We are here today picketing the Nova Scotia Human Rights Commission for its many problems, failures and disappointments. These constitute a gross disservice to the people of Nova Scotia.
We are members of a human rights group called Equity Watch, formed in early 2018 after firefighter Liane Tessier finally received an apology from the Halifax Fire Service for years of harassment, bullying and discrimination. In this age of #MeToo and #It’sAboutTime, our goal is to hold the feet of government, employers and the Human Rights Commission to the fire in pursuit of employment equity.
Here are just a few cases that speak to big problems in the Human Rights Commission:
The Liane Tessier case is an egregious example of Commission neglect. She first applied to the Commission in 2007-8. Four years later, the Commission dismissed her case. The Nova Scotia Supreme Court ordered the Commission to reconsider. It found the Commission had seriously damaged her interests, commenting: “Ms Tessier must now participate in a new investigation, seven years after her complaint was initially filed, and nine years after some of the events described in the complaint. It is reasonable to expect that the cogency of the evidence will be compromised by the passage of time. Memories fade and witnesses may now be unavailable.” In late 2017, as a public board of inquiry was ready to start, the Fire Service settled the case with an undisclosed financial reward, a public apology and a promise to reform its treatment of women. The Commission also admitted its part in her 10-year ordeal.
Kathy Symington, another HRM firefighter, first complained to the Commission in 2006 about sexual harassment and sex discrimination in the Fire Service. The Commission “discontinued” her complaint but the harassment never stopped. After hearing of Tessier’s fight, she reapplied to the Commission in 2015. But for three years, the Commission has done almost nothing to pursue her case.
Liz Cummings and Shannon Sampson, who are married, complained to the Commission in 2016 about discrimination on sexual orientation by their employer Irving Shipyards. The Commission dismissed their complaints in January 2018. They have recently challenged that decision at the Nova Scotia Supreme Court.
In early 2016, Ann McGettigan, a Continuing Care Assistant in home care, suffered sexual harassment and assault by a client and reported it to her employer. Shortly after, she launched a complaint at the Commission, which dismissed it a year and a half later for lack of “merit.” Ms. McGettigan has launched a judicial review of that decision in the Nova Scotia Supreme Court.
In March 2017, the Nova Scotia Supreme Court ordered the Commission to hear the complaint of a group of wheelchair users who alleged systemic discrimination by the province in its enforcement of public bathroom accessibility. The Commission had twice rejected the group’s complaint the year before. In a written decision, Justice Frank Edwards labelled the decisions by two human rights officers “unreasonable.” In response to the Commission’s s argument about its high caseload, Justice Edwards said, “Counsel for the Commission argues that the HRC would be overwhelmed if every inquiry had to be treated as a complaint. I am not impressed by that argument.”
Equity Watch is compiling a list of problems concerning the Human Rights Commission, but a partial list would include:
- Budget: From 2017 to 2019 the Commission’s budget will have declined (in real terms i.e. accounting for inflation) by $102,200. Its staffing will also have declined.
- Review of Act: The Human Rights Act is 50 years old and needs to be reviewed and kept in line with advances in the rest of the country
- Delay: Investigations generally take much, much too long; investigation officers appear not to communicate with plaintiffs frequently enough; it can be several months between contacts; transparency is missing
- High Rejection Rate: There is a high rate of decisions not to proceed. The wheelchair users’ case above, confirms our suspicion that the HRC does this in order to reduce its caseload.
- Plaintiffs vulnerable without lawyer: Plaintiffs who can afford a lawyer have sometimes been get the Commission to take up cases it had previously rejected. The inability to afford a lawyer should not impair plaintiff’s case.
- “Resolution Conferences”: The Commission greatly over-uses “resolution conferences.” They may work where the parties are few and the facts straightforward; but not where the parties are several and the facts complex. The “restorative justice” approach was developed to help disadvantaged minorities avoid automatic incarceration in the criminal justice system; but the concept has been stretched by advocates beyond its usefulness. At the Commission, there appears to be pressure on the plaintiff to settle out of fear that failure to do so will result in their case being dismissed and not proceeding to a board of inquiry
- Legal Representation at Boards of Inquiry: The Commission’s lawyer will not represent plaintiffs at a Board of Inquiry. Plaintiffs can represent themselves, but prudence dictates obtaining often prohibitively costly legal counsel.
- Damages: They appear to be too low; lives, careers and lifetime earnings can be ruined by bullying, harassment and discrimination at work.
- Ombudsman’s Report: In 2014 the Ombudsman’s office began an investigation of the operations of the Commission (mentioned again in the Ombudsman’s 2017 Annual Report.) But the results were never made public though nine of the recommendations have been published. There is no context when 37 of the 39-pages of the report missing. This is part of an atmosphere of extreme secrecy surrounding the Commission.
- Non-disclosure agreements or gag-orders: Where the parties reach a settlement outside of a Board of Inquiry, defendants often insist that plaintiffs sign an agreement not to disclose any details of the settlement. Settlements are part of the educative objective of the Human Rights Commission and gag orders interfere with that objective.
- Return to work: Too often, where plaintiffs cases are vindicated at Boards of Inquiry or private settlements, financial compensation alone is the result, without a return to work.
This is a partial list of our demands vis a vis the Human Rights Commission
- The budget of HRC should not be decreased, but increased.
- Hire more staff to expedite investigations; staff should report back regularly to plaintiffs.
- Review 50-year-old Human Rights Act and make appropriate changes to bring it into line with other provinces.
- Let more cases proceed to board of inquiry.
- Ontario has a publicly-funded “Human Rights Legal Support Centre” to provide plaintiffs with legal advice and representation at all steps of the process. Nova Scotia must emulate this.
- The Ombudsman’s Office should release its entire March 2017 report on the Human Rights Commission.
- Cut way back on the use of resolution conferences.
- Allow boards of inquiry more leeway to compensate victims for the real costs of discrimination.
- No non-disclosure agreements except as the plaintiff wishes.
Come show your support for workplaces free from harassment, bullying and discrimination. Liane Tessier invites you to a public rally, Sunday, April 8 at 12:15 pm, DANSpace, 1531 Grafton St., Halifax