part 5: pressure and reform Flashcards
(28 cards)
Formal Account of dispute resolution
- Individual or commission can bring complaint (commission can kick out a compliant, gatekeeping)
- investigation (gatekeeping again)
- Inquiry and Hearing
- Remedies
Policy Account of dispute resolution
- 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
Street-Level Account of dispute resolution
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)
reasons to prefer agencies
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
Seneca College v. Bhadauria facts
- 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
Seneca College v. Bhadauria ratio
No common law remedy for discrimination, court affirms institutional preference
Vizkelety concern about discretion that commissions and agencies have
- 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
what does Vizkelety suggest
- Think it was right to exile courts from human rights project
- Direct right to go the tribunal!! But not common law remedy
Vizkelety thoughts on courts
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
2 critiques
- Administrative
2. Substantive
Administrative critique
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
reasons for failure under Administrative critique
- 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
Three main reforms for administrative critique
- Movement in adoption of restorative justice
- direct access tribunal
- creation of 21st cent commission
Movement in adoption of restorative justice
use of resolution conferences and use of inquisitorial model
Resolution conferences
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
Why might RJ administratively work better?
Whatever outcomes will rise from this process will more likely be complied with, because the people involved where the ones designing them
counter argument for RJ?
- 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
direct access tribunal
Ontario and BC eliminated committee screening and can file directly with the tribunal
direct access tribunal answer to __?
answer for problems of “gatekeeping” functions that the commission took on
counter argument for direct access tribunal
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
creation of 21st cent commission in BC
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
what did 21st cent commission in BC look like
composition is really small -> one commissioner. But then you have advisory council, working groups
small, streamlined and efficient
working groups
Including members of the public
Why “21st century commission”?
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
