Wednesday, October 26, 2011

The Challenges of Human Rights

I've tried to write a policy-oriented human-rights entry a couple of times, and abandoned the attempts before.  The challenge is that I really am a centrist in this area.  Unlike many on the right, I believe in human rights.  I think that they are important to a fair and democratic society, and that their growth is a very positive thing for Canada.  However, unlike many on the left, I do understand the objections to an overly broad approach to human rights.  So I'm trying to strike a delicate balance.

The "Human Rights Have Gone Too Far" Camp

On the one hand, let's look at the far-right, such as polemicist Ezra Levant, who argues that the 'human rights commissions' are out of control.  It's difficult to completely ignore the imprecision and overbreadth in Levant's language:  He generalizes human rights on the national stage based on his experience with the Alberta Human Rights Commission, and there are some very significant differences between systems, relevant to his objections.    He argues that Human Rights Commissions and Tribunals are "kangaroo courts", with unqualified adjudicators appointed by the government.  He also uses criminal language - referring to the initiation of the proceeding as being a 'charge', referring to the proceedings as 'prosecutions', findings of Code breaches as 'convictions', and awards of compensatory damages as 'fines' - all of which is incorrect and misleading, in an attempt to set up an argument that the government should bow out of these essentially civil disputes and let the Courts handle it.

There are no fewer than four massive problems with Levant's position that the Human Rights Commissions and Tribunals are unqualified bureaucrats expanding the interpretation of human rights unduly beyond what it can reasonably bear.

(1)  These are administrative tribunals.  I've blogged about administrative tribunals on several prior occasions, and the key thing here is that they are *everywhere*.  There are literally hundreds of them across the country, of different shapes and sizes, specifically designed to address certain types of disputes.  The point is to take the strain off of Courts, and provide a - hopefully - expedient avenue of recourse for these disputes.  Not to suggest that these processes are perfect - far from it - but neither are the Courts, and in specific contexts the flaws of administrative tribunals are preferable to the flaws of the Courts.  Many lawyers dislike administrative tribunals generally.  The objections Levant raises are common to many of these tribunals, but he treats the human rights processes as being uniquely appalling, and even has a prominent link on his web site seeking "donations" for his ongoing campaign against "the HRC".  And Levant's solution of handing off human rights disputes to the Courts would be catastrophic:  The vast majority of legitimate human rights complaints result in awards in the four-digit range or the low five-digit range.  The existence of such civil claims often create a tragic hole in the 'access to justice' coverage, because even a plaintiff who can afford to pay a lawyer to bring such a claim...won't and shouldn't, because they'll pay more to the lawyer than the claim is worth.

(2)  Human rights proceedings are almost always civil disputes between private parties.  The implication of 'prosecution' is that the 'bureaucrats' are starting these proceedings of their own initiative.  That is very seldom the case.  In most cases, the proceedings are initiated by people who feel that their rights under the Code have been violated; the mandate of the Human Rights Tribunals is to adjudicate these disputes.  This is not unlike the Landlord Tenant Board, adjudicating disputes between residential tenants and landlords.

(3)  Human Rights Tribunals are subject to judicial oversight.  If the Tribunal committed a reviewable error, including misinterpretation of the Code, then judicial review can be sought.  All Tribunals and Courts make mistakes from time to time, and so, outside of the Supreme Court of Canada, no judicial or quasi-judicial body is completely immune from appellate/judicial review.  (Some would argue that the expense of this is prohibitive.  Yes, Court is expensive.  That's a big reason we have the Tribunal in the first place.  Moreover, once you get to that level, one of Levant's key objections to the tribunal process, being the unavailability of cost sanctions, dissolves.)

(4)  Human rights do not exist at common law.  The judges I've talked to about the topic don't want jurisdiction to handle human rights disputes.  At the ground level, these are tricky issues, requiring expertise in terms of how the relationships triggering human rights disputes work.  This is why we don't use judges to adjudicate these decisions, but lawyers and other professionals experienced in labour relations and other Code-related areas.  Indeed, the Commissions and Tribunals simply interpret what the government enacts.  The government is free, subject to constitutional constraints, to change the language if they feel the intention behind it hasn't been correctly interpreted.

Many of Levant's criticisms are anecdotal in nature, taking examples which are on the fringe.  For example, he wrote in November 2010 of a pastor who had been "fined" - not so, it was a compensatory award to a complainant - for writing a letter to the editor "criticizing gay marriage" (which is a *very* mild way of characterizing the letter's contents).  Levant neglected to mention that the Tribunal's decision had, in fact, been reversed on judicial review, highlighting that it was, in fact, a borderline case.

That being said, I don't necessarily disagree with all of Levant's objections.  One of his most persuasive pitches is the one he makes against the anti-hate speech provisions contained in some - that's right, not all - of the human rights statutes in Canada.  That doesn't exist in Ontario, so it's not something I've developed a strong feeling about.  While I understand the policy motivations behind such a provision, I also understand Levant's objections on the basis of free speech, and I'm inclined to think that such a provision is unworkable.  There are clear lines that shouldn't be crossed in criminal legislation, and I think we can leave it there.

It's a shame that this message gets lost when Levant muddies the water with his polemicist rhetoric, crusading with equal vigour against the human rights processes generally and other applications of substantive human rights.

To give a lay perspective, let's look at my father.  My father is a retired police officer, and pretty far right, and we have some interesting conversations.  I've had clients whose workplaces had pretty flagrant human rights breaches...for example, a woman obligated to wear dresses - not pants - even when men performing similar job functions were fine in ripped jeans...and my dad's viewpoint on these cases is that, if these employees knew about the job conditions before going in, and agree to it, they shouldn't really complain about it afterward.  I respond with the question, "Okay, what if somebody agreed to work for $2/hour?  Should they not be able to complain about it afterwards?"  His response was, "Well, we have minimum wage laws, so that would be illegal."  He didn't recognize that human rights and employment standards are similar in the way they legislate over the freedom to contract.

There *are* legitimate human rights issues out there, major issues that the majority of Canadians would agree should be addressed. (Mind you, there are still surprising numbers of people who think that an employer should be able to fire an employee who gets pregnant, judging from public reaction to the Jessica Maciel case.)  There are also more marginal issues, that perhaps don't have the same clear-cut answers, such as Bill Cosby's right not to be harassed on the basis of race by Chris Rock at a comedy club.  And there are trickier questions as well where human rights obligations may conflict with other legal obligations such as occupational health and safety.  (See, for example, the recent decision in Loomba v. Home Depot.)

The Other Side:  Human Rights Breaches are Everywhere

I've mentioned Professor David Doorey before, as having a workplace law blog I follow and sometimes comment on.  He made a post a while back about the Starbucks employment application breaching the Human Rights Code by asking what high school the applicant attended and whether or not the applicant is available to work overtime.

Let's be clear:  There are certain questions which are clearly illegal.  Do you have kids?  How old are you?  Are you married?  What are your religious beliefs?  You can't ask these of a job applicant.  But these questions don't seem so inherently unreasonable.

Ontario Human Rights Commission literature backs him up on the 'high school' question.  And the logic seems to be that asking what school a person went to can reveal a great deal about their religious background, racial background, place of origin, etc.  The overtime question is seen as troublesome because people who have families are far less likely to be able to work overtime.

I have a hard time accepting such a broad interpretation of the Human Rights Code.  The high school question...well, if the fact that a question may reveal factors with a probable connection to a prohibited ground made the question itself illegal, then the result would be that just about any question would be illegal. Heck, the "name" field would likely be illegal.  These questions are clearly not proxies to pick up information to classify people on discriminatory grounds.  And if Microsoft were unable to distinguish between a Computer Science degree received from the University of Waterloo versus some less prestigious institution, that would strike me as being a commercially absurd result, extended the prohibited grounds to covering "where did you get your education"?  (And if an employer wants to see a transcript...well, you can just about forget that, no?)

The overtime trickier.  Yes, people with kids are less likely to be able to work overtime.  Yes, that ends up being a discriminatory result if people are going to be treated differently on the basis of a "no" answer.  Yet the similar extension of this principle would be that it would be illegal to advertise positions for full-time only, or for certain hours.  Or to ask how much travel a potential employee is willing to do.  Again, where it doesn't seem to me that hours of availability are a clear proxy for a prohibited ground, I think that the commercial absurdity of the result is hard to justify.

Problems of Perception

One further difficulty is that people don't really understand what "human rights" means.  Even some very sophisticated people don't understand that it isn't just a venue for dealing with general unfairness.  It addresses unfairness on some very specific bases.  So people think "If I'm treated unfairly, it's a human rights matter", leading to frivolous and vexatious proceedings, leading to others criticizing the Tribunals for hearing such frivolous matters.

Let's be clear.  *Most* human rights applications seem to fall into one of three categories:

(1)  Not in the Tribunal's jurisdiction.  Whether because not based on a prohibited ground, not in an applicable social category, or because of some other jurisdictional bar, the proceeding gets shut down early because the Tribunal can't hear it.

(2)  A case with substantial personal importance and a bona fide human rights-based objection.  For instance, consider the mandatory retirement cases.  Clearly, there are some circumstances in which mandatory retirement might be justified.  That cannot be carte blanche for people to discriminate against the elderly.  Thus, a person facing mandatory retirement, win or lose, can't be faulted for arguing the case before the Human Rights Tribunal.

(3)  A case with deeply unacceptable conduct by the respondent, if perhaps not a great deal of direct personal importance.  A good friend of mine and law school classmate is visually impaired, and uses a service animal.  (The dog has quite the character, too. Very quiet, never made much noise or disrupt classes, but would occasionally snore or snort at times that were very appropriate to the lecture material.)  I noticed a case a while back in the Tribunal's jurisprudence involving her being excluded from a store because of a "no animals" policy.  I doubt my friend was put to great hardship by the exclusion - no doubt she took her business somewhere else.  Yet I don't think she's seeking a big payout - really, if you look at the value of her time on an hourly basis, the award she'll probably get from the Tribunal at the end of the process will be less for her time than she could have billed on client matters.  It's the principle of the thing, and it's an important principle.  Most establishments permit service animals simply because it is a well-known law that they are obligated to.  If we didn't hold people to this obligation, then they would stop, and that *would* generate hardship.

While imperfect, as are all things human, the Human Rights Tribunals serve important policy objectives.  We need to scrutinize them, and decide carefully the form and substance of our human rights, but abandoning them would be a tragic mistake.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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