06/05/2016 - Speech by Ian Fine at the Alliance for the Equality of Blind Canadians 2016 National Conference
Speaking notes for
Canadian Human Rights Commission
Presentation to the
Alliance for the Equality of Blind Canadians 2016 National Conference
April 29, 2016
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Good afternoon everyone.
It is a real pleasure to be here with all of you today.
As you’ve just heard, a lot has happened at the Canadian Human Rights Commission since I last had the opportunity to speak with you.
I can tell you that I am very excited for the changes we are making to put people at the center of everything we do.
With this approach in mind, we are making significant changes to our complaint processes.
Of course, these changes – this new way of thinking – include how we interact with the larger legal framework within which we operate.
This brings me to the issue I would like to discuss with you today:
The jurisdictional space shared by the Commission, the Canadian Radio-television and Telecommunications Commission (CRTC) and the Canadian Transportation Agency (CTA).
More specifically, I would like to speak to you about the courts’ position on why these bodies have separate jurisdiction to hear human rights matters.
And I want tell you about how the Commission’s thinking has evolved in light of what the courts have said.
In short, we intend to interpret our jurisdiction more assertively. When we can find justification to keep the complaint, we will.
As many of you know, when we receive a complaint, the law requires us to consider other appropriate mechanisms – the shorthand lingo for this obligation is “section 41.”
In discrimination complaints involving things like air travel, this means sending cases directly to the CTA.
And when it involves broadcasting, complaints are sent to the CRTC.
However, in many of these cases, complainants would prefer that the Commission deal with the complaint, rather than referring it elsewhere.
This is because some believe that organizations such as the CTA or CRTC are not experts in interpreting human rights issues.
…which is why they would prefer that the Commission handle their complaint.
Unfortunately for some complainants, the courts disagree.
The truth is: no one body has exclusive jurisdiction.
The Commission must consider another body’s jurisdiction and expertise when determining whether or not to refer a complaint.
Decision after decision has found that the CTA and CRTC have jurisdiction to hear discrimination complaints and the expertise to interpret the Canadian Human Rights Act.
In other words, the CTA has jurisdiction to ensure that transportation is accessible to people with disabilities in the same way that the CRTC has jurisdiction to ensure that broadcasting is accessible to people with disabilities.
As a result, the Commission is required to refer discrimination complaints to these bodies when they involve transportation or broadcasting.
In fact, a recent decision by the Federal Court of Appeal suggests that the CTA and CRTC may be the best, or “more appropriate” forum to resolve disputes when human rights analysis and resolution would benefit from their subject matter expertise.
It’s around this point that our thinking has evolved.
The Federal Court of Appeal suggests that the CTA and the CRTC may be the best forum to resolve disputes when their expertise in transportation or broadcasting would benefit the process.
While we are bound to respect the guidance provided by the courts, here is what we’ve changed in light of their interpretation:
We will be far more deliberate in our analysis when these types of complaints come to our door.
As we look at new complaints, we are placing a great deal more emphasis on context.
What’s at the heart of the matter and would the complainant and respondent benefit as a whole from the subject matter expertise of another forum?
Is the alleged discrimination directly related to the provision of transportation services, or did it simply occur in that environment?
For instance, if a bus station did not have an accessible entrance, how would CTA’s subject matter expertise bring value to the process?
If someone with a service dog was denied access to the lobby of a television station, does it have anything to do with broadcasting? How would CRTC’s subject matter expertise contribute to the solution?
If there is no obvious benefit to referring the case to a different mechanism, then we see no reason why a human rights issue should not be dealt with by the Canadian Human Rights Commission.
Of course, we will apply this thinking on a case-by-case basis. At this point in time, our new approach has yet to be tested by the courts.
At the end of the day, our objective is to resolve disputes with the greatest benefit to the complainant in accessing expertise that the Commission or other regulatory bodies can provide.
For those of us at the Commission, that means that complaints related first and foremost to human rights should stay with the Canadian Human Rights Commission.
This is just one of the many ways we are changing the way we work in order to put people first.
I am happy to answer any questions you may have.