Identifying “serious, sometimes fatal, flaws” in Nova Scotia’s human rights regime, a local advocacy group has tabled a scathing report recommending an overhaul of the system.
The group Equity Watch — which works to promote workplaces free of bullying, harassment and discrimination and monitors institutions like the human rights commission — tabled the report during a videoconference on Wednesday.
“In our opinion, the Nova Scotia human rights regime is broken and desperately in need of repair. In essence, we are calling for a move from an isolated, passive, reactive approach to human rights to a more fully engaged, activist and proactive orientation,” the group wrote in the report.
Titled “Justice Impeded: A Critique of the Nova Scotia Human Rights Regime,” it’s a 50-page critique of the Nova Scotia Human Rights Commission, its ad hoc boards of inquiry, the court system that hears appeals, and the provincial Department of Justice — referred to collectively as the human rights regime.
Equity Watch identified 35 issues with the regime, and made 25 recommendations to fix it.
Liane Tessier is a founder of Equity Watch, created in early 2018 after the former Halifax firefighter won her human rights case following a decade of fighting the commission.
“That settlement was the culmination of years of harassment, bullying, discrimination at work and delays and refusals at the Nova Scotia Human Rights Commission,” Tessier said during Wednesday’s videoconference.
Tessier had to take the commission to court to even get a hearing in front of a board of inquiry. And before it got to the board, her employer, Halifax Regional Fire and Emergency, agreed to apologize, pay a settlement and make six promises, including education programming, new policies and programming and data collection.
But despite asking annually, neither the municipality nor the commission has updated Tessier on the progress in implementing those promises. The Halifax Examiner has asked the municipality for an update on that progress. We’ll update this article when we get it.*
Tessier says her case is “symbolic” of the problems with Nova Scotia’s human rights regime.
“It’s a perfect example of what is wrong,” she said.
“It has become clear that the human right regime is failing Nova Scotians in so many ways, and as a result we have prepared this 50-page critique of that regime.”
Connor Smithers-Mapp, a lawyer, human rights advocate and member of Equity Watch, said that due to gate-keeping and delays, people are losing faith in the human rights regime, forcing them to seek redress through the court system instead.
“Nova Scotians are not being well-served by the current regime,” he said.
Smithers-Mapp noted that the average number of annual complaints reaching the last stage in the human rights complaint process — a board of inquiry hearing — is “woefully low.”
According to Equity Watch’s analysis of the commission’s annual reporting between 2014 and 2018, the commission only referred 30 of the total 9,683 complaints made it to a board of inquiry — 0.4%.
“To put it in the obverse, 99.6% of inquiries do NOT lead to a Board of Inquiry,” the group wrote.
Only 445 of those 9,683 complaints — 4.6% — were even “accepted,” meaning the commissions deemed them “worthy of processing.”
Of those 445, 130 (29.2%) were concluded with a settlement.
Those settlements often include non-disclosure agreements forced upon the complainants, Equity Watch wrote, “Thus the crucial element of public education is sabotaged.”
In the rare case they do make it to a board of inquiry, complainants face an uphill battle if they can’t or don’t want to spend thousands hiring a lawyer.
That’s because the quasi-judicial process can get bogged down in legal arguments too difficult for a layperson to navigate. While the commission assigns a lawyer to the cases, they’re there to represent the public generally, not the complainant. And on the other side of the room is the respondent — typically an employer or a government — with their lawyers.
It’s an issue seen most recently at the board of inquiry hearing for Gyasi Symonds, a Black man ticketed after jaywalking across Gottingen Street in 2017. (And it’s one seen at police review board hearings, too.)
Equity Watch’s first recommendation aims to fix a number of these issues, arguing that Nova Scotia should adopt a three-part system of handling human rights, similar to Ontario’s.
Ontario has a human rights commission for research, monitoring and advocacy; a direct-access tribunal to hear complaints; and a “Human Rights Legal Support Centre” to advise and sometimes represent complainants.
“We are impressed by [the] so-called Ontario or tripartite model of human rights bodies and feel that Nova Scotia would be well-advised to follow that reform,” Equity Watch wrote.
Each of the three parts plays its own role in upholding human rights.
The commission proactively conducts research and advocates for human rights. For instance, in an ideal world, the commission would launch reports, like Scot Wortley’s into street checks, proactively, without media prompting.
The permanent tribunal, as opposed to Nova Scotia’s ad hoc boards of inquiry, would allow members to gain expertise in handling cases. And most importantly, it wouldn’t turn anyone away.
“In other words, though forms of mediation are encouraged, no complainant to the Tribunal is denied access to their “day in court” of some sort if that is what they wish. That ‘day in court’ may be as short as a ‘summary hearing’ to decide whether the case merits a full inquiry,” Equity Watch wrote.
“But unlike in Nova Scotia, every complainant who so wishes has a chance to be heard.”
The third part, the legal support centre, would level the playing field for complainants facing high-powered lawyers. It would provide advice on how to craft a complaint before it’s submitted to the tribunal, advice on the hearing itself, and even represent complainants at the hearing.
The implementation of that sort of tripartite model is Equity Watch’s first recommendation of 25.
Among the others:
- All stages of the process at the Tribunal should have clear service delivery standards/time limits, including lengths of investigations
- The three agencies should report directly to the legislature and not to the Minister of Justice
- Increase time limits for complaints to Tribunal to three years
- No imposed non-disclosure agreements
- Publicly available records of Tribunal decisions
Asked whether it’s taken the report and its recommendations to the commission, Equity Watch member Larry Haiven said it hasn’t done so yet.
“We wanted to put the document out there and give them a chance to read it, and we’ll be awaiting their response, which I’m sure they’ll give,” he said.
“My hope is that the report is thorough enough and substantial enough that they really do feel that they have to answer it in full.”
The commission had no comment.
“The Commission is reviewing the report and has no comment or response at this time,” Jeff Overmars, spokesperson for the human rights commission, said in an email.
Read the full report here and a summary of the problems and recommendations here.
*Update, Jan. 7, 2021:
The Examiner asked the municipality to answer the questions posed by Equity Watch in its report, quoted:
The Halifax Fire and Emergency Service and HRM agreed to:
- Ask the Human Rights Commission to schedule a human rights education program. Was this done?
- Produce a policy with respect to handling complaints in the workplace, hiring, and around human rights matters. What has happened regarding this policy?
- Have appropriate members of designated groups on their hiring panels for those candidates who have self-identified as female. What proof does the HRFES have that this was done?
- Provide all hiring panel members with specialized training in proper hiring and interviewing practices. Has this been done?
- Conduct a policy review and update on an annual basis of the Workplace Rights and Harassment Prevention Policy to ensure they have effective policies in place and to review compliance with those policies? What is the progress of this initiative?
- Provide to the Human Rights Commission all of the collected statistical data on the recruitment and hiring process for review and recommendation. When will these data be made available to the public for review?
Halifax Regional Municipality spokesperson Maggie-Jane Spray provided the following response via email, copying the questions, with the municipality’s answers below each:
- Ask the Human Rights Commission to schedule a human rights education program. Was this done?
This is ongoing. HRFE completed training with the Nova Scotia Human Rights Commission (NSHRC) staff in late 2019. Additional training in restorative practices was started with Dalhousie University in February of 2020. Due to the COVID-19 pandemic, not all sessions have been completed. The intention is that this training will resume once restrictions have lifted further. HRFE is in development of a three-part educational program for all staff and volunteers which focuses on gender identity and inclusion in the fire service. Module 1 is underway now, and the remaining modules will be delivered in the first quarter of 2021. Additionally, senior HRFE managers have been enrolled in Cultural Competency Assessments and Training with the Canadian Center for Diversity and Inclusion.
- Produce a policy with respect to handling complaints in the workplace, hiring, and around human rights matters. What has happened regarding this policy?
This is complete. Copies of the Workplace Rights Harassment Prevention Policy, Guidelines for Supporting Transgender & Gender Variant Employees, Hiring Policy, and Workplace Professionalism Guidelines were sent to the NSHRC on February 27, 2018.
- Have appropriate members of designated groups on their hiring panels for those candidates who have self-identified as female. What proof does the HRFES have that this was done?
This is ongoing. HRFE and the Halifax Regional Municipality strive to have members of designated groups on hiring panels, including female panel members. HRFE panels have included non-union female officers from both Fire and Police services. The municipality also has a pool of employees from underrepresented groups who are trained and available to participate on interview panels as needed.
- Provide all hiring panel members with specialized training in proper hiring and interviewing practices. Has this been done?
This is complete. The municipality’s Hiring Manager Certification Training program began in November 2018 and was completed as of April 30, 2019. Training continues to be available for new hiring panel members.
- Conduct a policy review and update on an annual basis of the Workplace Rights and Harassment Prevention Policy to ensure they have effective policies in place and to review compliance with those policies. What is the progress of this initiative?
This is pending. The last revision was effective February 27, 2018 and a review of the policy is currently underway.
- Provide to the Human Rights Commission all the collected statistical data on the recruitment and hiring process for review and recommendation. When will these data be made available to the public for review?
This is complete. The 2016 Career Firefighter Recruitment Statistics were provided to the NSHRC in November 2018, and the 2018 Career Firefighter Recruitment Statistics were provided March 6, 2019. These statistics aren’t available online, but I can request these to be provided to you. This may take some additional time.
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