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Report Questions Need for BC Human Rights Tribunal Changes

Law institute tells province more public consultation needed before accepting attackers' arguments.

By Andrew MacLeod 17 Nov 2010 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Reach him here.

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Former labour minister Murray Coell ordered review.

The British Columbia government is considering a report about what, if anything, to do about changing how workplace disputes are settled in the province.

Those pushing for change -- mainly lawyers representing employers -- argue the process for hearing human rights complaints needs to be streamlined and reworked to apply better to workplaces. But other observers, including human rights advocates and union leaders, say the push is an attack on human rights in the province.

In July, the B.C. Ministry of Labour asked the B.C. Law Institute to study the merits of setting up a new workplace tribunal. The BCLI recently published the resulting report on its website.

"The essence of the concept put forward by the Ministry is that a single tribunal would deal with all employment related disputes now adjudicated by the Labour Relations Board (LRB), the Employment Standards Tribunal (EST), and the Human Rights Tribunal (HRT)," the 61-page report said.

"While theoretically the concept of a Workplace Tribunal for B.C. has some merit, the proposed model leaves too many key features of the system unclear to permit a full analysis of the strengths and weakness of the Workplace Tribunal," the report said.

More consultation needed

The model the ministry proposed left too many questions unanswered, they wrote, including whether it would be part of a workplace tribunal or the ministry of labour or neither. They wondered who would have the power to make determinations, and whether they would involve hearings.

"While the proposed model would appear to integrate decision-making to some degree, it would also fragment human rights adjudication in BC," they found. "This outcome renders the case for the Workplace Tribunal somewhat less compelling."

They also noted there were alternative solutions proposed by participants in the consultation. Nor could they find other jurisdictions with anything like what the ministry was proposing for B.C.

"There was significant disagreement amongst participants over whether the existing overlap in jurisdiction was problematic," they said. "Dissatisfaction was not universal and was characterized by serious divisions among the stakeholder sectors."

There was also disagreement about what to do. "One vision of a Workplace Tribunal envisages a newly created, well-funded tribunal, with efficient costs and experienced and proficient members," they said. "However, it is not clear that creating a new entity will result in improved funding, better efficiency and greater experience and that existing problems will not be imported into the new tribunal."

If the ministry chooses to make any changes to jurisdiction over human rights complaints, the report warned, it should first lead consultation "in a more public manner."

It concluded, "It is clear that the fate of the HRT will have a significant impact on British Columbians and that stakeholders hold strong and polarized opinions about reforms in this area."

Proposal seen as an attack

Labour Minister Iain Black, appointed in the Oct. 25 cabinet shuffle, was unavailable for an interview. A spokesperson said the ministry would provide a statement by email, but called back to say it wouldn't be ready by publication time.

It has been clear throughout the process that the proposed changes were deeply divisive.

In a recent interview, B.C. Federation of Labour president Jim Sinclair said the proposal for reform appears driven by the fact the HRT has found in favour of workers in some recent decisions. "It's really an attack on human rights in my opinion," he said. "It really is the restructuring of human rights in British Columbia."

It's a small group of employers who want to get rid of the tribunal in its current form, said Sinclair. While they drove the review, the provincial government supported them far enough to turn it over to the BCLI, he said.

Peter Gall, a partner in Vancouver law firm Heenan Blaikie LLP, and perhaps B.C.'s foremost labour lawyer working on behalf of employers in the province, wrote an 18-page position paper on why he believed change is needed.

Former Attorney General and roommate to Premier Gordon Campbell, Geoff Plant, is also a partner in Heenan Blaikie.

Gall found enough support from the provincial government, however, that former Labour Minister Murray Coell ordered the review by the B.C. Law Commission, Sinclair said.

Tribunal chair let go

Interest in changing the dispute resolution mechanism appears to be waning, said Susan O'Donnell, executive director of the B.C. Human Rights Coalition. "There doesn't seem to be as much enthusiasm for the supertribunal as there was when I got back from vacation in July."

At one time the government had said it was prepared to draft legislation by next summer, but the word from a labour ministry official at a recent dinner was the province is in no hurry to make any change, she said.

Gall's interest in reform was largely driven by his loss in a case where Central and South American workers working on the RAV Line were found to be treated unfairly, she said. (Vancouver city councillor Geoff Meggs asserted the same in an October blog posting.)

"He was furious with the RAV line case," she said.

Not only did it spark Gall's push for the review, but may have played a role in the government's July decision not to reappoint former Human Rights Tribunal chair Heather MacNaughton, she said. "He was furious at that decision and that's why he wanted to get rid of Heather."

Gall was telling people in June, before the government announced it's decision, that MacNaughton would not be reappointed, she said.

Lawyer issued position paper

Gall did not return The Tyee's calls by publication time.

His position paper on the tribunal, however, outlines his thinking without mentioning the RAV case.

"The Human Rights Tribunal merely adds an additional, unnecessary and highly formalistic layer to the process of resolving those workplace disputes that include human rights issues," he wrote.

"Instead of the present system, what is proposed here is the creation of an expanded workplace tribunal to deal with all workplace disputes, including those relating to human rights, in both the unionized the the non-unionized setting," he wrote.

The new tribunal would clear up confusion over who has jurisdiction over human rights disputes in unionized workplaces, he wrote. "More significantly, it would address the substantive concern that . . . only a body with a specialized understanding of workplaces, whether in the union or the non-union sector, can provide a sufficiently sensitive, knowledgeable and effective resolution to workplace disputes."

He describes two recent HRT decisions as demonstrating an "unduly protectionist and overly broad view of its own jurisdiction, a procedurally rigid and formal approach to decision-making, and a lack of appreciation for the realities and exigencies of the organized workplace."

A response to Gall's paper by Robyn Durling was submitted to the BCLI on behalf of the B.C. Human Rights Coalition.

"It has been suggested that there are problems with the Tribunal and its process, including unnecessary duplication of process," Durling wrote. "We do not agree and we see no statistical evidence to support those assertions. Especially when compared with other models."

Durling argued for making the tribunal more independent of the government, providing more assistance to people making complaints and creating a centre to offer more education on human rights.  [Tyee]

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