Tag: CHRC

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CHRC HRTO Human rights

Black human rights matter

Fighting discrimination in court is long and expensive. So it’s good we have the Canadian Human Rights Commission. Or is it…? The Canadian Human Rights Commission is Canada’s national human rights institution. Or, at least that’s what it was supposed to be… 

The Canadian Human Rights Commission was established by Canada’s Parliament in 1977 with a mandate to promote and protect human rights. The Canadian Human Rights Tribunal was created in 1998. The Commission investigates and screens complaints, and decides whether to send them to the Tribunal for a hearing. The Tribunal hears complaints referred to it by the Commission, and decides whether discrimination has occurred.

The Commission was supposed to be the place where people can seek justice if they feel they’ve been discriminated against based on one of the categories covered by the Canadian Human Rights Act such as disability, age or race. However, in September 2023, the Canadian Senate released a report titled Anti-Black Racism, Sexism and Discrimination in the Canadian Human Rights Commission. The report cited allegations of anti-Black racism raising concerns about the Commission’s treatment of its own employees, as well as its decision-making processes when dealing with complaints. The report said witnesses described a toxic culture at the Commission and provided specific evidence of systemic discrimination.

The issues at the Commission is one reason some Black groups have called for the federal government to adopt the direct-to-tribunal human rights complaint model like in Ontario, British Columbia and Nova Scotia. However, the Tribunal model has its own issues. In Ontario, one of the main issues is a backlog of complaints.

Tribunal Watch Ontario’s May 2024 report, The Human Rights Tribunal of Ontario: A Continuing Crisis, says that, “according to Tribunals Ontario’s most recent Annual Report, the HRTO backlog grew by another 500 applications over the 12-month period covered by the report, despite the fact that it received the lowest number of new applications since 2015/16. The HRTO’s unresolved caseload rose to 9,527, amounting to a three-year backlog. Equally alarming is the way the HRTO is now dealing with its backlog. Analysis of the Open Data Inventory on the Tribunals Ontario website reveals that an unprecedented 96% of all final HRTO decisions in 2023/24 were “jurisdictional or procedural” dismissals of applications, without the applicant having an opportunity to make oral submissions or attempt mediation. Most of these dismissed applications had been stuck in the HRTO backlog for years. Almost 80% of “jurisdictional or procedural” dismissals are based on a finding that the applicant abandoned the application, but a review of 2024 dismissals based on abandonment reveals the overwhelming majority are applications that were filed by unrepresented applicants three or more years previously. In many cases, it appears that the application was dismissed after the applicant failed to meet a newly- imposed filing deadline that seemed to follow years of HRTO inactivity on the file. What this record indicates is that, if the tribunal fails, over multiple years, to effectively move applications towards resolution, it can count on a significant number of applicants giving up, or being unable to continue to pursue their claim, especially when the vast majority are not represented by a lawyer.”

The preamble to Ontario’s Human Rights Code declares that “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”. Ontario’s Human Rights Tribunal is now conducting itself in a manner that is contrary to the public policy enshrined in the Code, by allowing delays and backlogs to undercut access to enforcement of the right to live without discrimination.

The Tribunal’s issues disproportionately impact Black Ontarians who face disproportionate levels of poverty and thus need access to justice that doesn’t always require hiring a lawyer.

But delays caused by an under-resourced Tribunal isn’t the only issue. Another issue is the Tribunal requiring Black people who file complaints, called “applicants”, to produce proof of explicit racism, despite the Tribunal acknowledging racial discrimination is often subtle. 

For example, in the 2007 case of Nassiah v. Peel (Regional Municipality) Services Board, the Tribunal ruled in favor of Jacqueline Nassiah, a Black woman, who filed a complaint against a Peel Regional Police Service officer for the way he treated her during his investigation into an allegation that she had stolen a bra from a Sears store. The Tribunal adjudicator said she based her decision partly on the fact the officer asked whether Ms. Nassiah spoke English “in part because she is Black”, called her a “fucking foreigner” during the investigation and threatened to take her to jail if she did not produce the bra. The discrimination Nassiah faced was unusually explicit.

In contrast, in the 2008 case of Sinclair v. London (City), the Tribunal ruled against Vincent Sinclair, a Black man, who filed a complaint after a dispute at London, Ont. City Hall which led to someone calling a security guard who escorted Sinclair out of the building and called the police on him. At least two City Hall employees said Sinclair “raised his voice” and “pounded his fist on the counter.” In his ruling, the Tribunal adjudicator said, “In this case, the question is whether, on a balance of probabilities, the complainant [Sinclair] and [the Ontario Human Rights] Commission have proven that the evidence supports a finding that race was a factor in the involvement of security. I find that this has not been proven…On balance, the evidence supports the non-discriminatory explanation that the City has suggested, that the call resulted only from Mr. Sinclair’s behaviour.”

The adjudicator found this despite saying this earlier in his decision in response to expert testimony of Frances Henry, a York University Department of Anthropology professor and an expert on various issues of race and racism, including racial profiling, race and the media, and race and the criminal justice system:

“I accept from Dr. Henry’s evidence that race is a factor in many social interactions in our society. Racialization affects Black men in particular, often without the conscious involvement of those making decisions, through stereotypes of them as physical, violent, and more likely to be criminal. This may lead to heightened monitoring and racial stereotyping.”

The fact that the adjudicator didn’t recognize that systemic discrimination means that race is always a factor is a problem. And this leads to the final issue with Tribunals: the lack of race-based data on Tribunal rulings. Here’s what ChatGPT said in reply to the question “Is there disaggregated race-based data on Human Rights Tribunal of Ontario decisions?”:

Disaggregated race-based data on decisions by the Human Rights Tribunal of Ontario (HRTO) is not routinely published or systematically available. If you’re interested in such data for a specific purpose, it might be necessary to:

  • Conduct independent research by reviewing HRTO decisions.
  • File a formal request for data through Freedom of Information mechanisms, if the HRTO collects race-based data not publicly available.
  • Consult existing studies or analyses on HRTO outcomes, as some researchers or organizations might have undertaken this work.

In Sinclair’s case, the adjudicator found that Sinclair failed to prove, on a balance of probabilities, that race was a factor in people calling security on him. But most Black folks reading this case would ask the same question: would they have called security on him if he was white? But we can’t know the answer to that until we start consistently adding the category “white” to all our data collection systems.

London City Hall staff no doubt have a system for tracking incidents like Sinclair’s. If staff had been required to start collecting race-based data, including the category “white”, in 2008, they would now have 16 years of data helping to answer the question “would they have done the same thing if the person was white?”

Other decisions, like McDonald v. CAA South Central Ontario, 2018 HRTO 163, also show that applicants can be successful by arguing to the Tribunal’s satisfaction that it’s more probable that the treatment they faced was discrimination because on their race (or age, disability, etc.) than the non-discriminatory reasons provided by the respondent. This should be easy to do in cases where perpetrators of discrimination provide justifications that make no sense or are easily provable lies. However, in cases like Sinclair, where the justification seems just (i.e. he was getting aggressive), we need data to prove whether white people doing similar things are being treated the same – and that requires consistently adding the category “white” to forms that track race.

Tribunals could offer an affordable, powerful path to justice for Black folks if they’re properly resourced, make decisions based on the probability of discrimination instead of explicit evidence of it and produce publicly available race-based data, consistently including the category “white”, on their rulings

This is good advice for the federal and provincial governments because, you know what they say: no justice, no peace.

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CHRC PSIC Public service

FYI, PSIC: they don’t call us niggers anymore

One of the things I did to resist the anti-Black discrimination I was facing at my department was file a complaint with the Office of the Public Sector Integrity Commissioner of Canada, or PSIC. PSIC’s mandate is on the front page of its website: “We handle disclosures of wrongdoing and help protect those who blow the whistle.” They protect whistleblowers by keeping their identities secret. The reason I’m revealing my identity now is because of the response I got from PSIC. Below is my response to PSIC Deputy Commissioner, Denis Bilodeau, who signed the letter I got.

“Mr. Bilodeau, I just received your letter explaining your decision not to investigate my complaint. Although, your decision is disappointing, it is not surprising. Your reasons for dismissing my complaint of systemic discrimination and anti-Black racism against my former [managers] at Environment and Climate Change Canada (ECCC) are of most concern. You say that my complaint lacked specificity and would be better dealt with by the Canadian Human Rights Commission. This, despite the fact that I cited the results of the 2019 Public Service Employee Survey which had data on Black federal employees – for the first time ever – and confirmed that Black employees, public service wide, and at ECCC, report discrimination levels twice the average.  In addition, I provided detailed information about the discrimination I had faced. You further justified your decision based on my assertion that the discriminatory “treatment is subtle in nature but that beyond your own experience, you have not witnessed any incidents involving colleagues.” This seems to indicate that, in order to qualify for investigation, the discrimination must be of a blatant nature like people calling us niggers to our face. This rarely happens whereas subtle forms of anti-Black discrimination are daily occurrences.

Your response is consistent with the Canadian Human Rights Commission that regularly rejects the majority of race-based complaints – and tried to do the same with mine – so your referring my complaint to the Commission is clearly inadequate as a solution.

The ineffectiveness of organizations like PSIC and the Commission in dealing with anti-Black racism complaints is one reason why I advise Black employees, including members of the Federal Black Employee Caucus which I co-founded, to use tools like race-based grievances, Access To Information and Privacy requests, the media and small claims court to seek justice.”

In her book, Race After Technology, Princeton Professor Ruha Benjamin says, “Until we come to grips with the “reasonableness” of racism, we will continue to look for it on the bloody floors of Charleston churches and in the dashboard cameras on Texas highways, and overlook it in the smart sounding logic of textbooks, policy statements, court rulings, science journals and cutting edge technologies.” Regarding the way PSIC and the Canadian Human Rights Commission currently assess race-based complaints, and applying it to a Canadian context, her quote could be reworded as:

“Until we come to grips with the “reasonableness” of racism in the public service, we will continue to look for it on the bloody floors of Quebec mosques, the videos of Canadian police officers abusing Black people, and white public servants calling their Black colleagues niggers, and overlook it in public service hiring, promoting and sanctioning practices.”

Mr. Bilodeau, our harassers no longer wear white hoods – they wear white collars.

[Sept. 4 update – I ended my original email to PSIC Deputy Commissioner Bilodeau with the question, “Given all this, please clarify what would qualify as enough specificity?” Today, I received the response, “It is not the Commissioner Office’s role to pinpoint what specific information should be provided for an investigation to be launched into your allegations of wrongdoing.”]

Categories
CHRC FBEC Proof

Tales from the Plantation #4

Burden of proof should be on those accused of discrimination not their accusers

Currently, people who file union grievances against their managers or make complaints of discrimination to organizations like the Canadian Human Rights Commission, alleging discrimination based on race, must prove two things: that discrimination happened and that it was based on race. This is almost impossible to do as most organizations require proof similar to that of the Human Rights Legal Support Centre (HRLSC). The HRLSC is an independent agency, funded by the Government of Ontario, to provide legal services to individuals who have experienced discrimination. Its website states:

“To prove discrimination, you must show that there is a connection…between negative treatment that you experienced and one of the personal characteristics (or prohibited grounds of discrimination) listed in the the [Human Rights] Code.

Put another way, to prove discrimination, you need to show…that you were subjected to negative treatment because of your gender, place of origin, family status or any one of the Code-protected personal characteristics.”

Meeting these requirements is next to impossible because, by definition, discrimination means someone doing something to you that they’re not doing to others. How do you prove they’re not doing it to others and that the difference is based on race?

One obvious way to get an answer to the first question in the workplace would be to ask your colleagues if they’re treated the same way. That works for very visible things like telework. For things like that, you don’t even have to ask as, if your manager denies your telework request, it’s pretty easy to see if she approved others’ requests because they’re not around. However, less visible types of discrimination are harder to deal with.

I had such an example recently where my boss called a meeting to engage in what I label “hyper critique”. Hyper critique is when a manager rarely, if ever, praises an employee’s work, but critiques it, most often in private meetings. Hyper critique is a common complaint of our Federal Black Employee Caucus members.

Proving whether my boss hyper critiques my colleagues is challenging. I could ask them, but most people are, understandably, reluctant to admit if they are subject to such things. They’re also often reluctant to admit if they’re not subject to such things as they may see that as admission that they’re getting preferential treatment.

So what can you do? Right now, not much. That’s why I recommend we push the public service to do three things:

  1. Shift the burden of proof to those accused of discrimination instead of their accusers; require the accused to prove that they’re not discriminating.
  2. Until the burden of proof is shifted from accuser to the accused, create a discrimination investigator function staffed with someone given the power to investigate claims of discrimination, including being able to mandate colleagues to reveal, in anonymous interviews, if they have been subject to the same treatment.
  3. Start collecting race-based data on who managers sanction.

People who are being harassed and discriminated against have enough to deal with. Let’s take one thing off their plate.

Note: The opinions expressed here are my own and do not necessarily reflect those of the Federal Black Employee Caucus. To contact an FBEC spokesperson use the Contact Us page on FBEC’s website.