N.W.T. human rights complaint system too complex, too legalistic
The 11-year-old human rights complaint system in the Northwest Territories is broken and in urgent need of repair, according to the head of the Northwest Territories Human Rights Commission.
"Our system, we think, right now is not providing a fair outcome too often to anybody who comes in, whether they're a complainant or respondent," says human rights commission chair Charles Dent.
It's an expensive process for one that doesn't work. The budget for this year is $1.35 million.
Both sides in a recent complaint alleging racism say they were dissatisfied with what they found was a lengthy process that was difficult to navigate without a lawyer.
Bessie Kahak complained to the commission that she had been discriminated against on the basis of her Inuit ancestry when the Liquor Shop refused to sell her two six-packs of beer on March 15, 2014. The clerk who dealt with her said he turned her down because he suspected she was intoxicated. Kahak says she was not.
Her husband, Donald Mercredi, initially complained to the liquor commission, which cleared the Liquor Shop of any wrongdoing. Kahak then filed a complaint with the N.W.T. Human Rights Commission.
There began an 18-month process — short by N.W.T. human rights complaint standards — wherein Kahak was left to navigate a legalistic process without a lawyer, while the owners of the Liquor Shop were left with an allegation of racism hanging over them and their business.
The complaint triggered an investigation by the office of the director of human rights, which led to 13 pre-hearing conferences and a two-day hearing held in September.
Last month, adjudicator Louis Sebert released his decision.
"I find no evidence the refusal to serve was related to the complainant's ethnic or racial background and therefore dismiss the complaint," he wrote in his 11-page decision.
Despite being vindicated, the owners of the Liquor Shop were far from happy. Perry and Donna Smith issued a scathing statement that criticized human rights staff, the process and Sebert.
They say because there was no evidence to support it, the complaint should have been dismissed early on, before any hearing. They say the only person interviewed during the initial investigation was the complainant, and that there was no attempt to mediate a resolution. The N.W.T. Human Rights Act requires an attempt to be made "by mediation or other means" to resolve complaints.
The Smiths also say the complainant did not show up for nine of the 13 pre-hearing conferences and challenge Sebert's suggestion in his decision that that did not delay the process.
They say Sebert decided no recordings, minutes or transcripts would be kept of what was said during those conferences.
"This whole thing happened because HRC staff did not do their jobs," wrote the Smiths, who refused to be interviewed for this story.
"It is going to happen again because not one of them is responsible or accountable for doing their jobs."
The Smiths point to a clause in the Human Rights Act that exempts the commission or any of its staff from being liable for anything they do or don't do in good faith in the exercise of their duties.
At the hearing, Perry Smith said business declined at his store when the complaint was reported in the media. He said staff morale also suffered.
Bessie Kahak initially left the store when refused service. According to store staff who were there that day and testified at the hearing, Kahak's husband, Donald Mercredi, was the one who initially made an issue of the refusal.
It was Mercredi, not Kahak, who filed the complaint that was dismissed by the liquor commission, but he did not appear and did not testify at the human rights hearing.
Kahak says she did not show up for the pre-hearing conference hearings because she was "terrified" of the process she was now locked in. She has limited education and no legal training. The Smiths had a lawyer, but she could not afford one. Legal Aid does not help with human rights complaints.
The process used to settle human rights complaints in the N.W.T. seems more designed for lawyers than laypeople. It's almost as legalistic as the court process used to settle civil matters.
"It's become very court-like," says Dent.
"Respondents are worried about the amount of money they're putting into it, but if you think about a complainant who may have a valid complaint, they're left typically on their own. They have no support. Most people cannot afford a lawyer.
"So you could have a situation where somebody was egregiously discriminated against, may not have English as their first language, and they're stuck in this system where they have to come up with precedent and legal arguments about why their case should move forward."
Then there's the low standard for screening complaints, a standard which allows the process to grind on even when there is no evidence to support a complaint.
"The threshold for information that they have to provide is really quite low," says Dent.
"Based on an N.W.T. Supreme Court decision that happened a while ago when a case was dismissed by the director, directors have been told by the courts it's a very low standard for moving something forward."
In that case, in which a student alleged racial discrimination at Aurora College, the judge found that it's not the job of the staff member who investigates complaints to weigh the credibility of complainants or what they say. The judge said that's a task for the adjudicator at a public hearing.
These problems — and others — were identified in an independent report the commission ordered last year.
The consultants who wrote the report studied cases handled by the commission from 2009-2014. It found that the hearing process is "very formal, legalized and adversarial." It found that the decisions that came out of the hearings, "are long, legalistic and written for lawyers or reviewing courts," and said this is particularly problematic, "because usually one or more of the parties is self-represented and not legally trained."
The consultants also found that the standard for screening complaints before they go to hearings is too low, rendering initial investigations almost meaningless.
"These limited investigations rarely offer a detailed review of all of the facts and make few findings," say the consultants in their report.
They recommended changes to the Human Rights Act to raise the threshold to send complaints to hearings.
The commission has tried to introduce an early settlement process to reduce the need for lawyers, but with a low threshold for a public hearing, there's less incentive for those with lawyers to engage in the less formal process.
Dent says the commission is also trying to learn from other provinces that are pioneering a less formal system — one designed to get people talking instead of lawyering up.