part 5: pressure and reform

Question 1

Formal Account of dispute resolution

Answer 1

• Individual or commission can bring complaint (commission can kick out a compliant, gatekeeping)
• investigation (gatekeeping again)
• Inquiry and Hearing
• Remedies

Question 2

Policy Account of dispute resolution

Answer 2

• Effort to improve efficiency and productivity by adopting practices of private sector
• More rigorous application of gatekeeping so tribunal is last resort
• Measure of success is how many they can kick out (40-60%)
• Discrimination in system? Not all complaints moved at same speed. Unfairness working in system

Question 3

Street-Level Account of dispute resolution

Answer 3

Front line staff that are ultimately making human rights law, what even gets into the system, these are the people making that determination (have discretion)

Question 4

reasons to prefer agencies

Answer 4

Courts are inefficient -> time, cost, frustration. Commission is faster and simpler
- Commission not only carry your complain, but also act like translators for you to initiate you into system

Question 5

Seneca College v. Bhadauria facts

Answer 5

• Highly educated East Indian woman with teaching certificate replied to ad in newspaper by College 10 times
• College wrote her to say she would be contacted for interview, never was and non-East Indian people with lower education hired

Question 6

Seneca College v. Bhadauria ratio

Answer 6

No common law remedy for discrimination, court affirms institutional preference

Question 7

Vizkelety concern about discretion that commissions and agencies have

Answer 7

• Human rights commissions not required to provide reasons why they are dismissing it
• Sees this as gross injustice, people in private lives at stake, should be able to bring their claims
• Says people should have rights to follow claims even if commission say no, should be able to move your own case forward

Question 8

what does Vizkelety suggest

Answer 8

• Think it was right to exile courts from human rights project
• Direct right to go the tribunal!! But not common law remedy

Question 9

Vizkelety thoughts on courts

Answer 9

It’s a good thing not to go to crts, ideological differences, will contaminate human rights projects
- common law headed in other direction (Christie), at best would have produced doctrine that is vague and uncertain

Question 10

2 critiques

Answer 10

1. Administrative

2. Substantive

Question 11

Administrative critique

Answer 11

Claimed advantages of agencies were arguments of access and efficiency

• Grismer dies before he is ever given judgement - evidence of long process
• McKinnon - decades long
• Action Travail - too much time has passed, case closes
• Seems hard to make the claim of efficiency on the evidence

Question 12

reasons for failure under Administrative critique

Answer 12

• The number and complexity of cases are growing
• starting to have systemic discrimination cases
• A pulling back of resources for many institutional systems
• Part of delay is being credited to the commissions gate keeping role

Question 13

Three main reforms for administrative critique

Answer 13

• Movement in adoption of restorative justice
• direct access tribunal
• creation of 21st cent commission

Question 14

Movement in adoption of restorative justice

Answer 14

use of resolution conferences and use of inquisitorial model

Question 15

Resolution conferences

Answer 15

not a claimant respondent dynamic. Bringing in more people effected by the discrimination. Sense that this is a public concern. Getting out of idea that there is a private interest at the root of it, trying to understand discrimination in its social or public harms -> effects more than just the individual

Question 16

Why might RJ administratively work better?

Answer 16

Whatever outcomes will rise from this process will more likely be complied with, because the people involved where the ones designing them

Question 17

counter argument for RJ?

Answer 17

• Seems to rely on good faith and participation – not sure how typical that is of HR cases
• RJ privatizes in some ways what should be public
• For RJ to work, need large commitments of time and resources, and skilled people to run it

Question 18

direct access tribunal

Answer 18

Ontario and BC eliminated committee screening and can file directly with the tribunal

Question 19

direct access tribunal answer to __?

Answer 19

answer for problems of “gatekeeping” functions that the commission took on

Question 20

counter argument for direct access tribunal

Answer 20

Tribunal still had power to dismiss claims not just based on merit of case, but claims about it being a public system – this is public project, not just administration of individual claims
- Couldn’t get out of fact that this is still a public project – other foot in gov and bureaucracy – not just administrating individual complaints, doing it in service of a public project

Question 21

creation of 21st cent commission in BC

Answer 21

In BC, commission got rid of in 2012 and re-established in 2017. When it was re-established. Without commission there was no one acting in the public interest, it looked like private law

Question 22

what did 21st cent commission in BC look like

Answer 22

composition is really small -> one commissioner. But then you have advisory council, working groups

small, streamlined and efficient

Question 23

working groups

Answer 23

Including members of the public

Question 24

Why “21st century commission”?

Answer 24

Because this might be the next step in the evolution of the human rights project - movement from criminal law, to labour law, to machinery, now they are rethinking what this agency will look like

Question 25

21st century commission and systemic discrimination

Answer 25

giving commission responsibility to approving special programs (key remedial measure for systemic discrimination)
- through the educational work they are going to foster change

Question 26

Substantive critique

Answer 26

What kind of justice does the system deliver?

- Commissions did not go far enough, fast enough, not deep enough, they never really did this transformative work

Question 27

how is janzen seen

Answer 27

Jansen is branded as a great moment in human rights law, yet the victory seems small and pathetic in comparison to how Jansen views it -> the thing we celebrate in judgement, how meaningful is it for people?

Question 28

what does janzen show

Answer 28

this case shows this is a public law project, pursuit of public justice
- What about though the private interests of people? This is a public project but not looking at the individuals