History of the Canadian Human Rights Tribunal
Original version of the Canadian Human Rights Act
The original version of the Canadian Human Rights Act (CHRA) passed in 1977 somewhat resembles the legislation of today, to the extent that it defined certain discriminatory practices, established the Canadian Human Rights Commission (Commission), and prescribed a complaint processing and investigation scheme. However, under the 1977 legislation, adjudication of complaints was carried out by ad hoc tribunals that were appointed by the Commission and constituted for the sole purposes of inquiring into a given complaint. Tribunal members were chosen from a pre-existing Panel of part-time adjudicators. This scheme attracted judicial criticism because: (1) a tribunal could not be appointed unless the Commission had first substantiated the complaint, and; (2) the Commission both selected the members of a tribunal and then prosecuted the complaint before that tribunal. These features of the legislation were held to give rise to a reasonable apprehension of bias.
Creation of the Human Rights Tribunal Panel
In 1985, the Human Rights Tribunal Panel was created, headed by a President, which provided for a greater degree of independence from the Commission. The President now appointed the tribunals, and complaints were no longer substantiated by the Commission. However, financial and administrative links remained. To address continuing concerns about impartiality, the corporate and registry operations of the Human Rights Tribunal Panel became progressively more independent from the Commission, with the Human Rights Tribunal Panel ultimately being designated as a separate government institution under the Financial Administration Act (FAA). That said, the CHRA still provided that the rate of remuneration of tribunal members was to be fixed by a by-law of the Commission. Moreover, where a Tribunal Panel member’s term expired prior to the completion of an inquiry, a request had to be made through the Minister of Justice for an extension from the Governor in Council. These aspects of the scheme were also found to raise a reasonable apprehension of bias.
Amendments to the Canadian Human Rights Act
Amendments to the CHRA proclaimed on June 30, 1998 further formalized the independence of the adjudicative function. These amendments established the Canadian Human Rights Tribunal ("CHRT") in its current form, as a permanent standing body, with a full-time Chairperson and Vice-chairperson, and a smaller complement of up to 13 full-time and part-time members. The Chairperson was designated as a deputy head under the FAA, and the CHRT organization, along with its staff, was constituted as a separate portion of the federal public service. Notably, under the 1998 legislation, the Governor in Council fixed the remuneration of Members, and a Member whose appointment expired could, with the approval of the Chairperson, conclude any inquiry that the member had begun.
Coming into force of the ATSSCA
On November 1, 2014, through the coming into force of the Administrative Tribunals Support Service of Canada Act (ATSSCA) , the Government of Canada consolidated the provision of support services to eleven administrative tribunals - including the CHRT - into a single organization, the Administrative Tribunals Support Service of Canada (ATSSC). The CHRT ceased to exist as a public service organization, but continued as an adjudicative body. All staff formerly employed by the CHRT became employees of the ATSSC, and either continued to serve the CHRT directly through the CHRT Secretariat, or commenced serving all eleven tribunals as part of the ATSSC corporate services team. That said, the adjudicative role and authority of the CHRT Members remain unchanged: Through the pooling of support services, the establishment of ATSSC strengthens the independence of the CHRT, without affecting the mandate of the CHRT. Proceedings continue to be initiated, managed, heard and decided in accordance with the CHRA and existing CHRT procedures.
The CHRT remains a quasi-judicial body with a statutory mandate to apply and interpret the CHRA. Under this legislation, the CHRT shall fairly and expeditiously inquire into complaints of discrimination that have been referred by the Commission. If, at the conclusion of the inquiry, the CHRT Member presiding over the case finds that the complaint is substantiated, that Member may make an order against the person found to have engaged in a discriminatory practice.