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1985 Report of the Auditor General of Canada

Overview

11.1 The Canadian Human Rights Commission (CHRC) was established under the Canadian Human Rights Act in March 1978. Its objective is to uphold the principle that all persons should have an equal opportunity to participate in all aspects of Canadian life, taking into account their duties and obligations in society. The Commission deals with discrimination complaints relating to any of 10 prohibited grounds specified in the Act, and it works to reduce and eliminate discriminatory practices through educational programs, guidelines and research. Its jurisdiction extends to all federal departments and agencies and to federally regulated private enterprises in areas such as transportation, telecommunications, and banking. The Commission estimates that some 1,500 organizations are subject to the Canadian Human Rights Act and, although all Canadians may seek recourse under the Act, with regard to goods and services offered by these organizations, their 3 million employees are more likely to do so.

11.2 In the 1984-85 Estimates, CHRC budgeted $9.2 million in expenditures and 156 person-years. The Commission's activities are organized under three main branches - Complaints and Compliance, Public Programs, and Research and Policy. It has seven regional offices located in major cities in Canada. Approximately 52 per cent of the budget is devoted to handling complaints.

11.3 At the time of our audit, the Commission had identified the need for changes in its management processes to improve its economy and efficiency. It was clarifying the roles and responsibilities of its staff, designing training programs for investigators, streamlining the complaints management process, developing new and improved working tools, and initiating a new computerized management reporting system. These initiatives, however, were in the planning or early implementation stages and therefore we were unable to assess their impact on Commission's operations.

Audit Scope

11.4 Our audit focused on the processing of complaints from individuals, the major program activity of the Commission. We reviewed the process for receiving, assigning, investigating, monitoring and controlling complaints during investigation, and we examined the procedures for reviewing work for adherence to quality expectations and disposing of complaints through decision. We also examined the Commission's interpretation of its role and mandate and its strategic and operational planning.

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Role and Mandate

11.5 Under the terms of the Act, the mandate of the Canadian Human Rights Commission is to:

    - receive and investigate complaints of discrimination;
    - obtain a resolution or settlement where discrimination is established; and
    - combat discriminatory practices and policies by means of information, public education and research.
11.6 In its 1981 annual report, the Commission stated that it has always defined its role as widely as possible, and that it is "an agency committed to social justice and social change in the broadest sense". The mandate to reduce discrimination and to promote equal opportunity for all is almost unlimited in scope. To assist the Commission in fulfilling its mandate, the Act confers upon it a twofold power of intervention. It has the power to act as an enforcement agent by investigating complaints, conducting a follow-up of settlements, appointing a human rights tribunal, appealing, if necessary, the decisions of a tribunal or filing its own complaint. It also has the power to provide advice and information to organizations and to the public by making available educational programs, instructional materials and research findings.

11.7 The Commission is required to play a reactive role in dealing with individual complaints and, mainly through this process, has developed an expertise in the areas of discrimination affecting large groups. It has not examined discriminatory systems or policies in organizations according to a precise plan and predetermined criteria. However, it has the power to initiate a complaint and to use the means it considers appropriate to discourage and reduce discrimination specified in the Act. For example, the Commission could initiate a complaint relating to an employer's hiring standards if it had reasonable grounds for believing that the employer had discriminated against women or disabled persons. In this regard, the Commission has not determined what grounds and circumstances would prompt it to initiate a complaint, or in what sectors it wishes to prevent discrimination. Consequently, staff were not fully aware to what extent and in what sectors the Commission wishes to take a more active approach.

11.8 In its dealings with employers, unions or employee groups and minority groups, which make up the bulk of its clientele, the Commission has always favoured a persuasive approach. However, according to some studies that it commissioned in 1983 and 1984, the Commission is perceived as being much more coercive than persuasive. It also emerged that these organizations or groups are not aware of all the CHRC services available to them.

11.9 The Commission's twofold mandate results in a dual role. This duality places the Commission in a difficult position. To what extent ought it to act as an enforcement agent, as opposed to an educator? To what extent and in what sectors ought it to adopt an active rather than a reactive approach? While the Commission can identify certain results that it has achieved, it has not so far been able to determine the extent to which its actions have, in fact, helped to reduce discrimination.

11.10 The Human Rights Commission should identify clearly the ways in which its dual mandate is to be fulfilled. This definition should be used to ensure development of appropriate long-term and short-term plans.

Commission's response: The Canadian Human Rights Act imposes the requirement to process complaints and, within the authorized budget, this limits the means available to fulfil the mandate for information and education.

Planning

Strategic Planning

11.11 Given the Commission's broad and somewhat unlimited mandate, strategic planning is essential for the effective development and implementation of its operations. The purpose of strategic planning is to anticipate future risks and opportunities and manage the organization accordingly. It involves analysing the environment to identify trends, opportunities and threats and to determine the impact these are likely to have on the Commission's strategies for achieving results. It includes analysing the organization's strengths and weaknesses, setting objectives, determining the costs and benefits of new or revised policies, and drawing up specific plans.

11.12 In enforcing the Canadian Human Rights Act, the Commission has publicly identified a large number of social changes that it would like to see adopted. These cover a broad range of issues, including abolishing mandatory retirement, introducing voluntary hiring quotas and mandatory affirmative action programs for women and the handicapped, and employee responsibility for safety measures.

11.13 The Commission has not implemented a strategic planning process to reflect senior management's strategy orientation concerning the Commission's evolution. We found no methodology that would enable it to carry out this activity. We found no evidence to indicate that it had examined options such as work on affirmative action, equality for visible minorities, systemic discrimination and so on; considered the potential impact on its resource requirements; or analysed the data relating to the Commission's environment that it needs to support its medium and long-range planning.

11.14 At present, the objectives and priorities that the Commission sets for itself are designed primarily to give short-term direction to its actions. They are not part of a long-range plan to ensure continuity and integration of the actions taken for fulfilling its broad mandate. We found that the complaints processing priorities set in the past three years have focused on three types of complaints: systemic, race and colour, and ethnic origin. However, the Commission has not specified what criteria and factors it has used to select these priorities, or what results it expects to achieve.

11.15 Managers blame the lack of long-term planning on the many pressures from government, changing priorities from within, increasing volume of work, and the shortage of resources. However, strategic planning would enable the staff to overcome some of the difficulties that exist. For example, if the Commission adopted clearer priorities concerning the types of social issues it wants to focus on, it would be in a better position to evaluate the impact on its operations of directions or suggestions from outside bodies. It could also integrate its activities more fully and make better use of its people.

11.16 The Human Rights Commission should develop and implement a strategic planning process and prepare a strategic plan to use for establishing long-term objectives and priorities, for operational planning, for measuring progress and results and for optimizing use of resources.

Commission's response: A strategic planning process will be developed and used as a basis for long-term and operational planning.

Medium-term and operational plans are an integral part of existing management systems for measuring progress and results.

Operational Planning

11.17 Our audit of the Commission's operational planning process dealt mainly with the determination, communication and use of annual objectives and priorities to allocate and control resources. Responsibility for operational planning is assigned to the Commission's directors and is given top priority by managers. Annual objectives are clearly defined, quantified as far as possible and discussed internally to ensure co-ordination, particularly between the Commission's functional and operational sectors. The objectives in their final form are used as a basis for quarterly reviews and managers' performance appraisals.

11.18 The operational planning process is implemented satisfactorily in the Commission and managers accord it primary importance. In our opinion, however, this management function, which is essential to the development and effectiveness of the organization, should be exercised within the framework of a defined strategic planning process.

11.19 The operational planning also deals with the management of workload. This is particularly important when there is an annual caseload of over 900 cases to be handled by approximately 35 investigators. At present, the Commission tries to handle complaints on a first come, first served basis. Although this could be a reasonable basis for operations if all complaints were simple and routine, in actual practice many factors must be considered in deciding which complaints to investigate first. The grounds for a complaint, the relationship between the complainant and respondent, their availability, the Commission's priorities and objectives, and past experiences of investigators are some factors that influence the priority assigned to investigations by investigators. We noted the Commission had not developed criteria or guidelines to help assign priorities to ensure that the workload is managed efficiently and all similar cases are handled consistently.

11.20 The Human Rights Commission's annual operational planning exercise should be based on and linked with its strategic plans. The Commission should develop criteria or guidelines to help assign priorities to investigations.

Commission's response: Operational planning will be linked with strategic planning. Criteria will be developed to direct managers involved in assigning priorities to investigations.

Management of Complaints and Compliance

Background

11.21 In 1984 the Commission responded to over 31,000 requests for information and accepted 414 formal complaints involving the 10 grounds of discrimination cited in the Act: race, colour, national or ethnic origin, religion, age, sex, marital status, family status, disability (physical or mental) and conviction for which a pardon has been granted. Exhibit 11.1 shows the complaints accepted by the Commission during the years 1980-84 by provinces and by grounds. Individuals may file a complaint when an organization subject to the Act has discriminated against them during hiring, employment or terminating employment or has refused to provide goods, services, facilities or accommodation on the grounds mentioned above. A complaint can also be made for unequal pay for male and female employees and for harassment.

(Exhibit not available)

11.22 Complaints received by the CHRC often raise matters that are both unique and controversial. For example, where no threat to safety of the other employees is involved, can an employer require an employee to comply with a safety directive that violates the employee's religious principles? Or what responsibility does an employer have to provide special facilities for employees with disabilities? Because the onus is on the Commission to determine that discrimination is involved, the complaints management process must be sensitive, especially to complaints of race discrimination or harassment. Consistent application of policies, work procedures and specialized tools are required to deal with these sensitive issues.

Description of the Process

11.23 Regional offices respond to complaints submitted to them and carry out investigations. Some complaints with national implications - for example, those relating to equal pay or systemic discrimination (arising from an organization's systems or policies and prejudicial to a class of persons) involve consultations with or are fully handled by headquarters.

11.24 The complaints submitted to the Commission are dealt with according to the standardized process shown in Exhibit 11.2. Each complaint must go through all stages, unless the complainant decides to withdraw it. Even in that case, a recommendation must be made for decision by the Commission members.

(Exhibit not available)

Delays in Investigating Complaints and Increasing Backlog

11.25 The major issue and operational challenge CHRC faces is to reduce the long delays in its investigation of complaints and to bring the backlog of complaints to a reasonable level. Although the Commission has the responsibility for dispensing justice within a reasonable time, it has so far been unable to do so for a large proportion of its cases because of a variety of environmental and internal reasons that are identified later in this chapter.

11.26 To illustrate the problem of long delays - an internal study in 1984 showed that 39 per cent of the 2,352 complaints accepted by the Commission to 30 June 1984 had taken over 12 months to reach the Commission members for a decision. Of the total, 21 per cent took over 18 months before the Commission made a decision. The Commission has used a general target of six months to process an average case.

11.27 These delays in handling complaints have a significant impact on the backlog of cases; at 31 December 1984, the backlog was 682. This was 36 per cent higher than 1983 and 12 per cent higher than 1982. Based on the rate at which the Commission has closed cases in the last three years, the backlog represented over two years of work. During the past three years, new complaints accepted have averaged over 350 per year. The impact of cases accepted and cases completed on the backlog is shown in Exhibit 11.3.

(Exhibit not available)

11.28 Another development in 1984 was the 45 per cent decline (from 422 in 1983 to 230 in 1984) in cases closed during the year. This decrease was attributed to the increase in workload caused by a July 1983 amendment to the Canadian Human Rights Act, more preliminary investigations, and the disclosure procedures adopted by the Commission whereby the contents of investigation reports are now made available to both parties.

11.29 Despite these factors, some of the causes of excessive backlog and delays in complaint handling are the weaknesses in the management process used by the Commission. The Commission agrees that the delays and backlog are excessive and has identified the need to improve its management processes.

Deficiencies in the Complaints Management Process

11.30 The general framework of the complaints management process is well defined and understood, and all complaints follow this defined process. The major problems, however, relate to lack of clear definition of roles and responsibilities of staff, lack of validated performance and work standards, and inconsistency in approach and practices.

11.31 Roles and responsibilities of staff at headquarters and in the regions, including those of the regional directors and investigators, as well as headquarters specialists, advisers and directors, need to be clearly identified. This deficiency has resulted in problems such as inadequate or late input on the part of specialists, confusion over "ownership" of recommendations in the case reports, friction between regions and headquarters, and low morale. Eventually all these problems affect the work and lead to more delays and more backlog.

11.32 The Commission has not validated its performance and work standards for planning and control and for justifying resources required, or for evaluating work. Although a six-month elapsed time is used as a general target for an average case, the Commission has not defined what would constitute such a case or validated this standard. The Commission estimates that an average investigation takes about 30 hours to complete. However, this length of time could not be substantiated by the Commission. Standards could be developed and validated for time spent and effort expended on routine cases. In the absence of these, investigators use their own varied experience, skill and work habits to carry out their work.

11.33 These standards could be validated by defining an average case, by recording the time required at each step in the process on a sample of cases, and by enforcing more stringently the requirement for accumulating time on each case.

11.34 Lack of formal training programs for new investigators is another factor that contributes to inconsistency in handling cases. Investigators were not sufficiently familiar with the operational guidelines and had developed their own working tools. Investigators were provided only minimum in-house training, and they learned most of their work on the job. This has had a negative impact on handling cases efficiently and economically.

11.35 At the time of our audit, as a result of an internal study, the Commission was in the process of defining the roles and responsibilities of staff and providing training to all investigators. These initiatives are to be implemented during 1985-86.

11.36 The Human Rights Commission should ensure that the roles and responsibilities of all levels of regional and headquarters staff are defined, agreed upon and communicated.

Commission's response: Roles and responsibilities of all levels of regional and headquarters staff were defined in November 1984. They are now being operationalized and are being communicated and refined through directives, manuals and formal training.

11.37 The Human Rights Commission should further develop and validate appropriate performance and work standards that can be used for allocating resources and for monitoring performance.

Commission's response: Performance and work standards have been used by managers to allocate resources and to monitor performance. These are being further developed and validated.

Lack of Methodology and Work Tools

11.38 The Commission's major activity since its establishment in 1978 has been complaints investigations. It has received over 2,600 formal complaints. It has not, however, implemented a standard methodology and required the use of work tools to assist investigators in conducting their investigations. Methodology and work tools can be used to help ensure that certain standards and discipline are applied and that the quality of working files and reports is enhanced.

11.39 The Commission has issued various operational directives and policies that provide only general guidelines. They do not encompass all important aspects of the Commission's work, nor are they kept up to date. Therefore, the direction and guidance required by investigators is not readily available.

11.40 In most of the case files we examined, there were no pre-investigation or investigation plans, although these are recognized by the managers as being useful. Instructions to help investigators clarify complainants' allegations were also not available. This sometimes resulted in the wrong allegations being pursued or the wrong questions being addressed, leading to waste and inefficiency.

11.41 The Commission has not established any standards for the quantity and quality of documentation and evidence required for case investigations, organizing the case files, time recording, or supervisory challenges and reviews. Further, it has not fully explored the possibility of developing and using form letters and notes for use in seeking routine information and follow-up.

11.42 The Commission should ensure that operational directives and policies encompassing all important areas of its operations are prepared and kept up to date. The Commission should also implement standard methodology and require the use of its work tools in investigating complaints.

Commission's response: A system of manuals encompassing all policies and operational directives has been developed. Manuals were issued to staff in June 1985 and will be regularly updated. It is a requirement that Commission work tools and standard methodology be used in investigating complaints. Standard methodology and work tools are described in the system of manuals.

Quality Control

11.43 Regional directors are responsible for the quality of work done in the regions. Their participation and input are reasonable in the initial identification of the complaint and in the reporting phase; however, during the investigation, their monitoring and control is haphazard and inconsistent.

11.44 The Complaints and Compliance Branch at headquarters is responsible for quality control with respect to complaints. This consists of a review of all investigation reports prepared by investigators. This is done by a review committee composed of various CHRC specialists, and includes people involved in legal work, policy, and national investigation. The Committee studies the quality of work in terms of consistency and type of evidence collected, the quality of the analysis conducted and the basis of the recommendations to be submitted to the Commission members. This is an after-the-fact review, and the Commission has not clearly established its quality standards and communicated these to the investigators. Since the criteria used by the managers and investigators for conducting investigations vary, the quality of the work carried out is inconsistent. Moreover, owing to the lack of a clear division of responsibilities between the Director, Complaints and Compliance at headquarters (who ensures quality control), and the regional directors (who oversee investigations), quality control has given rise to misunderstandings among those involved. For example, investigations that have been completed for presentation to the Commission members by the regions are stopped at headquarters for further work or policy decisions. This has resulted in bottlenecks at headquarters, adding to delays and leading to friction and loss of morale.

11.45 The Human Rights Commission should clearly define the responsibilities of regional and headquarters staff for supervisory review and quality of work. It should also establish quality standards and communicate these to the investigators.

Commission's response: The responsibilities of regional and headquarters staff for supervisory review and quality of work were being defined at the time of the audit. These were completed and communicated to staff in June 1985. Quality standards are being developed and will be communicated to staff through training and included in the manual system.

Management Information

11.46 The Commission does not have enough reliable and accurate operational information to plan and control its activities properly. For example, timely and accurate information that managers need to analyse complaints, in terms of numbers, complexity, newness and time required to deal with them, was not readily available. This is one of the main reasons the Commission does not know the composition of its entire caseload and is unable to take corrective action.

11.47 Managers in the regions and at headquarters need information on the status of active cases, including key dates for completion of major steps and tentative deadlines by which reports have to be prepared. They also need information on the handling and disposition of similar cases. We did not find an adequate system in the regions or headquarters that provided this information. Furthermore, monthly reports prepared by the regional directors provide minimum information for operational control purposes. For example, these reports do not contain information on important operational outputs such as the number of pre-investigations and informal complaints dealt with by the Commission. The computerized management information system does not provide the required information and the data are also unreliable and inaccurate.

11.48 Starting on 1 January 1985, the Commission initiated a monthly reporting system that will update the status of each of the 682 cases that were open at 31 December 1984 and indicate the date on which investigation reports would be submitted to headquarters. When it is fully functional, this system should be useful for managerial control purposes.

11.49 Another of the Commission's important information requirements is the amount of time taken by the investigators on each case. At present, such records on individual files are either not maintained or, if they are maintained, the time recorded is inaccurate and unreliable. In over 50 per cent of the files audited, no time record had been maintained, and in some other files, the time had been estimated only at the completion of the investigation.

11.50 The Human Rights Commission should review existing management reports for relevance and usefulness, and it should continue to develop appropriate management information systems to aid managers.

Commission's response: Some management reports have already been revised and further changes will be made. Man agement information systems are being reviewed, revised and refined on an ongoing basis.

Need for Analysis of the Nature and Cause of Delays

11.51 Although the Commission recognizes that corrective actions are needed to reduce delays and now has the reduction of delays as an objective, it has not conducted an in-depth analysis of the cases to identify the nature and causes of delays. It does not therefore know the degree to which they are caused by internal factors within its control or by external factors where its influence is limited. Such an analysis would help the Commission to identify those delays that it can take steps to reduce.

11.52 To understand the nature of delays, we examined 81 cases where long delays in processing were observed. These represented about 12 per cent of the active cases of the Commission. Most of these had taken over 18 months to complete or were still active 18 months after the date of acceptance. The average elapsed time for these 81 cases was 27.3 months. Included in these were 25 special cases that were in abeyance pending a court or a tribunal decision. These had an average elapsed time of 38.3 months. We analysed the other 56 cases, most of which were still in process and had not gone through all the steps, and found that, on average, it took up to four months to assign them to an investigator, 19 months for investigation, 3 months for case analysis and report preparation, and 1.5 months for disclosure to complainants and respondents.

11.53 We further analysed the delays in the investigation phase and noted that the reasons for them included workload of investigators, change in investigators, failure of the respondent to supply information promptly, lack of follow-up by investigators and periodic unavailability of the complainant. We also noted delays in the Systemic Discrimination Unit at headquarters, the Complaints and Compliance Branch and in the Case Review Committee. The analysis we conducted was to enable us to identify the main causes of delays in investigations. These were discussed with Commission staff, who recognize that they need information to identify and implement corrective actions. They expect the new reporting systems to generate such data.

11.54 The Human Rights Commission should carry out an ongoing analysis of its cases to identify the nature and underlying causes of delays in investigations.

Commission's response: Regular reviews are part of complaints processing. Changes made to the automated tracking system in April 1985 now provide information on the scheduling and progress of complaints. This information will receive even greater attention from managers in the future.