NB Human Rights Code: Enforcement and Funding
St. Thomas University
5 December 2007
The New Brunswick Human Rights Code does a lot of things right. In many ways it matches the rights guaranteed by Canada’s international obligations and the conditions of other province’s human rights codes. However, it is lacking in several crucial areas, and has some severe handicaps in terms of enforcement. These problems can be overcome with more funding and by adopting some aspects of other provinces’ human rights codes.
The New Brunswick Human Rights Act (NBHRA) fulfills many of Canada’s obligations. It conforms well with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women, all of which Canada has ratified. The NBHRA prohibits discrimination on grounds that are essentially the same as the UDHR and the conventions. It has a very similar goal, the total elimination of discrimination (except when justified by something like a BFQ). It sets up all of the things the conventions require for their enforcement; laws to make discrimination illegal, a body to educate people to stop discrimination, and a body to find and enforce remedies for victims of discrimination. The ICCPR specifically outlines this where it says, “adopt(ing) such laws or other measures as may be necessary to give effect to the rights recognized,”(Article 2 Section 2), and, “ensur(ing) remedies are enforced,” (Article 2 Section 3).
The NBHRA tries to eliminate discrimination through two main methods. The first is education, making people aware of their rights and what practices may be discriminatory. This is a very effective way to help end discrimination and is a mandate shared with all of the other provinces in Canada. The commission is founded on the idea that discrimination stems from ignorance. By educating people, the commission hopes to reduce ignorance and as such reduce discrimination.
The second way the commission tries to end discrimination is through enforcement. This, again, can be accomplished through two methods. The first method is non-adversarial. All cases start with this process, and the commission prefers that they end there as well. What generally happens is, the two parties sit down and talk in the presence of human rights officers. The parties are encouraged to compromise, and the human rights officer tries to show the person who discriminated how he or she was wrong. This is the best way to go about enforcing human rights. By using non-adversarial means, the commission looks for the best in people and tries to teach, as opposed to order, them to stop discriminating. As such, it gives the parties involved a chance at maintaining a relationship.
The second method of enforcement is the adversarial process. This means the case is taken to a tribunal, which acts as a court. If it finds someone guilty of discrimination it can order him or her to do anything or stop doing anything to comply with the NBHRA. The tribunal can also award damages or, force the person who discriminated to reinstate the victim to his or her position, or even charge the defendant with an offence. This method is needed when everything else fails. It is the only way to ensure that discrimination is ended in a fair and just manner. It is also better then using the courts system, which was all that was in place before the commission. The court system required that discrimination be proven beyond a reasonable doubt, which made convictions extremely difficult. It was also very slow and expensive.
The New Brunswick Human Rights Act has an important advantage over some other provinces built in to its tribunal process. Unlike provinces like Alberta and Prince Edward Island, New Brunswick’s act stipulates that tribunal members may not be chosen from the human rights commission. This means the investigators of complaints cannot try a complaint. This helps to ensure that those sitting on a tribunal are objective, and is instituted in most other provinces. New Brunswick does not have a permanent tribunal, as many other jurisdictions do, but this is a minor problem when compared to ensuring the neutrality of tribunal members.
New Brunswick does a good job of meeting the goals of the CEDAW. Its prohibited grounds of discrimination include pregnancy, something absent from the human rights acts of some other provinces, like Ontario and Nova Scotia. A woman should not be discriminated against because she has to take time off during or immediately after a pregnancy, nor should she be discriminated against if she has to take sick days to tend to her children. Women deserve all the same rights as men on the workplace, and equality is better ensured by protecting pregnancy.
New Brunswick’s Human Rights Act, and the acts of all the other provinces, allow for discrimination based on a Bona-Fide Qualification. This means that an employer, or landlord or anyone else who could discriminate, may discriminate if they can meet certain standards. They must prove they are discriminating in good faith, in a way rationally connected with their business, and in a way that is reasonably necessary. They also must prove that not discriminating would place an undue hardship on them. Some people are not strong enough to do the job of a firefighter. They should not be hired out of consideration for their safety, and the safety of others. Religions would most likely want their leaders or priests to follow their belief system, so it is understandable if the Catholic Church refuses to hire and atheist as a priest. Some discrimination is necessary, and a BFQ is the best way to allow it without violating Canada’s international obligations.
Another important thing the NBHRA does right is allow for affirmative action. This is recognized in all of the covenants. It is important to give specific groups, like women and visible minorities, a leg up in a society that has historically been unfair to them.
For all the things New Brunswick does right, it also has some severe handicaps. The NBHRA has some big problems with conflict of interest and a backlog of cases. Also, like almost every other commission in Canada, it the New Brunswick Human Rights Commission has big problems with funding.
The Commission in New Brunswick has no set term for its members. They are appointed by the Lieutenant Governor in council, which basically means they are appointed by the cabinet. The cabinet is also in charge of the commissioners’ salaries. This means the cabinet can appoint whomever it wants to the commission, set their pay, and fire commissioners at will. As such, if a commissioner decides to crusade against the government he or she could be fired. This means commissioners may be less willing to act on complaints made against the government over fear for their jobs. There has been one instance of a commissioner being fired after pursuing a complaint against the government in New Brunswick. It cannot be proven that the commissioner was actually fired as a result of acting on that complaint, but it is a possibility. In practice, this may not be much of a problem and they government may never intervene to stop a complaint against itself. However, a lack of independence makes the commission look bad. People may be less willing to go to the commission if they think it is a pawn of the government. Other commissions, like Newfoundland’s, have their commissioners on a set term of office. This gives them more freedom, as the commissioners do not have to try and please the government to keep their jobs. Quebec has an even better system. It’s commissioners must be elected by 2/3rds of the province’s national assembly, giving them even more independence.
New Brunswick also has a problem with its tribunal process. It is mandatory for the commission to investigate any complaint with merit, but it is not mandatory for any unresolved complaint to go to the tribunal. With an ever-increasing workload and a lack of funding, this means some less important or non-unique complaints could get passed over. An even bigger problem is that complaints must have approval from the Minister of Post‑Secondary Education, Training and Labour to go to the tribunal stage. This is another conflict of interest. The commission actually has to get approval from the government if it wants to pursue a case against the government. Again, in practice this may not be much of a conflict, but it looks terrible and could easily discourage complaints. Other provinces, such as Manitoba, Alberta and British Columbia require that all valid complaints, which cannot be solved through non-adversarial means, go to a tribunal. This is far more effective when it comes to giving a chance for remedy to every complainant.
New Brunswick, like all the other provinces, has a big problem with funding. Funding for human rights commissions has increased fairly steadily since their creation. However, the mandates of commissions continues to grow and the amount of complaints has increased far faster then the amount of funding. This means a huge backlog of cases and not enough officers to deal with them. This is a problem in every jurisdiction, except the well funded federal jurisdiction. Provinces without a mandatory tribunal process may dismiss a lot of cases, and provinces with a mandatory tribunal process may have a gigantic backlog. Cases can take so long to resolve that the tribunal’s decisions may do little good for victims. Also, some defendants have managed to win trials by claiming that their right to a trial in a reasonable amount of time was violated. This lack of funding hits even harder when combined with New Brunswick’s lack of a mandatory tribunal process and its requirement for ministerial approval.
The NBHRA does not allow for appeals. This is a problem because a tribunal’s decision could be wrong just as easily as a court’s decision. Court’s have two levels of appeals, and tribunals are generally made up of people with much less legal experience then judges. As such, there is a greater chance for a miscarriage of justice, and basically no way to rectify it. The only saving grace is that penalties are much less harsh with tribunals, (maximum fines are under $6000), but a bad ruling could be very damaging to a person’s reputation and/or business. Newfoundland is a better example in this case, as its human rights code allows for appeals.
All of the UN’s covenants that Canada has signed on to require that the countries party to them, in the words of the ICCPR, “undertake to respect and to ensure to all individuals the rights in the covenant,”(Article 2). The covenants make it mandatory for a country’s laws to forbid discrimination, to create practices that stop discrimination, to ensure victims of discrimination have an effective remedy, and to enforce remedies. The New Brunswick Human Rights Act brings these laws into force, and creates a body to help stop discrimination, find remedies for victims and enforce remedies. However, a lack of funding, the requirement for ministerial approval and the lack of a mandatory tribunal stage and a set term for commissions are crippling for the Human Rights Commission. These problems mean that not all victims of discrimination will be able to get an effective remedy. As such, the NBHRA needs some serious revisions.
The government of New Brunswick has to do several things to make its human rights commission better. First, it must eliminate any possibility of a conflict of interest. It has to do two things to accomplish this. To begin with, the government has to give its commissioners set terms of office that cannot be renewed. This way commissioners can be free to pursue complaints against the government without fear of reprisal. Also, if commissioners have no way of renewing their term, they have no reason to suck up to the government to be reappointed. The other possible solution to the problem of terms that are not set, a life-long term, has its own set of problems (namely that commissioners with poor performance cannot be removed) and should be avoided. To go even further, the commission should be made even more independent by adopting a practice from Quebec. Commissioners should be elected by 2/3rds of the legislature. This is a more fair and democratic way to appoint commissioners than leaving that power in the hands of the cabinet. The second thing the government must do is remove the requirement for ministerial approval for cases going to the human rights tribunal. It is ridiculous that an agent of a government that could have a complaint lodged against it must approve of the complaints.
The New Brunswick government also must make it mandatory for every case with merit, that cannot be solved through non-adversarial means, to go to tribunal. This will ensure that every complainant can get a chance at receiving a remedy. Because making this process mandatory would almost definitely lead to a huge backlog, both the New Brunswick and federal governments must invest more money and resources into the human rights commission. A remedy is much less effective if it comes after years of legal battling because of a backlogged system. Giving the commission the resources it needs is the only way to ensure cases are dealt with in a timely matter.
The New Brunswick human rights commission is very similar to the commissions across Canada. It endeavours to eliminate discrimination through education and two forms of enforcement. It is a great tool in the fight for human rights. However, it has a lot of problems that handicap it in living up to Canada’s international human rights obligations. These handicaps can be removed with more funding, and by adopting some of the practices from other provinces.
Comeau, Michael. NB Human Rights Code. Codes and Commissions. St. Thomas University, Fredericton, NB. 12 September 2007.
Comeau, Michael. Canada’s International Obligations. Codes and Commissions. St. Thomas University, Fredericton, NB. 26 September 2007.
Comeau, Michael. Chapter 2. Codes and Commissions. St. Thomas University, Fredericton, NB .
3 October 2007.