where the call pertained to professional training documents or workshops: “Sometimes they’re calling from a college or university or they want to have a session at their workplace to inform people and they don’t want to have someone come in but they want enough information. They were writing the policy. I can give them that information where I don’t have to refer them to somebody or I can refer them to the web site where there’s lots of information. It can get sticky and you don’t – they get your name and you don’t want to really be responsible for giving [incorrect information]”: Staff transcript 303. In comparison, the Employment Standards Branch of the Ontario Ministry of Labour received 442,258 calls from April 2002 to March 2003, and 514,553 calls from April 2001 to March 2002, to its central greater Toronto area Enquiries Centre. They do not track whether information requests later proceed to form a claim or complaint (personal communication, L. Wong, executive assistant to Director, Employment Standards Branch, Ontario Ministry of Labour, 8 April 2003). The Ombudsman Ontario, which acts on complaints against provincial government agencies, receives 35,175 calls annually to its centralized access call centre. Drawing on an extensive database, it also provides referrals to callers who may be inquiring about a federal ministry, Crown corporation, or private business. In 2001-02, the Ombudsman provided 7,000 referrals. The Annual Report notes that complaints from the greater Toronto area were significantly underrepresentative of the population there. Online: Ombudsman Ontario, http://www.ombudsman.on.ca/pdf/2001_02_annualreport_eng.pdf. Staff transcript 302. Staff transcript 305. Staff transcript 307. Staff transcript 301. OHRC, Enforcement Procedures Manual, supra note 27, pt. 13 at 1. One lawyer observed: “Also you know what happens with test cases as they’re moving towards a Board of Inquiry. In that other like cases maybe the investigative process may be suspended in the interim while they decide whether – what the outcome is of the representative case. That’s happening as well, which may be unfortunate for individual complainants. That’s the explanation for why, in 2001, I just finished a complaint that was signed in 1989. It happened that after that complaint was filed, there was a test case that went forward. It went forward in the mid-1990s. It was an appeal to provisional court. It was an appeal to the Court of Appeal. Leave was denied. It finally ended. And so this complaint was signed in 1989 and finally went ahead. The hearing just finished this year. I’m assuming that the decision will be written in 2002. That certainly is something that can happen. I’ve noticed often that by the time a complaint is several years old, the complainant can have lost the fire that they had otherwise had. They can feel like what’s most important to them at this point is that they just want closure. They want it over with. They want it resolved. They don’t care

155

156 Notes to pages 43-47

85 86 87 88

89 90 91 92

93

94 95

96

anymore if they get vindicated. They just want to put it behind them”: Lawyer transcript 105. Staff transcript 304. Lawyer transcript 110. Staff transcript 304. OHRC, Annual Reports, 1996-97 to 2001-02. In 1997-98 (May to April only, beginning with the centralization of inquiry and intake services to the Toronto office in May 1997), 32,579 inquiries were received. By 2002, 64,154 callers sought to speak to an inquiries representative; 48,732 were responded to by staff. Staff transcript 309. Staff transcript 304. Lawyer transcript 108. Lawyer transcript 109. The OHRC reports 2,438 new complaints initiated in 2001-02, almost half of them (49.7 percent) citing disability as a ground. The comparative figure in 2000-01 was 1,775 complaints. OHRC, Annual Report 20012002 at 45. The interview subject, however, condemned this function. “I think that this system was a response to the explosive nature of civil rights in the late 50’s and 60’s and the utter fearfulness of having litigation around racism. I think this is a containment system for discontent. I think it is designed to contain and it has very principled reasons why not everything is in public interest and not everything goes to a Board of Inquiry. But I think those are a subterfuge”: Lawyer transcript 101. See, similarly, Prottas, supra note 64 at 105-6. See, however, L. Mather, C. McEwan, and R. Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (Oxford: Oxford University Press, 2001); T. Oberweis and M. Musheno, Knowing Rights: State Actors’ Stories of Power, Identity and Morality (Aldershot, UK: Ashgate Publishing, 2001); A. Sarat and W. Felstiner, Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process (New York: Oxford University Press, 1995) [Sarat and Felstiner, Divorce Lawyers]; M. McConville, J. Hodgson, L. Bridges, and A. Pavlovic, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Clarendon Press, 1994); S. Silbey, “Conformity, Contestation and Resistance: An Account of Legal Consciousness” (1992) 26 New Eng. L. Rev. 731; B. Yngvesson, “Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in a New England Town” (1988) 22 Law & Soc’y Rev. 409; A. Sarat and W. Felstiner, “Law and Social Relations: Vocabularies of Motive in Lawyer/Client Interaction” (1988) 22 Law & Soc’y Rev. 737 [Sarat and Felstiner, “Law and Social Relations”]; A. Sarat and W. Felstiner, “Legal Realism in Lawyer-Client Communications,” Working Paper 8723 (Chicago: American Bar Foundation, 1988) [Sarat and Felstiner, “Legal Realism”]; R. Ericson and P. Baranek, The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process (Toronto: University of Toronto Press, 1982); H. Kay, “The Offer of a Free Home: A Case Study in the Family Law of the Poor” in L. Nader, ed., Law in Culture and Society (Chicago: Aldine Publishing, 1969) 304. For a discussion of multiple cultures of lawyering, see, for example, W. Pue and D. Sugerman, eds., Lawyers and Vampires: Cultural Histories of Legal Professions (Oxford: Hart, 2003) at 15.

Notes to pages 47-49

97 See, for example, J. Hagan, Victims before the Law: The Organizational Domination of Criminal Law (Scarborough, ON: Butterworths, 1983); Ericson and Baranek, supra note 95; M. Feeley, “Two Models of the Criminal Justice System: An Organizational Perspective” (1973) 7 Law & Soc’y Rev. 409. 98 Ericson and Baranek, supra note 95. 99 R. Gordon, “A Perspective from the United States” in C. Wilton, ed., Beyond the Law: Lawyers and Business in Canada, 1830 to 1930 (Toronto: Osgoode Society, 1990) 425 at 429. 100 McConville et al., supra note 95 at 129. 101 Ibid. at 159. 102 Sarat and Felstiner, Divorce Lawyers, supra note 95; Sarat and Felstiner, “Law and Social Relations,” supra note 95. 103 Mather et al., supra note 95. 104 See W. Goode, “Community within a Community: The Professions” (1957) 22 American Sociological Review 194; T. Johnson, Professions and Power (London: Macmillan, 1972); R. Dingwall, “Accomplishing Profession” (1976) 24 Sociological Review 331; M. Schwartz, “The Professionalism and Accountability of Lawyers” (1978) 66 Cal. L. Rev. 669; M. Cain, “The General Practice Lawyer and the Client: Towards a Radical Conception” (1979) 7 Int’l J. Soc. L. 331; R. Abel, “Comparative Sociology of Legal Professions: An Exploratory Essay” (1985) 10 American Bar Foundation Research Journal 1; R. Nelson, “Ideology, Practice and Professional Autonomy: Social Values and Client Relationships in the Large Law Firm,” (1985/86) 37 Stan. L. Rev. 503; B. Curran, “American Lawyers in the 1980’s: A Profession in Transition” (1986) 20 Law & Soc’y Rev. 19; M. Galanter and T. Paley, Tournament of Lawyers: The Growth and Transformation of the Big Law Firm (Chicago: University of Chicago Press, 1991); R. Nelson, D. Trubek, and R. Solomon, eds., Lawyers’ Ideals/Lawyers’ Practices (Ithaca, NY: Cornell University Press, 1992); M. Cain and C. Harrington, eds., Lawyers in a Postmodern World: Translation and Transgression (New York: New York University Press, 1994); J. Hagan and F. Kay, Gender in Practice: A Study of Lawyers’ Lives (New York: Oxford University Press, 1995); J. Heinz, E. Laumann, R. Nelson, and E. Michelson, “The Changing Character of Lawyers’ Work: Chicago in 1975 and 1995” (1998) 32 Law & Soc’y Rev. 751; A. Sarat and S. Scheingold, eds., Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1998); J. Heinz, K. Hull, and A. Harter, “Lawyers and Their Discontents: Findings from a Survey of the Chicago Bar” (1999) 74 Ind. L.J. 735; L. Mather et al., supra note 95; Pue and Sugerman, supra note 96. 105 Nelson, ibid. at 505. 106 See A. Blumberg, “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession” (1966) 1 Law & Soc’y Rev. 15; Ericson and Baranek, supra note 95. 107 Nelson, supra note 104 at 526. 108 C. Gilkerson, “Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories” (1992) 43 Hastings L.J. 861 at 864. See also P. Gabel and P. Harris, “Building Power and Breaking Images: Critical Theory and the Practice of Law” (1982/83) 11 N.Y.U. Rev. L. & Soc. Change 369; A. Sarat, “‘The Law Is All Over’: Power, Resistance, and the Legal Consciousness of the Welfare Poor” (1990) 2 Yale J.L. & Human. 343; A. Alfieri, “Reconstructive

157

158 Notes to pages 49-53

109 110

111 112 113

114 115

116

117

118

119 120 121 122 123

Poverty Law Practice: Learning Lessons of Client Narrative” (1991) 100 Yale L.J. 2107. Sarat and Scheingold, supra note 104 at 7. C. Menkel-Meadow, “The Causes of Cause Lawyering: Toward an Understanding of the Motivations and Commitment of Social Justice Lawyers” in Sarat and Scheingold, supra note 104, 31 at 37. Sarat and Scheingold, supra note 104 at 9. Mather et al., supra note 95 at 6. Ibid. at 10. For example, the Toronto human rights complainant bar holds a regular monthly “Breakfast Club” where lawyers share current information about local practice. Bhadauria v. Seneca College of Applied Arts and Technology, [1981] 2 S.C.R 181. See, in contrast, M. McCann and H. Silverstein, “Rethinking Law’s ‘Allurements’: A Relational Analysis of Social Movement Lawyers in the United States,” in Sarat and Scheingold, supra note 104, 261 at 265-66, where the authors distinguish among several categories of “movement” lawyers in investigating the legal cooptation of reform efforts: staff lawyers, independent cause lawyers, and nonpractising lawyers. They further identify two ideal types of staff lawyers: those who are “technicians,” restricting themselves to consultation, negotiation, and litigation of campaigns initiated by others, and “activists,” who are leaders in formulating group demands, developing group strategies, and waging broader political campaigns. For example, the Court Challenges Program is a not-for-profit organization established through federal funding in 1994 to provide financial assistance to historically disadvantaged or official language minority groups for important cases advancing constitutional equality and language rights. For further reference, see online: Court Challenges Program of Canada, http://www.ccppcj.ca. In 1998, the Ontario government enacted the Legal Aid Services Act, consolidating the administration of legal services for low-income clients. Legal Aid Ontario (LAO) funds seventy-eight independent community-based legal aid clinics besides issuing legal aid certificates guaranteeing payment to private-practice lawyers. See online: Legal Aid Ontario, http://www.legalaid.on.ca. In an application for judicial review of the OHRC decision to “not deal with” a complaint, the complainant, represented by prominent human rights reform advocates, failed in her motion to require the Commission to produce an inhouse legal opinion, held by the Court to be protected under solicitor/client privilege: Pritchard v. Ontario (Human Rights Commission), [2003] O.J. No. 215 (Ont. C.A.) (QL HUMQ). In an earlier case, a complainant, represented by the same firm, succeeded in part in a motion to examine the registrar for the purposes of judicial review, and to require full disclosure of materials on which the commissioners based their disposition of her case: Payne v. Ontario (Human Rights Commission) (2000), 192 D.L.R. (4th) 315 (Ont. C.A.). See similarly, Sarat and Scheingold, supra note 104 at 17. Lawyer transcript 106. Ibid. Lawyer transcript 105. A staff member noted that callers whose treatment does not fall within the Code often confront the staff member about why there is no legislation governing

Notes to pages 53-56

124

125 126

127

128 129 130 131 132 133

their difficulty: “‘What do you mean you don’t deal with this kind of harassment? He called me f—ing stupid, can’t you see? He doesn’t call anybody else that. He just doesn’t like me. [I]sn’t there some other government legislation that deals with this?’ Well, no as far as I know there isn’t any. There’s no government legislation that deals with harassment in general. And you sort of try to bring them back [to] this is what we do. We deal with issues like race, colour, creed, sex, sexual harassment – were you sexually harassed? ‘No, he didn’t do that.’ So, is that all that he did? ‘From what you explained, yes. He called me f—ing stupid.’ ... Yeah, and then we try to tell them, well, in Ontario human rights doesn’t mean everything under the sun. It means specifically a narrow area of the discrimination you define that for them under the Code ... Very often – ‘[W]ell what are you there for? I pay your salary you know.’ That’s the general – because we’re not able to help them in the initial state and of course you’re already upset and angry from how you’ve been treated and what was said and done to you. I don’t know which planet you’re living in but generally not everybody is going to be nice to you every day – and it’s not a human rights issue’”: Staff transcript 303. The reader is invited to recall earlier reference to Willis’ phrase (Chapter 1, note 123) about distinctions between “lawyers’ values” and “civil servants’ values.” A focus on exclusion or inclusion under the Code might be one example of such differences in approach. The Code provides that, while any person who believes that his or her rights under the Code have been infringed may file a complaint (s. 32), the Commission has exclusive discretion to decide whether a complaint is within its jurisdiction (s. 34[1][c]). Lawyer transcript 105. Mather et al., supra note 95. Although it may not be a valid observation of the advocates on salary with legal clinics, this truism also extends to those lawyers working on a legal aid certificate, whose fees are governed by legal aid tariffs. Lawyer transcript 103. Another lawyer observed: “I could say, you know this is a case we can’t prove even though intuitively you know you have a case. Going through the process would be agony for you and I’m going to do my best to talk you out of it. And I spend a lot of time doing that. I spend a lot of time telling people what the process is like and helping them come to an educated and informed decision about whether they’re going to put that energy into it”: Lawyer transcript 101. See similarly Mather et al., supra note 95 at 12. Lawyer transcript 101. Board of Education of Indian Head School Division No. 19 (Sask.) v. Knight, [1990] 1 S.C.R. 653 at 668 [Indian Head School Division]. Lawyer transcript 105. Around 6 percent of complaints that are accepted by the Commission proceed to a Board of Inquiry. Many lawyers acknowledged the common misunderstanding among clients that enforcement against rights violations occurs in a regular court: “[T]he number one myth is that ‘I’m going to sue you in court for discrimination.’ I have to go through this education process whereby I advise them that subject to law and Supreme Court jurisprudence, you generally cannot argue about discrimination directly in a court. There are many backdoor ways of doing it. You can

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160 Notes to pages 56-64

134 135

136 137

138

139 140 141 142 143

144

145 146 147 148 149

piggyback certain aspects of discrimination to get higher damage awards in a wrongful dismissal, for instance. But it really is tiring and expensive because when they come and see me, they’re paying money for the consultation or beyond that, as to how narrow the focus is of the mechanism. Yes, they do have a sense of the rights culture and the rights language. But there is, in my experience, very little real knowledge about any legal enforcement mechanisms out there”: Lawyer transcript 108. Lawyer transcript 110. J. Thibaut and L. Walker, Procedural Justice (Hillsdale, NJ: Erlbaum, 1975); W. O’Barr and J. Conley, “Lay Expectations of the Civil Justice System” (1988) 22 Law & Soc’y Rev. 137; M. Lerner and L. Whitehead, “Procedural Justice Viewed in the Context of Justice Motive Theory” in G. Mikula, ed., Justice and Social Interaction (Berne: Hans Huber Publishers, 1980) 219; T. Tyler, Why People Obey the Law (New Haven, CT: Yale University Press, 1990). See R. Langer, “The Juridification and Technicisation of Alternative Dispute Resolution Practices” (1998) 13 C.J.L.S. 169 and literature cited therein. D. Turner and L. Brown, “Human Rights Dispute Resolution: Community Voices,” a public community consultation with 75 BC citizens (2000), online: Institute for Dispute Resolution, University of Victoria, http://dispute.resolution.uvic.ca/ hr-research.htm. J.O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (New York: Cambridge University Press, 1978) as cited in B. Cartwright and B. Boyer, “Mobilizing Friends and Foes in Administrative Proceedings” (1984) 6 Law & Policy Quarterly 451 at 486, n. 2. O’Barr and Conley, supra note 135 at 139. Ibid. Macdonald, R.A. Study Paper on Prospects for Civil Justice (Toronto: Ontario Law Reform Commission, 1995) at 60. Ibid. at 155. M. Hart and G. Sanson write, for example: “There is an urgent need to provide complainants with direct access to a remedy, whether by giving them the ability to elect between using the Commission’s process or directly enforcing their rights either in court or before a standing tribunal”: supra note 29 at 10. For example, Hart and Sanson raise concerns that interest-based mediation does not adequately protect complainant rights. They further suggest that mediators will be vulnerable to institutional pressures to settle cases. Ibid. at 9. Lawyer transcript 106. Lawyer transcript 108. Ibid. Lawyer transcript 110. Ibid.

Chapter 3: Transforming Human Rights Complaints into Cases 1 See, similarly, J.M. Prottas, People-Processing: The Street-Level Bureaucrat in Public Service Bureaucracies (Lexington, MA: D.C. Heath, 1979) at 87. 2 The Human Rights Code, C.C.S.M. c. H175 (Manitoba); Human Rights Act, S.Y. 1987, c. 3; and Charter of Human Rights and Freedoms, R.Q., C-12.

Notes to page 65

3 The Preamble to the Ontario Code reads: “Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ...” 4 Ontario (Human Rights Commission) and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536. 5 Vancouver Rape Relief Society v. Nixon, [2005] B.C.J. No. 2647 (B.C.C.A.) (QL). 6 Ontario Human Rights Code, R.S.O. 1995, c. H.19. 7 Years in parenthesis denote the year the instrument was entered into force in Canada. 8 Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, UN Doc. A/ 810 (1948). Other international human rights instruments that contain antidiscrimination language include the International Convention on the Elimination of All Forms of Racial Discrimination (4 January 1969), 660 U.N.T.S. 195, art. 1(1) of which provides that racial discrimination means: “Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life.” Article 26 of the International Covenant on Civil and Political Rights, 19 December 1966, Can. T.S. 1976 No. 47, affirms that all persons are “equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A (XXI), UN GAOR, UN Doc. A/6316 (1966) (entered into force: 3 January 1976) contains an identical anti-discrimination clause. The Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 34/180, UN GAOR, UN Doc. A/34/36 (1981) (entered into force: 3 September 1981) defines discrimination as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” The United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GA Res. 36/55, UN GAOR (1981) defines freedom of thought, conscience, and religion as including “freedom to have a religion or whatever belief of his [sic] choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” Also of note is the UN Declaration on the Rights of Disabled Persons, GA Res. 3447 (XXX), UN GAOR, UN Doc. A/10034 (1975). 9 Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Maison des jeunes À-Ma-Baie Inc. (No. 2) (1998), 33 C.H.R.R. D/263 (Trib. Que.). Also recall the reference to Canada’s international commitments in Re Drummond Wren, [1945] 4 D.L.R. 674 (Ont. H.C.).

161

162 Notes to pages 65-73

10 Other frameworks, not all triggered solely by complaints, mandate positive measures and standards to eliminate barriers to equality. See, for example, Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32; Tenant Protections Act 1997, S.O. 1997, c. 24; Labour Relations Act, R.S.O. 1990, c. I.2; Pay Equity Act, R.S.O. 1990, c. P.7; Ombudsman Act, R.S.O 1990, c. 0.6; Ontario Employment Equity Act, 1993, S.O. 1993, c. 35 (repealed by S.O. 1995, c. 4, s. 1). 11 K. Bumiller, The Civil Rights Society: The Social Construction of Victims (Baltimore: Johns Hopkins University Press, 1988) at 5. 12 Lawyer transcript 103. 13 Lawyer transcript 101. 14 Staff transcript 307. 15 Staff transcript 302. 16 Staff transcript 307. 17 Lawyer transcript 101. 18 “So people have this gut instinct about the word discrimination ... People believe that when they’ve been discriminated against means that you’ve been treated unfairly. So they do not realize that it means you’ve been treated unfairly because of one of the prohibitive grounds within one of the spheres of covered activity”: Lawyer transcript 110. 19 Lawyer transcript 108. 20 Complainant transcript 06. 21 Bumiller, supra note 11 at 98-99. 22 Ibid. at 29. 23 Ibid. at 103. 24 Ibid. at 100. This concern was expressed also to intermediaries interviewed for this study. For example, one lawyer observed: “A lot of people self-censure in that they realize and say, ‘I probably don’t have a case to win. I don’t have enough evidence. I won’t be able to prove it.’ I’m often in the position of having to say to them, ‘Look, your oral testimony is valid evidence.’ They’ll self-censure so early in the process. If you have a claim, all you need is a Section 32 of the Code, the belief that you’ve been discriminated against on one of the grounds in one of the areas. On that basis alone, you can file a complaint”: Lawyer transcript 103. 25 Bumiller, supra note 11 at 108. 26 Ibid. at 102. 27 Ibid. Bumiller writes, at 115-16: “The universalization of rights, in effect, makes the invocation of rights meaningless if the victims cannot state their claims in terms of the treatment of a disadvantaged class of which they consider themselves a member.” 28 Lawyer transcript 110. 29 R. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999) at 31. 30 P. Ricoeur, Hermeneutics and the Human Sciences (Cambridge: Cambridge University Press, 1981) at 175, as quoted in Primus, ibid. at 31. 31 “And they feel that maybe the legal system is not working in their favour, and because of that it’s a human rights issue. Or a decision that’s been made against them in another process, because it’s not in their favour, it’s a human rights issue”: Staff transcript 307. A complainant reported: “You file your complaint and then the Commission has the right to say no, we’re not going to proceed and then I didn’t know what I was going to do”: Complainant transcript 05.

Notes to pages 73-80

32 Here a complainant recounts when he started thinking about his situation as a potential “rights violation”: “I think I became aware that again, I felt that I was being patronized. I felt that what was of value to me in having a comfortable working situation was really being taken away from me and that was being threatened in that no one cared. In fact, for a while there I was willing to actually subjugate myself to the whole thing and just try and not complain about it. It was only when the racist note was found that my blood really started to boil because the management’s reaction to that was not one of any sort of concern over my hurt or my pain that I suffered, but really as a damage control; that we can’t – we mustn’t let this out. And they were more concerned that the note was in my possession rather than what it meant”: Complainant transcript 06. 33 Lawyer transcript 103. 34 Lawyer transcript 105. 35 Ibid. 36 Complainant transcript 03. 37 Primus, supra note 29 at 42. See also M.B. Dembour, “Human Rights Talk and Anthropological Ambivalence” in O. Harris, ed., Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity (London: Routledge, 1996) 19 at 35. 38 Primus, supra note 29 at 43. 39 See, for example, the staff account at note 97 of a complaint that could be more appropriately characterized as an employment standards issue. 40 It was also noted by several interview respondents that racism, in particular, is becoming more subtle, harder to pinpoint. One complainant stated: “Dismissal and silencing are new forms of discrimination. It is the showing of contempt, being shut down is the new form of discrimination”: Complainant transcript 06. 41 “Legal Realism in Lawyer-Client Communications,” Working Paper 8723 (Chicago: American Bar Foundation, 1988) at 3. 42 Primus, supra note 29 at 235. 43 Staff transcript 302. 44 Staff transcript 304. 45 Staff transcript 303. 46 Staff transcript 305. 47 “Well, they have a right to file. Yes, they cite you that. People cite you that as well: ‘I believe it’s my right to file’”: Staff transcript 303. 48 Staff transcript 304. 49 Staff transcript 306. 50 Prottas, supra note 1 at 130. 51 For example, “Well, at the beginning of the year it wasn’t so difficult because we had a certain criteria that we used in establishing or trying to determine handicap under the Human Rights Code, okay? And towards the end of March of 2001, the Commission released a new policy on handicap and it was changed so our thinking is much different to that rigorous sort of criteria that we used when we were determining handicap. Now it’s much more broad and can be very grey. So, what may not have been a handicap ... last year at this time, may be considered a handicap under the Human Rights Code today”: Staff transcript 301. 52 Staff transcript 305. 53 Ibid.

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164 Notes to pages 81-87

54 Staff transcript 309. 55 “When we draft a complaint I think some complainants interpret it to mean that we’re representing them, just in the way you have a lawyer who can draft up a statement of claim, and here we are – you know, they sent in information and here we are sending them back a document to sign ... and if I have a perception that they’re thanking me because they think I’m representing them or something, then I have to tell them no, explain the role, that ‘This is just part of my job, to draft the complaint, but we don’t represent you; we represent the public in trust, so we administer the Code’”: Staff transcript 307. 56 Staff transcript 309. 57 M. McConville, J. Hodgson, L. Bridges, and A. Pavlovic, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Clarendon Press, 1994) at 151. 58 Lawyer transcript 101. 59 W. Simon, “Visions of Practice in Legal Thought” (1984) 36 Stan. L. Rev. 469 at 488. 60 Lawyer transcript 104. 61 The sentiment that lawyers represent a fungible form of legal ammunition is exemplified in this complainant’s comment: “You know, my union had two lawyers. I would have liked to have seen two lawyers on the Commission side, but the one did it and I think he sufficed”: Complainant transcript 05. 62 Lawyer transcript 108. 63 Indeed, the OHRC was unable to produce statistics on unrepresented appellants when requested. 64 Lawyer transcript 108. 65 A lawyer comments on stating to a client, for example, “[Y]ou have a right at the Human Rights Commission ... But we don’t really have time to look and see how things will work out. I would suggest you get the complaint in. The employer or the worker will know you’re serious. And then move on with trying to mediate as our main goal. Because you’re probably going to get more that way than you are going through a complaint”: Lawyer transcript 103. 66 Lawyer transcript 102. 67 Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085; Pilon v. Peugeot Canada Ltd. (1980), 114 D.L.R. (3d) 378 (Ont. H.C.). 68 Lawyer transcript 101. 69 Staff transcript 307. 70 Primus, supra note 29 at 238. 71 See J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. by W. Rehg (Cambridge, MA: MIT Press, 1996) at xv. 72 For example, s. 34. 73 L. Howe, On Habermas (Belmont, CA: Wadsworth/Thomson Learning, 2000) at 5. Howe explains the Habermasian critique that positive science projects an image of the world as an aggregate of facts structured in a lawlike manner. In doing so, it conceals the a priori constitution of these facts. I use this formulation here to illustrate both the displacement of the subject from his or her personally situated transaction and the transformative process of translating experience into legal case. A staff member recounts, for example, “We’ve asked them to tell us

Notes to pages 87-95

74 75 76

77 78 79 80 81 82 83 84 85 86 87 88 89

90 91 92 93 94

95

what happened, and what we’ve done is presented them what they’ve told us happened in a nice, clean format”: Staff transcript 309. W. Conklin, “Human Rights, Language and Law: A Survey of Semiotics and Phenomenology” (1995) 27 Ottawa L. Rev. 129 at 152. Ibid. at 154. Coalition for Reform of the Ontario Human Rights Commission, Brief, “Dysfunction in the Human Rights Complaints System” (November 1995) [unpublished, copy on file with author] at 2. The relevant provision of the Code, s. 32(1) reads: “Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint in a form approved of by the Commission” (emphasis added): Ontario Human Rights Code, supra note 6. Inconsistency arises where intake staff determine that, in their view, a complaint is not warranted; in these instances, the complainant may file a complaint on his or her own. The Commission does not have exclusive jurisdiction over the formulation of a written complaint. A complaint may be drafted by an individual or a complainant’s “representative” and, if it complies with the Commission’s drafting standards and legal requirements, it can be registered and served. In Nancy Bridges v. Ontario Human Rights Commission (17 December 1991), Ct. File No. 157-91 (Ont. Div. Ct.), the Commission was ordered by the Ontario Divisional Court to accept a complaint drafted by the Centre for Equality Rights in Accommodation (CERA). Staff transcripts 307 and 304. Staff transcript 302. OHRC, Enforcement Procedures Manual (April 1997) pt. 1 at 23. “Must ensure that.” OHRC, supra note 79, pt. 1 at 22. Staff transcript 301. Staff transcript 302. Staff transcript 301. See, similarly, McConville et al., supra note 57 at 142. Staff transcript 309. Staff transcript 304. P. Berger and T. Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Hammondsworth, UK: Penguin, 1966) at 134. R. Ericson and P. Baranek, The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process (Toronto: University of Toronto Press, 1982) at 21. Lawyer transcript 105. Ibid. Lawyer transcript 110. Complainant transcript 05. “And normally – it’s partly because of them, because they’ve provided the information, that I think when they see it, they see the legal citations, they see the chronology, how we’ve laid it out, a little bit more orderly than they have, and it just – it’s like, ‘Wow, this is neat! This has happened.’ It’s almost like they’re stepping back and looking at the file. And it may, for them, validate their complaint”: Staff transcript 307. Staff transcript 306.

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166 Notes to pages 96-101

96 Staff transcript 301. 97 Simon, supra note 59. 98 See, similarly, A. Sarat, “‘The Law Is All Over’: Power, Resistance, and the Legal Consciousness of the Welfare Poor” (1990) 2 Yale J.L. & Human. 343.

1

2

3

4 5 6

Chapter 4: Publics, Counterpublics, and the Public Interest The epigraph is taken from the dissent of La Forest J. in Scowby v. Glendenning, [1986] 2 S.C.R. 226 at 256. D. Mullan, “Administrative Tribunals: Their Evolution in Canada from 1945 to 1984” in Canada, Report of the Royal Commission on the Economic Union and Development Prospects for Canada: Regulations, Crown Corporations and Administrative Tribunals, vol. 48 (Toronto: University of Toronto Press and Minister of Supply and Services Canada, 1986) 155 at 178. I am influenced in my thinking about the public interest as process by Hyde’s conceptualization of legitimacy in A. Hyde, “The Concept of Legitimation in the Sociology of Law” (1983) Wis. L. Rev. 379. This article discusses various usages of the concept of legitimacy to argue that, like “the public interest,” the term is vague, used as a substitute for evaluative claims with their moral basis unarticulated, and generally almost impossible to operationalize. He contends that a theory of legitimacy would have to explain when elites (or, in this case, the statutory agency) feel that their legitimacy is threatened, what actions are felt would restore legitimacy, and what concessions or trade-offs would be associated with the restoration of legitimacy. He argues that legitimacy, if it is anything at all, is a social process demonstrable by social observation, and not an output of the legal system. The benefit of this analysis by analogy to the present discussion of the public interest is to make the point that “the public interest” is produced through legislative and policy statements, judicial commentary, interest group lobby and reform efforts, and policy consultations. Although on a good day I am not yet ready to concede that social life is degraded and incoherent, public administration theorists O. White and C. McSwain use the term “hyperpluralism” to denote the social condition of advanced technological modernity wherein there is a degraded and increasingly incoherent shared social reality. They argue that, as a corrective, within the public agency “the public interest” may serve as a metaphorical “grammar,” or methodological rules, for a common language constituting the shared body of knowledge and consensus on which policy and administrative action must be based. O. White and C. McSwain, “The Phoenix Project: Raising a New Image of Public Administration from the Ashes of the Past” in H. Kass and B. Catron, eds., Images and Identities in Public Administration (Newbury Park, CA: Sage Publications, 1990) 23 at 52-54. From a process perspective, however, I agree with White and McSwain that “the public interest” may serve, conceptually, to unify diverse and conflicting social agendas. Canada Trust v. Ontario (Human Rights Commission) (1990), 74 O.R. (2d) 481 (Ont. C.A.). Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 [Robichaud]. The Purpose section of the Canadian Human Rights Act states: “The purpose of this Act is to extend the laws in Canada to give effect ... to the principle that all individuals should have an opportunity equal with other individuals to make

Notes to pages 101-7

7 8 9

10 11 12 13

14 15 16 17 18 19 20

21

22 23 24

25 26

for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices”: Canadian Human Rights Act, R.S. 1985, c. H-6, s. 2. Robichaud, supra note 5 at 95. Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 [Heerspink]. Ibid. at 154. For other statements as to the pre-eminence of domestic human rights legislation, see also Zurich Insurance Co. v. Ontario Human Rights Commission, [1992] 2 S.C.R. 321; Gibbs v. Battlefords and District Co-Operative Ltd., [1996] 3 S.C.R. 566. The Ontario Code, s. 47(2) states: “Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.” Ontario (Human Rights Commission) and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at 547. Garnhum v. Canada (Canadian Human Rights Commission) (re Canadian Armed Forces) [1996] 120 F.T.R. 1 (F.C.T.D.). B.C. Human Rights Commission v. B.C. Human Rights Tribunal and Shannon, [2001] 40 C.H.R.R. D/95 (B.C.S.C.). D. Farber and P. Frickey, Law and Public Choice (Chicago: University of Chicago Press, 1991) at 6, 7. See also J. Mashaw, “The Economics of Politics and the Understanding of Public Law” (1989) 65 Chicago-Kent L. Rev. 123. J. Mashaw, Due Process in the Administrative State (New Haven, CT: Yale University Press, 1985) [Mashaw, Due Process]. Ibid. at 46. Ibid. at 171. J. Mashaw, Greed, Chaos, and Governance (New Haven, CT: Yale University Press, 1997) [Mashaw, Greed]. Ibid. at 115. C. Stivers, ed., Democracy, Bureaucracy, and the Study of Administration (Boulder, CO: Westview Press, 2001) at 159. D. Handelman and E. Layton, Bureaucracy and World View: Studies in the Logic of Official Interpretation (St. John’s, NL: Institute of Social and Economic Research, Memorial University and Toronto: University of Toronto Press, 1978) at 3. R. Baldwin and C. McCrudden, Regulation and Public Law (London: Weidenfeld and Nicolson, 1987) at 5. See, for example, the 2003 public hearings and report on racial profiling by the Ontario Commission. D. Rosenbloom, “Constitutionalism and Public Bureaucrats” The Bureaucrat (Fall 1982) 54. Handelman and Layton, supra note 20 at 12. J.D. White, “Images of Administrative Reason and Rationality: The Recovery of Practical Discourse” in H. Kass and B. Catron, eds., Images and Identities in Public Administration (Newbury Park, CA: Sage Publications, 1990) 132 at 135. See also O.C. McSwite, Legitimacy in Public Administration: A Discourse Analysis (Thousand Oaks, CA: Sage Publications, 1997). White, supra note 24 at 134. OHRC, Annual Report 1997-1998 (Toronto: Government of Ontario, 1998) at 11.

167

168 Notes to pages 107-11

27 Ibid. 28 OHRC, “The OHRC Restructuring Plan: Working Together for Improved Service” (May 1996). 29 Ibid. at 2. 30 OHRC, Annual Report 1996-1997 (Toronto: Government of Ontario, 1997) at 54. 31 Stivers, supra note 19 at 161. 32 OHRC, Annual Report 2001-2002 (Toronto: Government of Ontario, 2002) at 28. 33 OHRC, Backgrounder to Strategic Planning Consultation, “OHRC Strategic Plan 2001-2004: Next Steps” (8 May 2001) at 6 [OHRC, Backgrounder]. 34 Lawyer transcript 101. 35 M. Warner, Publics and Counterpublics (New York: Zone Books, 2002) at 11-12. 36 Ibid. at 50. 37 Ibid. at 56-58. 38 Warner referencing N. Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy” in C. Calhoun, ed., Habermas and the Public Sphere (Cambridge, MA: MIT Press, 1992) 118 at 122. 39 Some examples include the four groups below, which are chosen as representative because all provide regular advocacy for human rights complainants, and all consult with the Commission on policy development, considered by the agency and by themselves to speak on behalf of the “human rights community.” Others are also active in these dual roles, including private law firms. ARCH (originally known as Advocacy Resource Centre for the Handicapped) is a community-based, not-for-profit legal clinic and resource centre for persons with disabilities. Founded in 1980, it is dedicated to defending and advancing the equality and rights of persons with disabilities. In 2000, ARCH initiated a strategic planning process to determine goals, priorities, direction, and resource allocation. It regularly engages in law reform activities. Online: ARCH: A Legal Resource Centre for Persons with Disabilities, http://www.arch-online.org. HIV & AIDS Legal Clinic Ontario (HALCO) is another of the Ontario speciality legal clinics. Originally a project offshoot of ARCH, it was established in 1997 in partnership with the AIDS Committee of Toronto and the Toronto People with AIDS Foundation to provide legal representation (except in criminal and family law matters), public education, and law reform. Law reform activities are frequently based in community development initiatives. Online: HIV & AIDS Legal Clinic Ontario, http://www.halco.org. The Centre for Equality Rights in Accommodation (CERA) is a non-profit organization that promotes human rights in housing by using domestic and international human rights law to address issues of homelessness and poverty. It terms the Human Rights Code the most important piece of legislation in Ontario, and notes that “while there are significant problems with the process of enforcing rights under the Code ... with help from CERA, many complainants are succeeding.” CERA has been an active advocate with submissions to provincial legislative committees, human rights law reform commissions, and international partnering. Online: Centre for Equality Rights in Accommodation, http://www. equalityrights.org/cera. The Centre for Spanish Speaking Peoples is a multi-service agency founded in 1974 to provide support for immigrant settlement and adaptation. With a legal

Notes to pages 111-18

40 41 42 43 44 45 46 47 48

49 50 51 52 53 54

55 56 57

counselling program originally staffed by volunteer law students begun in 1975, it was incorporated as a legal clinic in 1978. It also operates language and citizenship classes and a women’s program. While it does advocacy work, the advocacy role is not well developed and tends to be situational, such as submissions on immigration reform proposals. Online: Centre for Spanish Speaking Peoples, http://www.spanishservices.org. See, similarly, T. Oberweis and M. Musheno, Knowing Rights: State Actors’ Stories of Power, Identity and Morality (Aldershot, UK: Ashgate Publishing, 2001) at 5. Chief Commissioner K. Norton, in the Preface to OHRC, Human Rights Policy in Ontario, 2d ed. (Toronto: OHRC, 1999) at 7. OHRC, Annual Report 1996-1997, supra note 30 at 63. Lawyer transcript 102. Staff transcript 306. Lawyer transcript 105. Complainant transcript 06. Lawyer transcript 111. Blencoe v. B.C. (Human Rights Commission), [2000] S.C.J. No. 43. (QL SCJ) [Blencoe]. After his assistant publicly alleged sexual harassment, this BC Member of the Legislative Assembly stepped down as Minister of Municipal Affairs, was removed from Cabinet, and was dismissed from the party caucus. Two sexual harassment complaints were filed with the BC Human Rights Council. After investigation, hearings were scheduled thirty-two months after the filing of the complaints. Blencoe argued that the Human Rights Council jurisdiction over the complaint was lost due to unreasonable delay. The BC Supreme Court dismissed the application for judicial review, finding that communications on the case had been ongoing. Blencoe appealed, arguing that his s. 7 Charter rights had been violated. The BC Court of Appeal allowed his appeal, ordering a stay. The Supreme Court of Canada overturned the stay, ordering an expedited hearing. It held that while Blencoe had suffered serious prejudice to his psychological integrity as a result of the allegations, the direct cause was not delay of the human rights process but the allegations, the publicity, and the ensuing political consequences. While respect for the inherent dignity of the person is clearly an essential value in our society, it is not a freestanding constitutional right but an underlying value. Section 7 of the Charter does not include the right to be free from the stigma associated with a human rights complaint. Ibid., per LeBel J. at para. 178. OHRC, “Submission to Ontario Human Rights Code Review Task Force” (May 1992) at 19 [OHRC, “Submission”]. Preamble to the Code, R.S.O. 1995, c. H.19. OHRC, “Submission,” supra note 50. Ibid. The Task Force submission contains the assertion of the fundamental principle, “The public interest in the eradication of societal discrimination should have paramountcy in the resolution of systemic, Commission-initiated complaints” (emphasis added): ibid. Lawyer transcript 106. Ibid. Lawyer transcript 109.

169

170 Notes to pages 119-24

58 Lawyer transcript 108. 59 Staff transcript 302. 60 OHRC, Mediation Services Participant Satisfaction Report (Toronto: Queen’s Printer for Ontario, 1999). 61 The Report defines the public interest mandate of the Commission as “the need to protect and promote broader issues of equality and access as well as prevent further discrimination, where appropriate, through individual human rights complaints”: ibid. at 3. 62 Ibid. at 25. The evaluation surveyed participants in the 201 mediations conducted between 8 May and 22 September 1998. While a typical mediation from this period involved between five and seven participants, including mediators, the Commission received 240 replies to the survey, for a roughly 20 percent return rate (at 12). 63 Ibid. at 27. 64 Ibid. at 26. 65 “[T]he Mediation Officer will be able to provide information regarding whether the public interest in a complaint has been addressed to the likely satisfaction of the Commission ... If the parties are ignoring the public interest component, the Mediation Officer will bring this to their attention. Also if the proposed terms of settlement do not address an identified public interest issue, the Mediation Officer will provide information based on case law and precedents to the parties, regarding the sorts of remedies that the Commission would be looking for to address the matter.” OHRC, Enforcement Procedures Manual (April 1997) pt. 3 at 4 [OHRC, Enforcement Procedures Manual]. 66 P.A.N. Gupta, “Reconsidering Bhadauria: A Re-examination of the Roles of the Ontario Human Rights Commission and the Courts in the Fight against Discrimination” (L.L.M. Thesis, University of Toronto, 1993) [unpublished] at 48. See also Garnhum v. Canada (Deputy Attorney General), [1996] 120 F.T.R. 1 (F.C.T.D.) [Garnhum]. 67 Johnson v. Corporation of the City of Hamilton (1992), 15 C.H.R.R. D/254 (Ont. Div. Ct.). 68 Garnhum, supra note 66. 69 See Oliver v. Department of the Environment (Parks Canada) (1989), 11 C.H.R.R. D/456 (C.H.R.T.), and Cashin v. Canadian Broadcasting Corporation (No. 2) (1990), 12 C.H.R.R. D/222 (C.H.R.T.), where both complainants obtained judicial review ordering the Canadian Human Rights Commission to appoint a tribunal to adjudicate their complaints. In addition, complainants retained independent counsel to successfully pursue their complaints, but were not awarded costs against the respondent or the Commission. 70 Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 41(4). 71 See Ontario (Human Rights Commission) v. Ontario (Liquor Control Board) (1987), 8 C.H.R.R. D/4076 (Ont. Bd. Inq.), reversed on the issue of costs (1988), 9 C.H.R.R. D/4868 (Ont. Div. Ct.), as cited in Gupta, supra note 66 at 53, n. 225. 72 S. Day, “Rolling Back Human Rights in BC: An Assessment of Bill 53 – the Government of British Columbia’s Draft Human Rights Legislation,” Canadian Centre for Policy Alternatives Policy Brief (September 2002) at 10, online: Canadian Centre for Policy Alternatives, http://www.policyalternatives.ca/bc. 73 OHRC, Backgrounder, supra note 33 at 14.

Notes to pages 124-25

74 These functions are adapted from M. Jackman’s discussion of the institutional competencies of human rights commissions towards the implementation of social and economic rights in OHRC, Policy Dialogue: “Human Rights Commissions: Future Directions” (Toronto, 28 February 2000), online: Ontario Human Rights Commission, http://www.ohrc.on.ca/english/consultations/policydialogue-summary.shtml [OHRC, Policy Dialogue]. 75 See L. Sossin, “The Politics of Discretion: Toward a Critical Theory of Public Administration” (1993) 36 Canadian Public Admininistration 364; L. Sossin, “Redistributing Democracy: An Inquiry into Authority, Discretion and the Possibility of Engagement in the Welfare State” (1994) 26 Ottawa L. Rev. 1; L. Sossin, Law and Intimacy in the Bureaucrat-Citizen Relationship (Ottawa: Law Commission of Canada, 2000); Kass and Catron, supra note 4; J. Forester, ed., Critical Theory and Public Life (Cambridge, MA: MIT Press, 1985); McSwite, supra note 24; Stivers, supra note 19. 76 D. Morgan, “Administrative Phronesis: Discretion and the Problem of Administrative Legitimacy in Our Constitutional System” in Kass and Catron, supra note 4, 67 at 68. 77 Ibid. at 74. 78 Ibid. at 76-77. 79 While it would have been fascinating to observe fully the process of “communicative conflict” in an example of policy development and implementation, I was unable to do so within the scope of this field study. This remains a fertile area for future research. 80 See, for example, OHRC, Policy Dialogue, supra note 74. The objectives of this session included holding a high-level dialogue on social trends and international developments relating to human rights commissions, and consideration of the relationship between human rights institutions, governments, and civil society. 81 Grounded in the context of administrative decision making with regard to entitlements for families with special education needs, J.F. Handler makes an argument for a theory of public action: The Conditions of Discretion: Autonomy, Community, Bureaucracy (New York: Russell Sage Foundation, 1986) at 10-15. While one could argue that there are significant parallels between Handler’s example of the Madison County Public School Board, special needs parents’ advocacy groups, and individual families on the one hand, and the OHRC, equality rights advocacy groups, and individual human rights complainants on the other, it is not necessary to do so in order to explore the applicability of Handler’s theory. In particular, this discussion does not pursue the issue of agency discretion. While a significant aspect of Handler’s argument is that a legal adversarial approach is inappropriate for a continuing discretionary relationship, I attempt here to extricate the premises he associates with autonomous social agents (parent advocacy groups), not to contend that the relationships, dependencies, and obligations of a human rights commission and a school board to their publics are comparable. An obvious distinction is that a school board is headed by elected officials. Furthermore, the human rights administrative framework and basic due process formalities dictate that the determination of individual cases and the consultation/policy development process be distinctly separate functions. It is a complicating feature of the current case example that

171

172 Notes to pages 125-38

82 83 84 85 86 87 88 89 90 91 92

multiple advocacy groups interact with the Commission both as legal representatives and consultative groups. Handler’s theorizing is useful here, however, because of its insights into local policy development practices and for the parallels that can be drawn between the dual representative and lobby functions of parent advocacy groups and human rights advocacy groups. Ibid. at 263. Lawyer transcript 105. OHRC, Backgrounder, supra note 33 at 5. Ibid. at 6. Lawyer transcript 106. Handler, supra note 81 at 106-7. Ibid. at 245. Ibid. at 218. Stivers, supra note 19 at 230. McSwite, supra note 24 at 269. Lawyer transcript 108.

Conclusion 1 B. Yngvesson, “Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in a New England Town” (1988) 22 Law & Soc’y Rev. 409. 2 R. Ericson and P. Baranek, The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process (Toronto: University of Toronto Press, 1982); see also T. Oberweis and M. Musheno, Knowing Rights: State Actors’ Stories of Power, Identity and Morality (Aldershot, UK: Ashgate Publishing, 2001). 3 L. Mather, C. McEwan, and R. Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (Oxford: Oxford University Press, 2001) at 164. 4 Similarly, ibid. at 176. 5 L. Mayhew, “Institutions of Representation: Civil Justice and the Public” (Spring 1975) 9 Law & Soc’y Rev. 401 at 404. 6 S. Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago: University of Chicago Press, 1990) at 179-81. 7 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. 8 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. 9 Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Policy Services Branch, Ministry of Citizenship, 1992). 10 Such as those stipulated under the Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32.

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185

Index

accountability: and concept of fairness, 20-22; definition, 108; in OHRC policy development, 136-37; and the public interest, 108-10 Act to Promote Fair Employment Practices in Ontario, 5 adjudication of rights, 16, 19-20, 137-38, 149n91 administration process: in BC, 11-13; of complaints at OHRC, 31-36; costs and backlog of, 18, 43-44, 118-19; decision making of, 22-23, 107; and doctrine of fairness, 20-21; early reorganization of, 7; human rights reports’ conclusions on, 15, 18-19; Mashaw’s study of, 104-5; and policy changes, 27, 43-44, 44-45; and procedural rights, 7-8; and the public interest, 105-7, 124-26; and scope of boards of inquiry, 21-22. See also complaint processing; frontline staff; Ontario Human Rights Commission (OHRC); policydriven administration administrative agencies: structures of, 106-7; studies on, 124-26, 133. See also Ontario Human Rights Commission (OHRC) administrative law scholarship, 36-38 ADR (alternate dispute resolution), 56-57, 120, 137 advocacy agencies. See lawyers/legal counsel; special interest groups

Advocacy Resouce Centre for the Handicapped (ARCH), 17, 168n39 agency capture, 105 alternate dispute resolution (ADR), 56, 57, 120, 137 anti-discrimination legislation/ policies: in Canada, 1-3; enforcement goals, 138; explanation of failure of, 8-9; in 1940s and 50s, 4-5; in 1960s and 70s, 5-6; in the workplace, 15, 114, 163n32 ARCH (Advocacy Resource Centre for the Handicapped), 17, 168n39 Auditor General of Canada, 13-14 Baker v. Canada (Minister of Citizenship and Immigration), 20, 137 Baranek, P., 92, 133 B.C. Human Rights Commission v. B.C. Human Rights Tribunal and Shannon, 103 BC Human Rights Coalition, 13 BC Human Rights Council, 11 BC Human Rights Tribunal, 12-13 Black, William, 11-13 Black Report, 11-13 Blencoe v. B.C. (Human Rights Commission), 115 Blum, Sid, 3 Board of Governors of Seneca College v. Bhadauria, 6 Board of Inquiry: importance of, to lawyers, 55-56, 61, 84; rarity of, 15,

Index

22-23; role in complaint processing, 35-36, 121, 122; role in early OHRC, 5, 7; scope of, 21-22 Borovoy, Alan, 3, 145n52 British Columbia, 11-13, 24, 101-2, 103, 149n95 British Columbia Human Rights Commission, 12-13, 123, 148n88 Brown, Rosemary, 28 Bumiller, K., 67, 70 bureaucracy. See administration process; administrative agencies; frontline staff; Ontario Human Rights Commission (OHRC) Canada Trust v. Ontario (Human Rights Commission), 100-1 Canadian Human Rights Act, 13-14, 101 Canadian Human Rights Act Review. See La Forest Report Canadian Human Rights Commission (CHRC), 13-15, 16, 102-3, 148n88 Canadian Human Rights Tribunal, 14 Cashin v. Canadian Broadcasting Corporation (No. 2), 170n69 Centre for Equality Rights in Accommodation (CERA), 17, 153n34, 168n39 Centre for Spanish Speaking Peoples, 168n39 CERA (Centre for Equality Rights in Accommodation), 17, 153n34, 168n39 Charter of Rights and Freedoms, 8, 64-65, 169n48 CHRC (Canadian Human Rights Commission), 13-15, 16, 102-3, 148n88 Christie v. York Corporation, 2 church organizations, 3-4 civic groups. See special interest groups clients. See complainants Commercial Union Assurance v. Ontario Human Rights Commission, 36 communicative conflict, 125-27, 129

community groups, 11, 12, 51, 126. See also special interest groups complainants: and accessibility to human rights system, 136-37; attempts to draft their complaints, 91-92, 93-94; and complaint “culture,” 46; confusion over filing process, 76-78, 89; difficulty with definition of human rights, 67-68, 74-75, 76-78; and expectation of legal success, 70, 83, 85; frontline staff’s relations with, 40-41, 41-42, 76-79, 80, 81; interest in public interest remedies, 114, 117-18; meanings placed on rights violations, 72, 73, 74-75; pressure on, to settle, 5, 10, 16-17, 119-20, 121-22; refusing to recognize discrimination, 69-70, 71, 81; relations with lawyers, 52-53, 74, 81-83, 85, 87, 93-94; seeing OHRC as advocate, 81, 121; sense of validation gained from process, 54-56, 82, 85-86, 88, 94-95; using discrimination as basis of claim, 67-70; using group identity for status, 71-72. See also complaint processing complaint processing: how it works at OHRC, 5, 29-30, 31-36, 79; reviews of, 9-10, 11-15, 18-19; slowness and unsatisfactory nature of, 18-19, 40-41, 42-44; turning complaints into cases, 66-67, 75, 87-88, 92-93, 134. See also administration process; Board of Inquiry; complainants; frontline staff; gatekeeping/screening; investigation of complaints; lawyers/legal counsel; mediation; Ontario Human Rights Commission (OHRC); settlement of cases conciliation: and fairness, 137; frontline staff’s view of, 119-20; lawyers’ view of, 56, 118-19; at OHRC, 5, 34-35, 119-21. See also settlement of cases Conklin, W., 88 Conley, J., 57

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188 Index

contracting out, 13. See also privatization Cornish, Mary, 9 Cornish Report, 10, 16, 18, 116, 150n107 counterpublics, 111, 168n39. See also public interest Court Challenges Program, 158n116 covenants, racially restrictive, 2-3 Crothers, L., 38 Day, Shelagh, 123 disability rights, 6, 43, 92, 126, 156n92, 163n51 discrimination: added to Human Rights Code, 6; anti-discrimination enforcement goals, 138; as basis of complaints, 67, 68, 69-70, 75, 114; and Canadian immigration policies, 1, 2; complainants refusing to recognize, 69-70, 71, 81; interpretations of, 64-66. See also anti-discrimination legislation/policies; racism dismissing cases. See gatekeeping/ screening dispute processing/resolution, 9, 17, 56-57, 120, 137. See also settlement of cases Re Drummond Wren, 2, 143n10 Due Process in the Administrative State (Mashaw), 104-5 Dupuis, Renée, 13 Egerton, George, 3-4 Emerson, R. v., 4 employer/workplace: and antidiscrimination policies, 15, 114, 163n32; frontline staff and, 40, 119; and “nuisance” settlements, 17, 119; and OHRC settlement conditions, 117-18. See also respondents Employment Equity Act, 14 Enforcement Options at OHRC, 28-30 Ericson, R., 92, 133 Fair Accommodation Practices Act, 4 Felstiner, W., 17, 48

Franklin v. Evans, 2 freedom of commerce, 2 freedom of contract, 2-3 frontline staff: administrative law scholarship on, 36-38; on complainants’ sense of validation, 85-86, 94-95; consulting with colleagues on complaints, 80-81; cuts to, 8, 29, 44; dealing with respondents, 40, 42-43, 119, 155n78; difficulties caused by policy changes, 29-30, 43-45, 81; drafting complaints, 91-92; establishing validity of claims, 86-87, 89-90, 95-96; explaining human rights to complainants, 76-79; and gatekeeping, 31-32, 42, 76, 79-80; how they feel about their jobs, 38-41, 80, 112-13; how they see claims of rights violations, 72-73, 74, 76-77; and Human Rights Code, 39, 78, 87, 91, 163n51; mandated role of, 26, 133; on mediation/conciliation, 119-20; mistaken by complainants as advocates, 81, 89; processing complaints, 31-33; relations with complainants, 40-42, 76-79, 80, 81; testimony of, in OHEC Report, 2728; turning complaints into cases, 87-88, 89-90; view of the public interest, 99, 112-13; view of their role, 79-80, 85-86, 91; workload and stress of, 37, 39-43, 46-47, 91, 158n123. See also administration process Garnhum v. Canada (Canadian Human Rights Commission) (re Canadian Armed Forces), 102-3, 122 gatekeeping/screening: in BC human rights administration, 12, 13; in Canadian Human Rights Commission, 14; by frontline staff, 31-32, 42, 76, 79-80; by lawyers, 54; lawyers’ view of, by OHRC, 52-53; by OHRC, 15-17; through Human Rights Code, 16, 29, 32-33 Greed, Chaos, and Governance (Mashaw), 105

Index

Griggs v. Duke Power Company, 6 Grosch (County Court Judge), 4 HALCO (HIV and AIDS Legal Clinic Ontario), 168n39 handicap rights. See disability rights Handler, J.F., 125-26, 127 harassment, 6, 52-53, 67-68 hearings, 10, 13, 55-56, 61, 84. See also Board of Inquiry HIV and AIDS Legal Clinic Ontario (HALCO), 168n39 human rights: complainants understanding of, 66, 74-75, 76-78; as defined in statutes, 64-66; individuality v. group identity in, 71; popular understanding of, 67-68; and structural inequity, 10-11; success in protecting, in Canada, 128-29. See also Human Rights Code (Ontario); Ontario Human Rights Commission (OHRC) human rights centres, 10 Human Rights Code (Ontario): complainants changing stories to fit the Code, 91, 93-94; different interpretations of, 52-53, 74; and frontline staff, 39, 78, 87, 91, 163n51; gatekeeping under Section 34, 16, 29, 32-33; introduction and early revisions to, 5-7; Preamble on human rights, 65, 139; provisions on functions of OHRC, 139-40; and the public interest, 106, 116; Supreme Court’s reaction to, 6-7; text of section 32(1), 165n76 immigration policies, 1, 2 Indian Act, 13 Insurance Corporation of British Columbia v. Heerspink, 101-2 intake staff. See frontline staff intermediaries. See lawyers/legal counsel; special interest groups investigation of complaints, 18, 34-35, 121 Jain, Harish, 13 Joachim, M.K., 7-8

Johnson v. Corporation of the City of Hamilton, 122, 150n101 judicialization of rights, 16, 19-20, 137-38, 149n91 La Forest, G., 101 La Forest Report, 13-15, 16, 150n107 Labour Committee on Human Rights (LCHR), 3 Lamer, Antonio, 102 Law v. Canada (Minister of Employment and Immigration), 137 lawyers/legal counsel: in BC, 11, 18; conditions of work, 50, 58-59, 61; desire for ownership of discrimination claims, 10, 61, 116-17; desire to reform institutions, 51, 55, 6061, 82; importance of hearings to, 55-56, 61, 84; and judicialization of rights complaints, 19-20; “managing” the OHRC, 51, 52, 59-60; on OHRC gap between ideal and real, 112, 113; on OHRC’s gatekeeping, 52-53; on OHRC’s incompetence, 52-53, 57-59, 87, 110, 116-17; professional motivation of, 26, 5456, 72, 133-34; public education by, 93, 159n133; and the public interest, 99, 110, 120; rejecting cases, 53-54; relations with clients, 52-53, 74, 81-83, 85, 87, 93-94; relations with OHRC, 44, 59-60, 83-84, 155n84; role in processing complaints, 18, 51-52, 59-60; role of, assessed in reports, 19, 150n107; and special interest groups, 111-12; studies on law-work, 47-49; successful intervention of, 83-84; turning complaints into cases, 86-87, 88-89, 92-93; view of mediation/ conciliation, 56, 57, 118-19 laypersons. See complainants LCHR (Labour Committee on Human Rights), 3 LeBel, L., 115 legal clinics, 14, 24, 51, 149n95, 168n39 A Legal Resource Centre for Persons with Disabilities, 17, 168n39

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Lipsky, M., 37, 38 litigants, 57. See also complainants Macdonald, R.A., 17, 57 Mashaw, J., 104-5 Mather, L., 48, 133 Mayhew, L., 134 McConville, M., 48 McIntyre, W., 102 McKay, R. v., 4 mediation: in Black Report, 12; and complainants, 119-20, 121-22; frontline staff’s view of, 119-20; how it’s conducted at OHRC, 5, 34, 119-21; lawyers’ view of, 56, 57, 118-19; and the public interest, 120-22; survey on, 120-21. See also settlement of cases Menkel-Meadow, C., 49 Merry, S., 135 Morgan, D., 124-25 Mullan, David, 98-99 Nancy Bridges v. Ontario Human Rights Commission, 153n34 Noble and Wolf v. Alley, 2-3 Noël, Simon, 102-3 O’Barr, W., 57 OHEC (Organizational Health and Effectiveness Committee), 27-28 OHRC. See Ontario Human Rights Commission (OHRC) Oliver v. Department of the Environment (Parks Canada), 170n69 Ontario government, 26-27, 137. See also policy-driven administration Ontario (Human Rights Commission) and O’Malley v. Simpsons-Sears Ltd., 102 Ontario Human Rights Commission (OHRC): and accountability measures, 108-9; case load, 7-8, 151n4; conflict between public and private interests, 115-16, 121-22; corporate interests of, 106, 107, 109; costs to, 122; cut out of cases by lawyers, 116-17; cutbacks to, 2930, 44, 113; established, 5-6; funding of, in 1980s and 90s, 7, 8,

45; gap between ideal and real, 15, 112-13, 116, 131; and gatekeeping, 15-17, 52-53; how complaint processing works, 5, 29-30, 31-36, 79; investigation of complaints, 18, 34-35, 121; lawyers’ view of, 52-53, 57-59, 73, 87, 110, 116-17; mandate, 6, 7, 31, 107, 139-40; and mediation/ conciliation, 5, 34, 119-21; public credibility of, 73, 109; and racism cases, 84, 114; restructuring plans, 30, 107-8; and settlement conditions, 116-18; and special interest groups, 9, 110-11, 125-28, 136; work atmosphere at, 25-28. See also Cornish Report; frontline staff; Human Rights Code (Ontario); lawyers/legal counsel; policy-driven administration; public interest; settlement of cases Ontario Human Rights Code Review Task Force (1991). See Cornish Report Ontario Public Service, 29-30 Organizational Health and Effectiveness Committee (OHEC), 27-28 Pitfield, I., 103 policy-driven administration: Accountability Framework, 108; and consultation with rights’ groups, 9, 125-28, 136; and difficulties for OHRC staff, 29-30, 43-45, 81; “Enforcement Options,” 28-30; and fiscal restraint, 8, 26-27; OHEC report, 27-28; and the public interest, 107-8, 116, 124-26; in 1980s and 90s, 7-8; and sudden changes in policy direction, 43, 126 Primus, Richard, 73 privatization, 13, 19, 25, 137-38 Prottas, J.M., 80 public accountability. See accountability public administration. See administration process; administrative agencies; Ontario Human Rights Commission (OHRC); policy-driven administration public choice theory, 103-5

Index

public education: and advocacy groups, 168n39; in BC, 11, 24, 149n95; by frontline staff, 155n78; by lawyers, 93, 159n133; and legal clinics, 14, 24, 51, 149n95, 168n39; in Ontario, 51, 108; on racism, 114 public interest, 98-129; and accessibility, 136-37; administration and, 105-7, 124-26; assessment of, in reports, 10, 11, 12, 14-15, 116; in case law, 100-103; complainants’ interest in, 114, 117-18; definitions of, 111; frontline staff’s view of, 99, 112-13; in Human Rights Code, 106, 116; lawyers’ view of, 99, 110, 112, 120; and mediation, 120-22; OHRC’s divided loyalties in protecting, 11315, 117, 121; in OHRC’s mandate, 6, 107-9, 124; and policy-driven administration, 107-8, 116, 124-26; and private justice, 16, 117; in privatized system, 123, 137-38; and public choice theory, 103-5; respondents’ view of, 120-21; seen as a public process, 98-100; special interest groups and, 12, 111-12, 123, 125-28; stated in OHRC documents, 34, 106, 107-9, 120-21 public service workers. See frontline staff Quebec, 149n95 Racial Discrimination Act (1944), 2 racism: 1992 report on, 10; as basis of complaints, 69-70; in Canadian life, 1-3; internalized, 75, 163n40; in OHRC cases, 84, 114 Rae government, 26-27 respondents: complaint process used to intimidate, 84-85; and frontline staff, 40, 42-43, 119, 155n78; view of the public interest, 120-21. See also employer/workplace Ricoeur, Paul, 73 rights-consciousness, 7, 8, 45-46, 128-29

Robichaud v. Canada (Treasury Board), 101 Rosenberg, M., 122 Sarat, A., 48 Saskatchewan, 149n95 screening. See gatekeeping/screening settlement of cases: alternate dispute resolution, 56-57, 120, 137; based on OHRC funding levels, 118-19; complainants’ view of, 119-20, 12122; employers’ view of, 17, 117-18, 119; by lawyers without OHRC, 116-17; pressure for, 5, 10, 16-17; and the public interest, 120-22 social justice movements, 3-4, 7 soft law, xi special interest groups: early advocacy of, 3-4; in human rights commissions’ reviews, 11, 12; in public choice theory, 104, 105; and the public interest, 12, 111-12, 123, 125-28; relations with OHRC, 11011; rise and growth of, 50-51; role in OHRC policy, 9, 125-28, 136 stakeholders. See special interest groups street-level bureaucrats, 36. See also frontline staff structural inequity, 10-11 Supreme Court of Canada, 3, 6, 2021, 101-2, 169n48 Tarnopolsky, W., 100 tribunals, 13, 14, 36, 121, 122. See also Board of Inquiry Vinzant, J.C., 38 Walker, J.W., 1-2 Warner, M., 111 workplace. See employer/workplace Yngvesson, B., 133 Young, Donna, 10

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