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1998 September Report of the Auditor General of Canada

Main Points

10.2 Between 1988 and 1997, the Commission received about 7,450 signed complaints, excluding pay equity complaints. It made final decisions on about 6,550 of the 7,450 signed complaints. The Commission dismissed or did not proceed with about two thirds of these complaints. About six percent of complaints were forwarded to the Tribunal for inquiry.

10.3 Although major efforts have been made to improve the handling of complaints, it still takes a long time for a complaint to be reviewed - an average of about two years for the Commission and about a year for the Tribunal. In 1997 almost one half of the Commission's 900 open cases were still being investigated one year after the signing of the complaint.

10.4 The Commission tries to settle complaints through conciliation and the Tribunal also tries to mediate complaints after the Commission forwards them for inquiry. Because the Commission has its own settlement objectives, it is not a neutral conciliator. Since 1996 about 18 percent of complaints have been settled through early resolution or conciliation. The Commission took an average of about 45 months to reach a final decision when complaints were investigated and then sent to conciliation.

10.5 The Commission and the Tribunal are operating in a complex environment that poses major risks. The grounds for making a complaint are increasing and concepts of discrimination are becoming more complex. The environment also is more litigious and contentious. The Commission's total funding has been reduced from a high of $16.15 million in 1992-93 to $14.8 million in 1998-99. The number of investigators also has been reduced from a high of 37 to 25. Further, the Commission is experiencing a high turnover of investigative staff, necessitating the reassignment of cases to other investigators. We also are concerned that the Commission is not consistently adhering to some of its key investigative standards.

10.6 We note that the Minister of Justice has stated that a broad review of the Canadian Human Rights Act will be undertaken. The Commission has welcomed this proposal. The December 1997 Third Report of the Senate Standing Committee on Legal and Constitutional Affairs also called for a comprehensive assessment.

10.7 We agree that a fundamental review by Parliament is needed and recommend that the government identify and present to Parliament an integrated set of specific measures to increase the effectiveness of addressing human rights complaints. Possible measures are summarized in the concluding section of this chapter.

Introduction

Role of the Canadian Human Rights Commission

10.9 The Commission investigates complaints of discrimination. Complaints may relate to employment, or to the provision of goods, services, facilities and accommodation that are customarily available to the general public. The Commission also has a statutory responsibility to foster public understanding and recognition of the principles of the Act.

10.10 Complaints of discrimination may be made based on race, national and ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. Complaints of discrimination based on sex include complaints about pay inequities between men and women.

10.11 In October 1996, amendments to the Employment Equity Act came into force. The purpose of the Act "is to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability." The Commission is responsible for the enforcement of the obligations imposed on employers by the Act.

10.12 The Commission currently consists of the Chief Commissioner and six part-time members appointed by the Governor in Council. It has about 180 full-time equivalent employees. During 1997-98, the Commission spent about $15 million and plans to spend about $14.8 million in 1998-99.

Role of the Human Rights Tribunal Panel

10.14 During 1997-98, the Tribunal consisted of the President and about 40 Governor-in-Council-appointed active panel members. It has a staff of 14 public servants. The Tribunal's 1997-98 budget was about $1.9 million and is expected to be about $2.2 million in 1998-99.

Focus of the Audit

• the existing accountability and independence frameworks ensure independence from government while still retaining appropriate accountability;
• the process for handling human rights complaints is accessible, equitable and well managed within available resources; and
• the Commission is in a position to implement its new employment equity audit mandate under the Employment Equity Act in a satisfactory manner.

10.17 We reviewed the Tribunal's financial and management controls and its mediation process; however, we did not review Tribunal hearing procedures.

10.18 We interviewed a wide cross section of stakeholders. The Commission and the Tribunal assisted by identifying the stakeholders they believed we should interview to obtain reliable information on the mandate and operations of both entities. Further details on our audit objective, scope and approach are found at the end of the chapter in the section About the Audit.

Observations

Canadian Human Rights Commission

The grounds for complaints about discrimination are expanding

10.20 Requests for revisions come from members of Parliament, the Commission itself and "equality seeking groups" representing, for example, women, same sex couples, individuals with disabilities, low income individuals and different racial and ethnic communities. Exhibit 10.1 summarizes the type of requests that have been made.

10.21 The Commission also advocates changes to the Act. For example, the Commission has decided it can address larger social issues, such as poverty, that may go beyond its immediate jurisdiction. The Commission told us ``this is consistent with the overall purpose of the Act which is to guarantee equality of opportunity." Its 1997 Annual Report to Parliament recommended that social condition be included as a prohibited ground of discrimination.

10.22 Since the Act was passed, four amendments have been made to the prohibited grounds of discrimination. Two grounds - family status and sexual orientation - were added, and the ground of disability was expanded. A fourth amendment, clarifying an organization's duty to accommodate individuals with special needs unless it causes undue hardship for the organization, was included in Bill S-5 promulgated in May 1998. The amendment follows a Supreme Court ruling as well as a series of rulings by other courts. The Bill also requires the Commission to accept and investigate complaints of retaliation against a complainant and it provides for the filing of a complaint based on multiple grounds.

10.23 The Federal Court is currently reviewing the constitutionality of the provision in the Canadian Human Rights Act that permits mandatory retirement where the retirement age is fixed by law or regulation.

Decisions are made independently of government

10.25 Organizational independence. Government departments and the Treasury Board often are the subject of investigations and employment equity audits by the Commission and are respondents in hearings before the Tribunal. At the same time, the Treasury Board approves the budget of both agencies and both are subject to all Board regulations and policies. The Minister of Justice is responsible for the Canadian Human Rights Act and for the Commission and the Tribunal. As Attorney General of Canada, the Minister often represents departments in the negotiation of settlements of cases with the Commission and before the Tribunal and the courts.

10.26 In certain instances, the perception of the independence of the Commission and the Tribunal from the government is strained. These instances involve major cases where the government, as the employer, is the respondent before the Tribunal and where additional major funding is required for lengthy hearings. In such instances, the Treasury Board is both the approver of requests for such funds and the respondent to the case being heard.

10.27 We did not find evidence that the government is using funding controls to hamper the Commission or the Tribunal in the fulfilment of their responsibilities. In practice, we found that additional funds usually have been provided to the Commission and the Tribunal when needed. However, there is an absence of legislative safeguards.

10.28 There are also concerns about the independence of the Tribunal from the Commission. Recently, the Federal Court found that the Tribunal was not independent of the Commission. Certain provisions of Bill S-5 are intended to address this issue.

10.29 Independence of appointees. Appointees to the Commission and Tribunal should be and be seen to be independent and qualified. The Governor in Council appoints full- and part-time members to the Commission and the Tribunal. Bill S-5 addresses some of the issues relating to the independence of appointees to the Tribunal; for example, it establishes qualifications for appointment to the Tribunal and extends the terms of the Chairperson for up to seven years and of Tribunal members for up to five years.

10.30 Bill S-5 also specifies procedures for removal of members of the Tribunal. The procedures are similar to those proposed for other administrative tribunals in Bill C-44, which received first reading in June 1998.

10.31 Other safeguards for Commission and Tribunal appointments that would help ensure the personal independence and quality of appointees include:

• increasing transparency in the appointment process by having stated criteria for qualifications and by widely advertising openings for both full- and part-time appointments;
• having a panel of experts and eminent citizens or a legislative committee interview and recommend candidates for appointment by the Governor in Council; and
• setting the salary and benefits of appointees by statute - perhaps by fixing them in proportion to the statutory remuneration of federally appointed judges.

10.33 The Ethics Counsellor informed us that he would be writing to all part-time Governor in Council appointees to ensure that they fully understand that they are subject to the principles of the Code.

10.34 Part II of the Code, which requires disclosure of assets and outside activities to the Ethics Counsellor, does not apply to part-time Governor in Council appointees. The Tribunal, however, requires its part-time appointees to make such a disclosure to its President or Registrar. As well, it requires compliance with its own principles for maintaining independence, impartiality, confidentiality and proper conduct.

10.35 Independence of reporting. The ability to report to Parliament independently of government control is essential to the effectiveness of the Commission and the Tribunal. Bill S-5 provides for the Commission and the Tribunal to submit their annual reports directly to Parliament rather than through the Minister of Justice.

Major delays still exist in processing human rights complaints

10.37 Between 1988 and 1997, the average annual number of signed complaints was about 745, excluding about 175 pay equity complaints filed during this period. The Commission consolidated similar pay equity complaints and thus the total number of pay equity complaints was larger.

10.38 To be effective, the Commission must investigate complaints quickly, impartially and expertly. In 1985 we reported that the major operational challenge faced by the Commission was to reduce the long delays in its investigation of complaints and to reduce the backlog of complaints to a reasonable level.

10.39 The Commission has established new standards for the resolution of an "average" complaint. In 1985 the Commission's general standard was six months to process a case. Its current standard, reconfirmed by the Commission in 1990, is nine months from the date a complaint is signed to its presentation to Commissioners for decision. If Commissioners send a complaint to conciliation, then four to six months are added to this standard.

10.40 Between January 1988 and November 1997, Commissioners reached final decisions on about 6,550 cases, excluding pay equity cases. On average, the Commission took about 27 months to reach these decisions, including 25 months to dismiss cases and 23 months to decide that there would be no further proceedings. Our calculations exclude the time between the deferral of a decision, where a "lead case" was before the Tribunal or the courts or was being investigated, and the reinitiation of consideration of such cases.

10.41 The Commission implemented a new seven-phase system in February 1994 to expedite investigations. To take into account that a new system may not initially operate at full efficiency, we measured the time the Commission has taken to reach final decisions since January 1996. On average, the Commission took about 23 months to reach about 1,170 final decisions. It took three or more years to reach a decision on about 16 percent of cases.

10.42 We also assessed the extent to which the Commission met the time standards it established in 1994 for phases of the complaint management process. We measured the time taken to complete key steps for cases filed between January 1996 and November 1997. Exhibit 10.2 shows that the average time to complete key steps exceeded the Commission's standards. For example, the Commission's time standard to complete an initial investigation was about 5.5 months after a complaint was signed. In practice, the Commission took an average of about 10 months to complete initial investigations. In about 26 percent of cases, it took over one year.

10.43 Most of the delay under the control of the Commission occurs in the disclosure of the investigation report to the parties. The Commission's time standard for this step is about a month. However, between January 1996 and November 1997, it took an average of about 3.7 months to complete this step; in about 23 percent of the cases, it took more than 5 months.

10.44 Significant delays also result from the Commission not having the legal authority to enforce deadlines. For example, the Commission requests that respondents reply to a complaint within 40 days of notification. The average reply, however, takes 60 days, with about 15 percent of respondents taking 90 days or more to reply. In such instances, the Commission's only recourse is to send additional reminders to provide the information.

10.45 If a case is sent to Tribunal or appealed to the Federal Court, it could take several years from the day a complaint is signed with the Commission for a case to be resolved. Some stakeholders suggested that the parties be allowed to take their cases directly to the Tribunal or the Federal Court for a hearing on the merits of their case. This could decrease the time and cost of resolving complaints, particularly when complainants and respondents have significant resources and expertise.

10.46 The role of the Tribunal would need to be reconsidered if complaints were brought directly to the Court. To protect the public interest, the Commission could have a statutory right to be an intervener in all cases.

10.47 Pay equity complaints. Reliable data on the time it takes to process pay equity complaints are available for complaints filed since January 1993. Commissioners have reached decisions on 13 of the 36 pay equity complaints filed since this date, taking an average of about 1.5 years. About one half of the complaints have either been dismissed or not pursued by the Commission. On average, the remaining 23 complaints have been on file with the Commission for over three years.

10.48 Large pay equity complaints may take years to resolve because the proof required to sustain an allegation is complex and court challenges are frequent.

The Commission is encountering problems eliminating its backlog

10.50 In 1989-90, the Commission received a permanent annual funding increase of about $411,000 for nine full-time additional investigators to eliminate its backlog over a five-year period. In addition, to reduce its backlog, the Commission spent almost $1 million between 1992-93 and 1997-98 to hire contractors to conduct investigations. This amount included additional one-time funding of $400,000 from the Treasury Board in 1992-93.

10.51 Between 1991 and 1995, the backlog ranged from about 62 to 72 percent of the Commission's open cases. There are differences of opinion on why the backlog was not reduced as planned. The Commission's December 1991 submission to the Treasury Board included a request for an additional $1.82 million over four years to reduce its backlog. The submission noted that the initial funding has been based on an underestimate of the number of new signed complaints that it would receive.

10.52 The Treasury Board declined to provide further resources beyond the 1992-93 one-time spending authority of $400,000, because resources it had previously provided to the Commission for investigations were being used to encourage complaint volume and for other discretionary activities. The Commission was informed that further resources would not be provided until it demonstrated that it had assigned priority to investigations and conciliations by reallocating existing resources to restore its capacity in these areas.

10.53 The Commission is considering requesting additional one-time funding of $1 million to reduce its backlog of cases over a two-year period.

Most complaints are not proceeded with or are dismissed

10.55 A dismissal decision results when Commissioners decide there is a lack of evidence to support the allegation. Most of the time, the Commission does not proceed with a complaint because the complaint has been resolved by the parties, the complainant wants to discontinue action or has not responded to requests for information, or the respondent is no longer available. However, the Commission did not record explanations for over one third of the cases where a decision was made not to proceed.

The investigation environment is complex and poses major risks

10.57 The roles of the Commission to promote and advocate human rights and to impartially investigate complaints also add to the complexity of the environment. This duality of roles requires that the Commission balance its advocacy role with the need to investigate or conciliate complaints in a manner that is timely and that maintains the credibility of its impartiality.

10.58 Stakeholders have many concerns about various aspects of the Commission's operations. These include:

• a potential conflict of interest among the different roles of the Commission - advocating social policies, helping to draft complaints, investigating complaints, conciliating complaints, representing the public interest before the Tribunal and the courts, and sometimes collaborating with complainants' counsel to expand the interpretation of the Canadian Human Rights Act ;
• the Commission's investigations being too cursory and cases being dismissed without full investigation;
• the delays in processing cases undermining the fairness of the process;
• the Commissioners, without giving clear reasons, dismissing complaints or not pursuing them when conciliation fails; and
• the Commissioners not providing sufficient information on the reasons for their decisions.

10.60 Since downsizing its regional offices and centralizing investigations, the Commission has experienced a high turnover of its investigation staff. Because staff from the regions did not accept transfers to the National Capital Region, the Commission had to hire 14 new investigators. Since 1995, 15 investigators have left the unit that handles most complaints, six within a year of being hired. As a result, a series of investigators often work on the same case. The Commission told us it takes about a year for an investigator to become fully functional. Currently, 14 of the 22 investigators in this unit have less than a year's experience.

10.61 The Commission rarely uses its authority to initiate complaints because it has been challenged in the courts and lengthy litigation has ensued. One of the major grounds for challenges is that there is an "apprehension of bias" because the Chief Commissioner approves the initiation of the complaint and then presides over a meeting of Commissioners to decide whether the complaint is valid. As a result, the Commission told us that "in situations where the Commission is interested in pursuing an issue, it has found that there are usually third parties who are willing to file a complaint."

10.62 The Commission's work is subject to judicial review by the Federal Court. To date, the Court has generally upheld the Commission's decisions, although it has sometimes expressed significant concerns about how the Commission has managed complaints. Recent decisions of the Federal Court that found a lack of sufficient independence of the Tribunal from the Commission and errors in law relating to pay equity by the Commission may result in more challenges to its jurisdiction and impartiality.

Clear investigative standards are needed to manage the risks

10.64 The Canadian Human Rights Act provided for the passage of regulations establishing procedures to be followed by investigators. However, the Commission has chosen to establish administrative standards rather than regulations.

10.65 The Commission's standards are contained in its Compliance Manual and Training Manual. The Compliance Manual states that the "manual includes procedures, directives and technical descriptions intended to ensure that compliance activities are performed in a fair, consistent and timely manner by Commission staff."

10.66 We requested that the Commission provide us with its most up-to-date compliance and training manuals and keep us informed of any changes to them. The Commission provided us with its 1994 Compliance Manual and 1995 Training Manual. Based on this information, we concluded that the Commission's investigation standards were generally satisfactory. However, we could not conclude that numerous directives on investigation procedures issued since January 1994 had been integrated into the manuals, or codified in any way. The Commission also could not confirm that it had provided us with the total number of directives issued on these matters.

10.67 Subsequent to finalization of our audit report, the Commission informed us that it had almost completed revising its Compliance Manual. We plan to review the investigation standards in the revised Manual in our follow-up audit.

10.68 We assessed the Commission's investigation procedures to determine whether the Commission was adhering to its own standards. This involved reviewing the Commission's investigation files that it identified as representative of its standard of good investigations. We selected a random sample of 50 complaint files for further review.

10.69 The relevant information for the investigation of a complaint is supposed to be contained in four key documents: the Complaint Analysis and Assignment Form, the Investigation Plan, the Complaint Analysis Report and the Investigation Report.

10.70 Based on their own and their supervisor's judgment, investigators depart from Commission standards. We found that the Complaint Analysis Report and the Investigation Report are completed as required. However, the documents that precede these reports - the Complaint Analysis and Assignment Form and the Investigation Plan - often are not completed. These two documents are supposed to contain information identifying the type of discrimination involved, the objectives of the investigation, the type of evidence required to substantiate whether the form of discrimination has occurred, and the sources of evidence.

10.71 The Commission told us that the information required by these documents could be found in the letter of notification to the respondent and in the Investigation Report. However, we could not conclude that the key information could be found in these documents.

10.72 We also found that the results of key discussions between investigators and supervisors as well as of telephone discussions and interviews with the parties often are not recorded in the files. As well, the chronology of the processing of the complaint submitted to Commissioners with investigation reports does not have sufficient information to allow them to understand the reasons for delays or their impact on the investigation process.

10.73 The Commission told us that our findings focussed on procedural matters rather than the quality of investigations. We explained, however, that to comment on the quality of investigations would require that we verify the accuracy of the investigations conducted by the Commission. This would be costly, time-consuming and impractical. Thus, we focussed on the Commission's adherence to its key investigative standards that it established to ensure that quality is built into investigations from the start.

10.74 We are concerned that the Commission is not consistently adhering to some of its key investigation standards that are designed to ensure the quality of investigations . Since it is investigating allegations of violations of fundamental rights, the Commission needs clear standards that should be followed for the conduct of investigations.

10.75 The Commission needs to have clear and required investigation standards that would allow the Commission and others to ensure accountability and transparency in the investigation and decision process. In addition, clear standards are needed for the disclosure of information to complainants and respondents during investigations and on decisions. Such standards also would help increase the confidence of stakeholders in the Commission. Further, they would help the Commission manage risks arising from a complex and litigious environment where investigations may last on average two years and where there is a high turnover in staff, requiring the Commission to rely on inexperienced investigators.

10.76 We also believe it is important that the Commission conduct periodic audits of its investigations. The Commission's plans to conduct such audits in 1995-96 were not implemented.

The conciliation process needs to be improved

10.78 We estimate that since 1996 about 18 percent of cases have been settled through some form of conciliation - 11 percent through early resolution before or during investigation, with or without the assistance of the Commission. The 7 percent sent to conciliation after investigation were, on average, before the Commission for about 45 months before a final decision was made. The conciliation phase alone took an average of about 11 months to complete. About 60 percent of the cases sent to conciliation after investigation were settled.

10.79 Commission conciliators are usually drawn from the ranks of investigators. On average, conciliators receive about six days of conciliation-related training over several years.

10.80 The Commission wears several hats in the conciliation process: it facilitates a settlement between the parties, it provides information on precedents, it protects the public interest and it approves the settlement.

10.81 The Commission is not a neutral third party in the conciliation process. Conciliators formulate objectives for the settlement based on the investigation file and their knowledge of Commission policies and Tribunal precedents. They then prepare a conciliation plan for approval by their supervisors, outlining the maximum conciliation objectives. The plan is prepared and approved without talking to the parties and conciliators do not necessarily disclose to the parties that they have their own conciliation objectives.

10.82 Complainants are generally contacted by telephone to find out what settlement would be acceptable to them. Subsequently, the settlement request is presented to respondents. The actual person against whom the allegation of discrimination has been made is rarely involved in the conciliation process. The "respondent" contacted is usually a professional representative of the organization employing the person against whom the complaint was made. Complainants usually represent themselves.

10.83 We believe that the Canadian Human Rights Commission's conciliation efforts would be improved by using mediation upon receipt of a complaint. We note that the Ontario Human Rights Commission has reported that it recently initiated a voluntary mediation program to resolve cases in the early stages of complaint processing. The Ontario Commission acts as a neutral third party with a strict separation between its mediation and investigation functions. However, it reserves the right to reject settlements that it does not believe are in the public interest. Its mediators receive extensive training before conducting mediations. During the first year of operation of the program, the Ontario Commission reported that 60 percent of the parties have opted for mediation, resulting in an 81 percent settlement rate within 91 days of the filing of a complaint.

10.84 The establishment by the Commission of a similar mediation program could result in complaints being resolved sooner and with less cost. As explained earlier, allowing parties to take their cases directly to the Tribunal or Federal Court could also have the same result, particularly when the parties have significant resources and expertise. Together these measures could allow the Commission to refocus its investigative resources.

Employment equity compliance audit plans are satisfactory

10.86 The Act empowers the Commission to conduct compliance audits. It also requires that the Commission, wherever possible, resolve cases of non-compliance "through persuasion and the negotiation of written undertakings." However, as a last resort, the Commission may issue a "direction" requiring the employer to take specified actions to remedy non-compliance.

10.87 While the amendments to the Employment Equity Act came into force in October 1996, employers were given one year to comply with the Act prior to audits being conducted. In January 1997, the Commission established an Employment Equity Branch to conduct compliance audits. In 1996-97, the Commission spent about $1.2 million to prepare for compliance auditing and conducted voluntary audits to test audit procedures. The Commission's plans call for the expenditure of about $6 million on employment equity activities from 1997-98 to 1999-2000.

10.88 The Commission plans to audit all 410 entities over a five-year cycle starting in October 1997. It expects that audits will take between 30 and 60 days, depending on the size of the entity's work force. It also expects that the time needed to conduct the first audits will be reduced because most employers will have only begun to respond to the requirements of the Employment Equity Act.

Employment equity audits are complex

10.90 Employers are required to determine whether under-representation exists by comparing the representation of designated groups in their organizations against their ``work force availability". The Commission uses the term "work force availability" to describe the number of persons in a designated group in the general or regional population that have the appropriate qualifications. Employers also are required to make several comparisons for each designated group where under-representation has been found. Exhibit 10.7 summarizes the Commission's employment equity audit criteria, including the comparisons that employers must make.

10.91 Employers will have to use reliable estimates of representation of designated groups in the appropriate population, and employees will have to co-operate by voluntarily self-identifying as a member of a designated group. Without this information, inaccurate employment equity hiring targets and practices may result. Also, without a sound analysis of employment policies, certain employment practices may be initiated without a good understanding of the source of the problem of under-representation.

Performance reporting on complaints management needs to be improved

10.93 The Commission currently provides to Parliament an Annual Report and an annual fall departmental Performance Report.

10.94 The information the Commission provides on its management of complaints of discrimination could be significantly improved. The Commission provides only summary information on the number of complaints filed and their disposition. It could improve its performance reporting by providing information on the delivery of services against defined standards.

10.95 The Commission also could establish objectives and numerical targets for its operations and for improvements. For example, it could set goals for the number of new complaints that should be resolved in a fiscal year, establish deadlines for eliminating its backlog, and set targets for the number of complaints that could be settled by early resolution within a specific period of time. This information could be reported for the previous and current fiscal years and for a five-year average. Similar goals and performance measures could be developed for pay equity complaints and promotion activities.

10.96 Useful information on employment equity is contained in the Commission's 1997 Annual Report. Charts are provided comparing the representation of the four designated groups by departments and agencies of government and the private sector. Crown corporations are included with private sector companies. The report also describes the most common problems encountered by organizations in complying with the Employment Equity Act . However, information on the cost and progress of audits could be added.

Cost effectiveness of new information technology needs to be better assessed

10.98 We focussed on the Commission's complaints management system because it is one of the main management instruments for the Commission's key functions - the investigation and conciliation of human rights complaints. Since 1992, there have been two major development projects costing about $900,000. A third iteration has just begun and the Commission plans to spend up to $300,000 over the next two years to replace the system.

10.99 Despite these major investments, management believes that much of the information derived from the system is unreliable. Consequently, it supplements the information by other measures intended to validate the information in the system or to replace it. However, we verified the accuracy of the information in the system and used it to assess the key aspects of the timeliness of complaint processing. The Commission's system was not designed to readily produce this information.

10.100 The Commission has recently completed a user need analysis and has prepared data and criteria to be used to evaluate alternatives for its new system. We are concerned that the Commission has not clearly defined key objectives and operational benchmarks for the new system that would allow it to assess gains in efficiency and effectiveness from this investment. The gains could be measured in terms of productivity improvements, reduction in task time, and reduction in delays prevented by accurate and timely reporting on case management.

Clear authority and improved management controls for contribution agreements are needed

10.102 CIDA funds the projects under a document called an "Agreement" signed by CIDA and the Commission. To date, the total value of the agreements is about $2.6 million over a four-year period. The Commission spends about $60,000 annually administering the agreements.

10.103 After obtaining funds from CIDA, the Commission enters into contribution agreements with non-governmental organizations and provincial human rights commissions to carry out the projects outlined in the Agreements between CIDA and the Commission. Agreements have been signed to support human rights commissions in two countries.

10.104 We are concerned about a lack of clear authority for the Commission to enter into these types of agreements with CIDA. We also could not identify a clear authority for the Commission to sign contribution agreements with third parties. Further, the Treasury Board must approve the terms and conditions of contribution agreements unless the Board has delegated such authority. We found that the Commission did not obtain the needed approval, nor had the Board delegated the authority.

10.105 The Commission's financial controls for its contribution agreements are generally satisfactory; however, its management controls need improvement. The Commission cannot readily assure CIDA that it is managing and co-ordinating the projects, ensuring effective control of project resources and ensuring that procurement of materiel is in accordance with established Canadian government procedures.

10.106 The Commission agrees that the management of its international projects has presented difficulties. It "now recognizes that it must take a more hands-on approach," and has recently taken steps to improve its management of the contribution agreements. These measures include making on-site visits, requiring status reports, and documenting decisions.

Human Rights Tribunal Panel

Financial controls are generally satisfactory

The Tribunal process is lengthy

10.109 The steps in the processing of a complaint at the Tribunal include a pre-hearing meeting, mediation, if all parties agree, and the hearing of the complaint if mediation fails. A one- or three-member panel can hear a case. Until recently, when a one-member Tribunal's decision was appealed, a three-member Review Tribunal was set up to review the decision. Since 1979, there have been 47 review tribunals. The provision for review tribunals was removed by Bill S-5. Parties may challenge a decision by requesting the Federal Court to conduct a judicial review. Sometimes the Commission asks for judicial reviews of decisions of tribunals.

10.110 Since 1996, the Tribunal has taken an average of about a year to complete hearings and render decisions on cases that are not settled through mediation. Decisions are rendered on average about five months from the last day of the hearing. Pay equity cases may take more than 100 days of hearing and cost more than $700,000. This cost does not include the costs incurred by the parties.

10.111 Since January 1996, 19 Federal Court decisions on Tribunal findings have been reported, with 11 decisions holding against the Tribunal. The most common finding was that Tribunals made errors in law.

10.112 Overall, stakeholders believe the Tribunal's approach to conducting hearings is cumbersome. They expressed concerns about the length of hearings, in part due to the inefficient hearing procedures and the need for part-time members to juggle their schedules.

10.113 As indicated, legislation recently approved by Parliament resolved some of these concerns. Bill S-5 specifies the qualifications for new panel members, and lengthens the terms of the Chairperson and Vice-Chairperson from five to up to seven years. It also may reduce scheduling problems by providing for the appointment of full-time members.

The Tribunal's approach to mediation is generally satisfactory

10.115 However, the Tribunal does not have the statutory authority to mediate complaints. It also does not have formal standards and policies governing mediation and the mediators rely on their own experience.

Performance reporting needs to be improved

10.117 The Tribunal's Performance Report states that it will achieve its objective by demonstrating, for example:

• timeliness of the hearing and decision process;
• increased use of Alternative Dispute Resolution processes; and
• well-reasoned decisions, consistent with the evidence and the law.

10.119 We noted that the report does not contain information on the elapsed time between hearing a case and rendering a decision. We found that it takes on average about a year for tribunals to complete hearings and render a decision on complaints referred to it by the Commission. However, more complex cases can take much longer.

Conclusion and Recommendation

10.121 The Commission and the Tribunal are operating in an increasingly litigious and complex environment that poses major risks. In general, while stakeholders appreciate that the Commission and the Tribunal are dealing with difficult matters, they have major concerns about the efficacy of the process.

10.122 The Minister of Justice has stated that a broad review of the Canadian Human Rights Act will be undertaken. The Commission has stated that this should be done sooner rather than later. The December 1997 Third Report of the Senate Standing Committee on Legal and Constitutional Affairs also called for a comprehensive assessment. We agree that a fundamental review by Parliament is needed. The various issues we have identified are for the most part interrelated and cannot be easily addressed individually.

10.123 The government should identify and present to Parliament an integrated set of specific measures to improve the effectiveness of addressing human rights complaints. Such measures could:

• provide for periodic reviews by Parliament of the relevance and impact of the grounds of discrimination;
• broaden the choice of ways that complainants and respondents could use to resolve human rights complaints, possibly permitting complainants to take cases directly to the Tribunal or the Federal Court;
• clearly separate the Commission's roles as promoter of human rights, investigator and conciliator of complaints, representative of the public interest and advocate for an expanded interpretation of the Canadian Human Rights Act ;
• ensure that the Commission and the Tribunal are independent and accountable;
• provide for greater transparency in appointments to the Commission and Tribunal;
• establish statutory deadlines for the receipt and disclosure of information to and by the Commission;
• ensure that specific standards are established and followed that safeguard the reliability, impartiality and transparency of the investigation, conciliation and decision-making processes;
• require clear, complete and timely disclosure of reasons for decisions;
• require parties to consider voluntary mediation by a neutral independent mediator, early in the complaint management process;
• ensure that there is legislative authority for the mediation policies and procedures that may be used by the Commission and Tribunal;
• require greater disclosure of information on performance against defined service standards; and
• ensure that there are legislative authority and resources to undertake international projects.

With respect to the complaints process, the Commission recognizes that the time taken to deal with complaints is unsatisfactory. This is a problem faced by all human rights commissions, and one that for the Canadian Human Rights Commission has been exacerbated by past budgetary reductions and difficulties arising from the current law. We anticipate that the general review of the Canadian Human Rights Act announced by the Minister of Justice will provide the opportunity to consider alternatives to the current approach. In the meantime, we will continue to seek ways to speed up the process, including making greater use of mediation. It is also the Commission's intention to seek one-time funding from the Treasury Board to reduce the current backlog of complaints.

In terms of the quality of investigations, we continue to believe that complaints are properly investigated and that the Commissioners are provided with the information they require to make informed decisions. Some of the standards noted in the report were put in place at a time when the Commission's workload was less demanding, and their contribution to the investigation process may need to be reassessed.

As the report points out, providing assistance to human rights institutions in other countries is a new area of activity, which has increased significantly over the past few years. The Commission intends to seek confirmation of its mandate in this area, and to ensure that the resources and systems required to meet the demand effectively are in place.

As a final point, we should note that the audit does not examine the Commission's promotion activities. These are an important element in the Commission's statutory mandate.

Human Rights Tribunal Panel's response: We are in general agreement with the conclusions and recommendations contained therein that pertain to the Tribunal Panel.

About the Audit

Objective

• the activities of the Canadian Human Rights Commission and the Human Rights Tribunal Panel are consistent with their mandates under the Canadian Human Rights Act and Employment Equity Act ;
• appropriate accountability and independence frameworks are in place to ensure independence from government with appropriate complementary accountability, including whether results are usefully measured and reported to management and Parliament;
• the process for handling human rights complaints is accessible, equitable and well managed within available resources;
• the Commission is in a position to implement its new employment equity audit mandate under the Employment Equity Act in a satisfactory manner;
• information technology planning is adequate; and
• financial risks are well managed.

Scope and Approach

We reviewed the information provided by the Commission and the Tribunal to Parliament in their Estimates, annual reports and performance reports. We also reviewed decisions of the Federal Court and the Supreme Court on the Commission and the Tribunal. In addition, we examined relevant studies conducted by the Commission and the Tribunal.

We verified and used the data in the Commission's complaint management system to describe the nature and disposition of complaints received by the Commission and the timeliness of dealing with complaints. Manuals and policy documents of the Commission and the Tribunal were reviewed and a stratified random sample of 50 investigation complaint files and a random sample of 20 conciliation files were examined.

We examined the Commission's audit plans for implementing its new employment equity mandate. We compared the Commission information technology planning practices with those recommended by the Treasury Board and those used by comparable agencies.

We examined financial and management controls relating to pay and benefits, contracts and contribution agreements.

Criteria

Audit Team

Greg Boyd
John Cathcart
Allison Fader
Camille Gilbert
Sue Morgan
Janice Murray

For information, please contact Alan Gilmore.