Adjudication of Workplace Human Rights Complaints: A Thought Experiment

When an employee is terminated and seeks legal recourse, overlapping issues often give rise to potential complaints in a multitude of legal arenas: wrongful dismissal (civil lawsuit), workplace safety/injury (WorkSafeBC), unpaid overtime (Employment Standards Branch), and discrimination (BC Human Rights Tribunal), to name a few. Our job as lawyers is to determine and pursue the appropriate claims through the correct forum.

An option often left to the wayside is human rights. Due to the well-known systemic delays in the Human Rights Tribunal process, we find ourselves advising clients that a complaint may take up to five years to resolve. While the Tribunal is working hard to reduce the delays, they are not going away anytime soon. 

Practical reality dictates that claims be resolved sooner. This often means termination claims with a legitimate human rights component are resolved for a monetary payment only, before the human rights complaint can be processed, let alone mediated or formally heard. This is particularly unfortunate when a client expresses that “it’s not just about the money. I don’t want this to happen to anyone else”.

Employers are impacted too. The notion of a potential complaint surfacing 12 to 18 months after the incident creates incredible uncertainty. Prejudice results, as evidence is deleted or lost and key witnesses become inaccessible. By the time of hearing, employers can be exposed to enormous wage loss claims under the make-whole remedy.  

Losing the opportunity to proceed in a timely manner through the human rights process means both parties lose access to the unique remedial powers of human rights adjudicators. For employees, these include remedies like reinstatement or mandated training or policy reform. Employers lose the chance to have the complaint dismissed, or to fully understand what training or policies could prevent them from receiving future complaints.¹

The current procedural delay highlights this issue and unlocks a broader thought experiment: Can we look at other forums and reconceptualize adjudication of human rights complaints, so they are not always de-prioritized for a quicker monetary resolution?

Having a Commission that screens complaints

B.C. re-established the Office of the Human Rights Commissioner in 2018. Its mandate is to address the root causes of discrimination through education, research and reporting on key issues, as well as through policy advocacy. It does not process or hear individual complaints.²

For federally regulated employees, human rights complaints must be filed with the Canadian Human Rights Commission. This Commission screens complaints to assess whether they should go to the federal Tribunal for determination. The Commission can also facilitate mediation.

Unfortunately, the federal Commission is currently plagued with delays comparable to the provincial regime. Further, the Commission’s powers are limited, and it cannot grant remedies or decide whether discrimination actually occurred.

Treating discrimination as a societal wrong

Crimes defined by the Criminal Code are treated as independent wrongs against society. Prosecution is handled by the state and, appropriately, the victim and accused have no ability to negotiate and settle. Could claims of discrimination be taken out of the hands of the parties and made subject to a quasi-prosecution process? This would inevitably create constitutional issues well beyond the scope of this article. 

Also, a common critique of our criminal justice system is that, because crime is viewed as a wrong against society, and prosecutors represent the state, victims are left without meaningful involvement in the process or outcomes.³ Given that human rights are quasi-constitutional and protect an individual’s particular identity and characteristics, there must be a means to provide compensation to the complainant for the harm suffered, alongside measures to penalize the respondent’s behaviour. 

Treating discrimination as a regulatory issue

WorkSafeBC has a mandate to regulate health and safety in the workplace. The Workers Compensation Act (“WCA”) and regulations define duties of workers and employers, including preventing bullying and harassment. They require employees to report safety incidents and employers to investigate how they can be prevented. While the “Prevention” arm of WorkSafeBC generally does not mediate or resolve disputes directly between employers and employees⁴, a prevention officer has broad powers to enforce the WCA, including powers to investigate, stop work, order changes, and issue penalties.  

The Human Rights Code also requires employers to keep the workplace free from discrimination and harassment. This includes a duty to investigate complaints and respond reasonably to prevent future discrimination.⁵ Unlike WorkSafeBC, the Tribunal is an adversarial system designed to address specific disputes, and it relies on the parties themselves to advance their claims. It’s not until the end of the process (if the parties get there) that policy change can be ordered.   

One might consider a regulatory-type regime for workplace human rights that empowers human rights officers to attend the scene of a complaint, assess the situation, and, if justified, quickly implement orders to minimize harm and ensure compliance with anti-discrimination policies. Such immediate intervention and policy enforcement may well root out the causes of discrimination and spur the parties to resolve the matter then and there.      

Many questions would still need to be addressed. Would this function be most efficiently carried out by the Commission? Or alternatively, by empowering WCB officers to apply the Human Rights Code? The recent Bill 41 is already a step in this direction, giving WorkSafeBC the power to enforce the employer’s duty to accommodate workers returning from a workplace injury.     

Could the adjudicator also order compensation for the worker? Should case officers be applying specialized human rights law on the fly? Would it be fair for the regime’s costs to fall under WorkSafeBC, which is wholly funded by employer premiums?     

While no system is perfect, it is surely worth considering whether there are more effective ways to handle workplace discrimination issues.

1. Human Rights Code, RSBC 1996 c. 210 s. 37(2)
2. BC Office of the Human Rights Commissioner
3. Alan N Young and Kanchan Dhanjal, Victims’ Rights in Canada in the 21st Century, Department of Justice Canada, 2021 CanLIIDocs 13572
4. WorkSafeBC has a separate regime for workers to bring Prohibited Action Complaints against employers
5. Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146 at para. 106.