Blog Series: Navigating the Human Rights Landscape – Commissions and Tribunals

June 2017

Human rights commissions and tribunals play a vital role in ensuring human rights protections are protected and promoted. This past month, legislation was passed at the Federal level and in Yukon that provides legal protection against discrimination on the basis of gender identity and gender expression. These changes reflect similar protections already in place in other jurisdictions across Canada. Here is a look at the purpose and functions of these key institutions across Canada.

Why Human Rights Instituions?

Human rights legislation, as mentioned previously in this blog series, reflects the constitutional divisions of power in Canada. There are fourteen jurisdictions, (eleven provinces, three territories, and the federal level). Each jurisdiction has human rights legislation that protects against discrimination in specific “areas”, such as employment, goods and services, publications, etc., and based on a set of “prohibited grounds”, or characteristics.

Provincial and territorial legislation apply to public and private individuals, organizations, businesses or government bodies. Federal legislation, the Canadian Human Rights Act, applies to federal government departments and agencies, Crown corporations, and federally regulated businesses.

Human rights legislation differs slightly in content between federal, provincial and territorial jurisdictions, and also changes over time, as social norms evolve. New legislation, such as Bill C-16 which passed this month, for example, expands the protected grounds under federal and Yukon legislation.

What do these changes mean?

These amendments fall under the mandate of human rights commissions and tribunals. These institutions are legislated under federal, provincial or territorial laws, such as the Canadian Human Rights Act and Yukon Human Rights Act, each mandated to protect and promote human rights within their distinct jurisdictions.

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, received Royal Assent. This amendment adds gender identity and gender expression as prohibited grounds under the Canadian Human Right Act, and amends the Criminal Code, to extend protection to hate propaganda, where an offence is shown to be motivated by bias, prejudice or hate based on gender identity or expression.

In the Yukon, the amendments to the Yukon Human Rights Act and the Vital Statistics Act, also extend protection against discrimination on the grounds of gender identity and gender expression. The Vital Statistics Act amendments will remove the requirement for sex reassignment prior to a person being able to change their birth registration.

Gender identity and gender expression are protected grounds in other provinces and territories. Egale Canada has a great resource that shows the current level of protection across Canada.

In Quebec, for example, the Quebec Charter of Human Rights and Freedoms (Quebec Charter) covers civil, political, social and economic rights, in addition to prohibited grounds of discrimination.

The Yukon Human Rights Act includes a “Bill of Rights” which provides protection to fundamental freedoms (i.e. freedom of religion and of conscience, the right to freedom of expression and the right to freedom of assembly and of association), as well as the right to enjoyment and disposition of property.

The Saskatchewan Human Rights Code also includes a “Bill of Rights” which protects fundamental freedoms, such as the freedom of conscience, expression, association and the right to be free from arbitrary imprisonment and the right to elections.

What is their Function?

There are twelve human rights commissions and thirteen human rights tribunals across Canada. British Columbia and Nunavut are the only jurisdictions that do not have a human rights commission. Human rights issues in these jurisdictions are addressed by human rights tribunals. There are tribunals in each jurisdiction, except for Saskatchewan. Commissions and tribunals perform different functions under their respective legislation.

Commissions are administrators of human rights legislation. They are mandated to promote the principles of the legislation and address issues of discrimination.

The promotion and protection of human rights, by commissions, is fulfilled through public awareness and human rights education activities. This includes creating publicly available resources, supporting awareness programs, conducting research and fostering partnerships with like-minded institutions. For more information on human rights education resources by human rights commissions, visit our May blog post.

The Ontario Commission also has an Anti-Racism Secretariat and the Disability Rights Secretariat. Each is mandated under the Ontario Human Rights Code to conduct public information and research activities related to the respective areas.

Commissions also review and investigate complaints, to determine if they fall within the scope of human rights legislation. This process varies in different jurisdictions.

Generally speaking, at the Federal level, and in the Northwest Territories (NWT), Yukon, Alberta, Manitoba, Quebec, Ontario, New Brunswick, Nova Scotia, PEI and Newfoundland and Labrador the commissions review complaints. If a complaint is accepted, the commission then refers it to an administrative body, such as a human rights tribunal or adjudication board, where it is adjudicated under the scope of the applicable legislation.

In Quebec, complaints can be submitted to the tribunal by the commission or directly by individuals. Complaints, however, can only be made on issues of discrimination and not on the fundamental freedoms set out in the Quebec Charter.

The Ontario Human Rights Commission can submit complaints, or intervene in cases, at the Ontario Human Rights Tribunal, though individuals can submit cases directly to the Tribunal. There is also the Human Rights Legal Support Centre, which is legislated to provided legal assistance to complaints with cases before the Ontario Human Rights Tribunal.

Complaints submitted to the Saskatchewan Human Rights Commission are reviewed by an adjudication board within the Commission. The complaint will be resolved through pre-complaint resolution, through mediation, by investigating the complaint, or by sending it to a hearing.

In British Columbia* and Nunavut, where there is no commission, individuals can submit complaints directly to tribunals. The tribunals do not investigate complaints, but rather decisions are made based on the evidence submitted.

Each institution has a unique process for addressing complaints. To submit a complaint, please consult the institution’s website and seek legal advice from a licensed lawyer or legal clinic. Nothing in this post is or should be interpreted as being intended as legal advice.

Visit the Canadian Human Rights Institutions Interactive Map for an overview of all federal, provincial and territorial legislated institutions, including human rights commissions and tribunals, ombudsman offices, information and privacy commissions, public complaints commissions, and children and youth advocates, or the provincial and territorial equivalents.

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*In August 2017, the BC government announced the re-establishment of a human rights commission.