Written by Eric Epp
Human rights claims in Manitoba have typically taken between three and four years to investigate, followed by another two years for adjudication.[1] In terms of accessing timely resolutions, this is far too long to wait for many matters.
In response to a number of recommendations addressing this issue in Alan Fineblit’s 2018 independent review of the Manitoba Human Rights Commission (MHRC) and Manitoba Human Rights Adjudication Panel, the legislature introduced and passed the Human Rights Code Amendment Act (HRCA) which came into force in November of 2021. This amendment should have a significant impact on shrinking the timeframe that Manitobans will have to wait in order to have resolution on human rights complaints.
According to Fineblit, in the past nearly every complaint was statutorily mandated to be treated in a similar way. Whether complaints were outside the jurisdiction of the Code, deemed frivolous, already being adjudicated elsewhere, or have become moot, they were all offered mediation and then referred to open an investigation, if mediation was unsuccessful.[2] The HRCA responds to the recommendations made in the report by granting a greater ability to dismiss some complaints quickly.
The new legislation gives, what some might call sweeping powers, to the Executive Director. Particularly, the amendments give the Executive Director the ability to dismiss a complaint without investigation, or immediately following investigation, if it: (a) is frivolous; (b) does not contravene the Code; (c) is not within the Code’s jurisdiction; (d) has been appropriately dealt with under another Act; or (e) would not benefit the complainant.[3] There is an appeal review process if a complainant feels their issue has been wrongly dismissed, which will hopefully address any issues arising from these changes.
For the complaints that do merit investigation, the legislation also imposes strict timelines on both commencing adjudication following the appointing of the adjudicator and the releasing the decision, 120 and 60 days respectively.[4]
All participants[5] of a human rights complaint have a vested interest in the process being efficient. As a complainant, there is an emotional toll exacted by waiting sometimes years for a complaint to be investigated due to the backlog of complaints. If the complaint has an alleged financial implication to it, a complainant may be waiting years to know if they will recover monetarily. Conversely, a respondent might be found to owe the complainant a significant monetary amount years later, in addition to the emotional toll from waiting for a decision.[6] This is obviously frustrating.
These new changes, in combination with the Supreme Court of Canada’s decision in Northern Regional Health Authority v. Horrocksputting unionized workplace complaints outside the jurisdiction of the MHRC,[7] have begun to help the backlog of complaints requiring investigation. Although it will take a few years to fully clear the backlog, the MHRC states that they are on track to achieve this goal.[8]
One of the hallmarks of proper access to justice is the ability to have your case heard in a timely and efficient manner, minimizing delay. Not only do these changes provide for a better allocation of resources, (which allows for legitimate cases to have a faster resolution), but even the cases that are dismissed quickly are, at the very least, given a quick decision.
[1] Manitoba, News Release, “Manitoba Proclaims Legislation to Promote Timely Resolution of Human Rights Complaints” (2 November 2021) online: Government of Manitoba <https://news.gov.mb.ca/news/?archive=&item=52703> [https://perma.cc/67S4-ZKDS].
[2] Allan Fineblit, “The Manitoba Human Rights Commission and Human Rights Adjudication Panel Review” (December 2018) at 6-7, online: <https://manitoba.ca/asset_library/en/proactive/2019_2020/mhrc_report_2018.pdf> [https://perma.cc/27BT-V5QM].
[3] Bill 26, The Human Rights Code Amendment Act, 3rd Sess, 42nd Leg, Manitoba, 2020-2021, cls 26(2), 29(1) (assented to 20 May 2021), SM 1987088, c 45.
[4] Ibid at cls 33.1(2) and 41(1).
[5] This paragraph and subsequent are new based on conversation with Karen Sharma.
[6] Conversation with Karen Sharma, Executive Director of The Manitoba Human Rights Commission (1 September 2022), on the changes to the Human Rights Code.
[7] Northern Regional Health Authority v Horrocks, 2021 SCC 42 at para 5
[8] Karen Sharma, supra note 5.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.