Bill 160, An Act to amend the Saskachewan Human Rights Code

 

One of the key issues we are dealing with right now is Bill 160.  The Bill proposes doing away with human rights tribunals in favor of referring directly to courts, although SHRC would continue to have a "gate-keeping" function about what gets referred.  The Bill also proposes that much more use of "mediation" to settle complaints.  Since disability related complains represent about half of all complaints handled by SHRC this is a critical issue for people with disabilities. 

There seems to be a general concensu that there are real problems with the current system although there may be disagrement about why (i.e. budget or adminstration etc.).  However, concerns exist that the changes propossed in the Bill will bring about improvements?  IDEA would like to see a real debate about Bill 160 and a discussion about how the Bill might be improved and individuals rights and dignity protected.  We are currently trying to organize a forum for Febuary to debate Bill 160.

The following are articles and papers that relate to this topic:

•  Saskatchewan Marches to a Different, Distant Drummer - Professor Ken Norman from the U of S is a former Chief Commissioner of SHRC

• Human rights: we can be a leader - By David Arnot, Special to The Leader-Post December 16, 2010

• Access to Justice, Mediation: Panacea or Pariah?

  The Honourable Warren K. Winkler Chief Justice of Ontario

• From the Manitoba Human Rights Commission

  COMPLAINT PROCESS

• Under Cover Lawyer

• SASKATCHEWAN HUMAN RIGHTS CODE

  B I L L - No. 160

December 11, 2010 Regina Leader Post

                             Saskatchewan Marches to a Different, Distant Drummer

             Every jurisdiction in Canada has human rights tribunals, with accessible informal hearing procedures, to adjudicate discrimination complaints at first instance.   This is in keeping with the informal adjudicatory justice systems in place across Canada for all sorts of protective regulatory statutes. A few months ago the Supreme Court of Canada expressed confidence in all such adjudicatory bodies by giving them full jurisdiction under the Charter of Rights unless their governing statutes explicitly said otherwise.  Quebec experimented with and then abandoned the notion that the courts were a more appropriate forum for human rights inquiries.  In the name of access to justice, some jurisdictions have allowed direct access to human rights tribunals; eliminating the ‘gate keeper’ function of the human rights commission in determining which complaints “merit” a hearing.  However, Saskatchewan is not attuned to any aspect of this state of administrative affairs; a different and distant drummer appeals to its ear.  On November 29, 2010, Justice Minister Don Morgan introduced Bill 160, An Act to amend The Saskatchewan Human Rights Code and to make consequential amendments to The Labour Standards Act.

            Bill 160 scraps the Human Rights Tribunal along with its informal rules of evidence in favour of the Court of Queen’s Bench governed by The Queen’s Bench Rules of Court.   To be clear, lawyers and no one else gets to play in this court and under these voluminous rules.  Bill 160 leaves a little bit of discretionary space for a party to appear before the court “with the assistance of a third party other than counsel … if the court considers it appropriate in the circumstances and subject to any conditions that the court considers necessary”.  Just how much more accessible this discretionary exception may make the high court remains to be seen.  Hearings will be held only at judicial centres; whereas the Human Rights Tribunals travelled to where the complaint arose; however remote the location.  And, not only is the gate-keeping function retained, two extra new grounds for dismissal of a complaint are given to the Chief Commissioner of the Saskatchewan Human Rights Commission.   And, for good measure, such a dismissal decision is to be absolutely final; unlike the status quo where a dismissal decision is subject to review by the Human Rights Tribunal.

            Bill 160 invites an ironic reading as it also makes consequential amendments to The Labour Standards Act which do march to the common Canadian drummer of establishing informal administrative adjudicatory mechanisms for the hearing of complaints under regulatory legislation.   This begs the question why the different and distant drummer for human rights complaints?  A report entitled Workplace Dispute Resolution Project, published November 2, 2010, by the British Columbia Law Institute, notes - in response to the notion that the B.C. human rights tribunal ought to be scrapped in favour of an omnibus workplace tribunal - that such a drastic step ought to be undertaken only after the publication of a study paper and a full consultation process.  By the way, none of the last five full external reviews of human rights processes in Canada have seen any merit in abandoning human rights tribunal systems in favour of high courts!

          

                                                                                      Ken Norman

Professor Norman from the U of S is a former Chief Commissioner of SHRC

          

Human rights: we can be a leader

 

 

By David Arnot, Special to The Leader-Post December 16, 2010

 

 

Professors Ken Norman and John Whyte have taken note of the legislative changes now before our legislature on the role and function of Saskatchewan's Human Rights Tribunal in their Dec. 11 commentary.

They are not alone. Many human rights commissions across Canada are watching our progress very carefully. They, too, are facing challenges with the complex nature and volume of cases before them, and concerned about the amount of time it takes for complainants to have their issues addressed. The innovative changes we have proposed will give us better tools to best serve the people of Saskatchewan. And, when these changes are adopted, Saskatchewan will be a Canadian leader and model of 21st century best practices.

Professors Norman and Whyte are in error when they state the changes we have proposed will strip the Saskatchewan Human Rights Commission's ability to initiate a complaint on behalf of a class of persons experiencing discrimination. An important component of the commission's work is -- and will continue to be -- systemic advocacy. We will retain that power and ability to act on behalf of groups of persons after our reforms have been adopted.

Norman and Whyte raise other issues that require clarification, if not correction.

We have asked for legislative changes to support the "Four Pillars" of a renewed mandate for the commission.

First, we want to be efficient and effective in investigation, prosecution, and gate keeping for complaints of discrimination.

Second, we want to see an increased focus on early resolution using mediation, collaboration, and other forms of alternative dispute resolution. That means being prompt and more responsive to the people who need our help.

Third, we want to pursue increased systemic advocacy for issues that effect multiple persons or groups.

Fourth, we want to develop a pre-kindergarten to Grade 12 program that teaches citizenship rights, responsibilities and respect in all Saskatchewan schools.

As part of this package of reforms, we are requesting the role and function of the Human Rights Tribunal be shifted to the Court of Queen's Bench. We believe that judges are imminently qualified to hear such cases. These cases are too important to be relegated to administrative adjudicatory bodies overseen by lawyers acting as part-time quasi judges. Human rights cases shape the way we interpret our rights as Canadian citizens. These cases should be heard by full-time judges whose neutrality and fairness is guaranteed by their judicial independence.

We are placing the emphasis on case resolution through restorative justice and away from the punitive approach of retributive justice. We expect to resolve the majority of complaints by alternate dispute resolution, resorting to prosecution only when necessary.

We want to explore and incorporate a best practice from Manitoba called Directed Mediation. It is hard to argue with its success. They settle 98 per cent of their complaints by resolution and settlement without litigation, prosecution and tribunals. In the last two years they have conducted only three prosecutions. This should be comforting to those who are concerned about having discrimination claims sent to the Court of Queen's Bench for a decision. In the vast majority of cases, we will resolve the issue long before an appearance before any judge will be required.

If prosecution is required, we will continue to provide a lawyer at no cost to the complainant at every step in the litigation process, up to and including hearings at the Supreme Court of Canada.

And, in keeping with current practice, the court will adopt a more informal hearing process if appropriate to the circumstances. Child Protection cases are good examples of situations where the court has been known to relax its rules of procedure and adopt a more informal hearing process to meet the needs of the parties involved.

Created in 2001, the Human Rights Tribunal has served its mandate, but it has not been without problems. Prompt access to justice was one of the reasons the tribunal model was developed. However, an ongoing challenge has been the amount of time the tribunal takes to hear cases, deliberate, and render a decision after a hearing.

The process should serve the people, not the other way around. Under the current tribunal model, investigation takes approximately 15 months, with an additional 21 months before first adjudication, averaging approximately three years. By any reasonable measure, these delays are excessive and unacceptable given that such cases are inherently stressful for both complainants and respondents. Justice delayed is justice denied. Myopically clinging to a demonstrably broken process does not serve the people well.

The Ombudsman of Saskatchewan, an independent officer of the legislature, in a report dated December 2007 admonished provincial tribunals (including the Human Rights Tribunal) for not providing their decisions in a timely fashion. The innovative changes now before the legislature will significantly increase the credibility of the litigation process, reduce the time required to render decisions, and provide an effective, fair and reasoned result.

We have met with more than 50 stakeholder groups to discuss the changes we have proposed to the Human Rights Code. They overwhelmingly embrace alternative dispute resolution over prosecution and litigation. Moreover, they have affirmed the need for change.

While there are various legal and technical dimensions to the changes we have proposed, most important is the human impact. The Saskatchewan Human Rights Commission has proposed these improvements through the lens of the people we represent -- those who are often voiceless, vulnerable, and marginalized in our community.

Citizens want to be heard, and have their issues resolved, in a timely and respectful fashion. Their needs -- and their needs alone -- should be uppermost in our minds as we modernize the system for the people of Saskatchewan.

Others are indeed watching, and eagerly awaiting, our next steps. Instead of marching to the beat of other jurisdictions, or remaining stuck in the past, Saskatchewan has an opportunity to lead. Together, we can set a new standard for timely decision-making and citizen service, and become a best practice leader in human rights promotion and dispute resolution.

Saskatchewan citizens deserve nothing less.

- Arnot is chief commissioner of the Saskatchewan Human Rights Commission.

 

 

Access to Justice, Mediation: Panacea or Pariah?

The Honourable Warren K. Winkler Chief Justice of Ontario

INTRODUCTION

As we embark upon the twenty-first century, access to justice is the pre-eminent issue for civil justice reform. But the issue is by no means new. Access to justice for the forgotten middle-class first emerged as a concern in the mid 1970’s. In response, a number of initiatives followed, including the concept of pre-paid legal insurance, which then became a project for the Canadian Bar Association, and also led to the creation of a program at the University of Windsor’s Faculty of Law. Although some of this early impetus for change has waned in the course of thirty years, the problem of providing affordable civil justice for middle-income earners has persisted and perhaps even worsened.

In a recent article entitled “Access to Justice – A Basic Right,” the Toronto Star reported that the cost of taking a routine civil case through to a three-day trial in Ontario is about $60,000.00, more than the average Canadian family earns in a year. Meanwhile, as access to justice has now become a concern of major proportion, mediation has emerged as a possible partial solution to what many have come to believe is an insoluble problem.

Not everyone, of course, is sanguine about mediation’s potential to alleviate the barriers to speedy, affordable justice. Opponents argue that mediation is “soft justice,” nothing more than an additional layer of costs in the litigation stream and a process fundamentally at odds with the role of the court as decision maker. They add that judges are not equipped for, and are not comfortable with, the unstructured nature of mediation.

Proponents, on the other hand, say that mediation can be an integral part of our civil justice system, providing a timely solution for disputes and thus minimizing costs to litigants. They argue that outside mediators are the only expandable resource for an already financially strained court system, and that we should capitalize on this valuable resource, not reject it. Moreover, they point out that mediation has succeeded in ameliorating systemic problems in the civil justice system in the Toronto Region of the Superior Court of Justice. On balance, my experience has been that the benefits of mediation outweigh the detriments, and that mediation can be most useful in mitigating the depth and severity of the problem of access to justice.

THE TIDE TOWARD MEDIATION

This seems to be the prevailing view today. Indeed, mediation is the “flavour of the month” in civil justice circles, both inside and outside Canada, thus, for example, the Law Society of Upper Canada requires lawyers in Ontario to advise clients of the availability of mediation. And, virtually everywhere, law school curricula include courses in mediation to which students flock in great numbers.

If the movement toward mediation is now so strong as to constitute a tide, then even the most senior and prominent and skeptical of counsel appear willing to be carried along in it. Even amongst those who once looked upon the process with disdain, mediation is now regarded as a generic solution to adversarial conflict. More and more, continuing legal education programs focus upon mediation advocacy training. Many retired judges have prolonged their careers in the law by becoming experts in mediation and other forms of ADR. One is pressed to point to any other single change or development that has had such a marked impact on the civil justice system in the common law world.

Outside the legal profession, for example, in the commercial world, many large multi-national corporations now mandate as policy that mediation be explored before embarking any lengthy, costly litigation is undertaken. Inside the profession of law, in fields other than general civil and commercial litigation, lawyers specializing in labour, family, and insurance law long ago sought out ways, other than through the traditional court system, to provide access to justice for their clients at more reasonable costs. Practitioners in those areas have used mediation to their advantage for years and many of the most successful mediators can trace their origins to those fields of practice.

THE POPULARITY OF ADR

The popularity of ADR has at its base the escalation in legal costs. Law firms have replaced “value-based” billing with an approach most accurately described as “hourly-rate-multiplied-by-docketed-time.” The result has been to cause clients to search for more cost-effective ways of settling their disputes. And in large measure ADR has provided the alternative clients were looking for. Lawyers have thus adjusted their training and expertise to accommodate their clients’ needs and to enable them to fit into the changing dynamic that ADR encompasses.

The advantages do not end with costs savings. Most rational litigants would prefer a settlement that they have played a role in fashioning. Through mediation, the risk and uncertainty that attaches to a courtroom setting in which a decision is imposed by a randomly selected judge is replaced with a resolution crafted by the parties themselves with the assistance of a mediator the litigants themselves have chosen. Moreover, a mediated resolution can encompass the entire dispute between the parties, not just a narrow issue that is before a court. In addition, a mediated resolution is all the more valuable and meaningful in disputes where the relationship between the parties is longstanding and ongoing. Further, mediation ensures a private and confidential process, of importance in sensitive cases. Last, but not least, a party can always pull back from mediation; if the mediation process fails, the parties are not foreclosed from continuing on to trial or from trying to settle the case later at a more opportune time. Ultimately, if the mediation succeeds, the result for the parties inevitably is considerable savings in time and money.

Given all its potential advantages, ADR has naturally grown in popularity and is now an integral part of the litigation process. In the current climate, when the cost of litigation continues to be so prohibitive for so many, responsible lawyers will advise clients enmeshed in lawsuits to at least consider mediation as an option, whether or not the Law Society mandates that this be done.

THE CHOICE TO MEDIATE

This is not to suggest that mediation will or ought to be the whole or even the centre of our civil justice system. It can only be part of the matrix. For one thing, not every type of case is amenable to mediation. Even in those cases ripe for mediation, the terms of any negotiated settlement will be dictated, or at least significantly influenced, by a party’s knowledge of what the “non-mediated” result might look like. Obviously, a party with a strong case on the merits can expect to negotiate a more favourable result than a party with a weak case, which is as it should be.

Quite apart from the merits of a party's case, the “non-mediated” alternative which will drive settlement discussions also refers to process. Parties, particularly vulnerable parties, will approach the ADR process very differently, depending on whether or not a trial is affordable and available without unreasonable delay. Even in cases where there is an imbalance of power between the parties, mediation may still prove to be at once a suitable and useful device.

The risk in any mediation, however, is that the negotiations which take place during the process, and the terms of any settlement, will become badly lopsided if the court, the legal profession, and the government do not redouble their efforts to tackle the costs and delays which continue to plague the civil and family justice systems. Nothing focuses minds better at mediation than the prospect of an early trial date. The greatest service that trial courts can provide to assist parties in mediating their disputes is to ensure: first, that judges are available to try the case if the mediation fails; and second, that trials are conducted in a way that makes them as affordable as possible. No party should be forced to take an unfair settlement at mediation simply because the opponent will be able to grind him, her or it down and drag the case out.

WHAT MEDIATION MEANS AND WHEN IT MAY NOT WORK

Mediation means different things to different people. To some, it conveys the notion of a facilitative role by a specialist in the area of the dispute. To others, it refers to a third party neutral evaluation so that the litigants can assess their respective positions more accurately and come to a solution themselves. Most often, mediation connotes a combination of these attributes. Mediators almost always have a style of their own that is at once facilitative, evaluative, and persuasive. Parties choose a mediator based on their knowledge of his or her style and area of expertise, preferring those who best accord with their perception of what best suits the nature of the dispute and the personalities involved. Central to mediation’s success and popularity is the parties’ initial willingness to agree upon the mediator.

As with almost everything that is the subject of recent conversion, the question arises, “Does it have general application?” In the civil litigation context, is mediation something that ought to be pursued in every case, regardless of the circumstances?

The answer that I propose to these questions begins with the following proposition: for every general rule, there is a corresponding general exception. My experience suggests that certain types or categories of dispute do not lend themselves well to mediated resolution. One such category, for instance, would include those disputes involving apparently well-founded allegations of illegality or impropriety. Cases based on allegations of fraudulent conduct or illegal behaviour are not conducive to mediation because the polarized positions that characterize these disputes inhibit discussion. Moreover, they often place the mediator in an impossible ethical position.

Another category of cases inappropriate for mediation are those in which, for whatever reason, the parties are not fully informed of the issues. In some of these cases the disclosure process is incomplete, for example, where the decision maker in a large organization has not received candid advice from subordinates or underlings. Counsel who settle cases without all the accurate facts leave themselves open to suits for negligence. It is rare for settlement to occur where the parties cannot properly assess the strengths and weaknesses of their case and that of their opponent. Cases where the damages have not yet crystallized, such as personal injuries, are ill suited for mediation, because any settlement is bound to be premature or uninformed.

Similarly, mediation is not suited to a case where at least one of the parties has a strong aversion to the process. However, parties who are merely indifferent to or not especially keen about mediation still frequently benefit from the process and many cases settle even in these circumstances. But where the aversion to mediation is particularly strong, then the process will likely fail.

The converse is also true. Any case in which a party is motivated to engage in mediation, but only for improper tactical reasons, is not one appropriate for mediation. There are many examples. A party may want mediation, not with a view to settlement, but to carry out an illicit discovery; to test the opponent's resolve; to tease out disclosure of an improvident settlement position to later advantage; to intimidate the opponent into abandoning the case; or to further some other improper purpose, such as to disclose publicly that mediation is ongoing. In every one of these scenarios, the mediator runs the risk of becoming a foil for the wrongdoer. To be sure, such cases are not always easily identified. Often it is only after the mediation has begun that the abuse of process becomes obvious. Once apparent, however, the process should be halted as quickly and as discretely as possible.

Some mediators believe that if any party to a dispute is self-represented mediation should not be undertaken. The belief is that in this situation the unrepresented party is at a disadvantage and will seek to rely on the mediator for advice either expressly or implicitly, thus placing the mediator in an untenable position.

Finally, in certain cases the parties simply want a judicial determination of their rights, win or lose, not a mediated resolution. In that event, they are entitled to a trial and ought not to feel pressured in a settlement meeting to accept a compromise they are not interested in. ADR is not meant to subvert the conventional litigation process. Parties are entitled to have their rights decided in a court with appropriate procedural safeguards. In particular, there is a view that certain types of cases involving public issues, for example pay equity claims, should be litigated to a judicial determination in order to have precedential value to society at large.

CASES THAT SHOULD BE MEDIATED

The corollary to the general rule that some types of cases ought not to be mediated is that other types should always be mediated. These include wrongful dismissal cases, family law matters, and any dispute in which there exists an imbalance in terms of financial resources or the ability to withstand delay, either occasional or deliberate on the part of the opponent. All these cases, in my opinion, must be mediated at as early a stage in the proceeding as is likely to be fruitful.

Disputes in which there is an overwhelming public interest in prompt resolution ought to be mediated in every instance. The Air Canada restructuring is an example. There, the future of a Canadian institution employing nearly forty thousand people nationwide could not be left to the vagaries of a conventional adversarial process. The dispute between Ontario Hydro and the Power Workers’ Union is another example: the case required mediation, because at stake was hydro-electric power service to the citizens of Ontario and the continental power grid. The Walkerton water disaster is yet another instance in which the mediation process was called for: the mediation led to a settlement, and avoided years of costly litigation and all the inevitable consequential delays in delivering benefits to victims.

Cases where there is “no litigation option” comprise another group of matters to be mediated in every instance. I use the term “no litigation option” to describe cases in which the parties cannot litigate in a public forum because a public display of the dispute would bring in a collateral player, a government or an outside party or group, to the disadvantage of both parties. A dysfunctional publicly funded charity, for example, does not want to air its dirty laundry publicly, lest all sides to the dispute end up soiled. The parties to the dispute must resolve their problem, but they do not, as an alternative, have access to the public forum of the courts to do so because of the politics of and risks inherent to the situation.

As a general rule, claims where the monetary and non-monetary costs of litigation are disproportionately high in comparison to the issues in dispute should always, it seems to me, be mediated. The economies resulting from a successful mediation are essential in these types of cases. When mediation is not sought or provided in these cases, the costs incurred in them will simply continue to build and ultimately render them unsettleable.

Class proceedings are also among those cases which, because the return to the class members may be small in comparison to the amount of their claim, ought to be mediated prior to the common issues trial. If the mediation leads to settlement, the inclusion of a claims procedure in the settlement agreement can greatly simplify the processing of individual claims. Mediation greatly increases the chance of addressing these issues constructively.

MEDIATION IN PRACTICE

I have generally categorized the types of cases set out above as those which should never and those which should always be mediated. But I wish to qualify these bold, broad assertions by reiterating my overall shaping proposition: for every general rule, there is a general exception. Most experienced mediators have successfully mediated disputes of the type that I designate as those that should never be mediated and likewise failed in cases that should always be mediated. For example, the YBM Magnex stock fraud case was successfully resolved through mediation. In the circumstances, the best advice perhaps is to be guarded and cautious in attempting to mediate cases in the “never” category and not overly confident in undertaking cases in the “always” category. It is good to remember too, that the preponderance of cases do not fall neatly within either of the extremes. All these cases, constituting a clear majority of the whole, should be mediated as a part of any modern civil justice system that holds as its central tenets the goals of access to justice, proportionality, and judicial economy.

As a matter of public policy, mediation as part of our civil justice system is here to stay. On balance, it tends to promote and enhance access to justice, because it enables parties to resolve their disputes as cheaply and as quickly as possible. Mediation is not a cure-all. But many cases that would otherwise drag on interminably at considerable cost and anxiety to the parties can be resolved through the efforts of skilled mediators. Given the chances for success, the use of mediation is justified in virtually all cases in the civil justice system.

An illustrative implementation of mediation at the trial level is the 2004 Toronto Practice Direction. The early mandatory mediation aspect of universal case management in the Toronto Region of the Superior Court of Justice prior to the Practice Direction suffered from the fact that it was “too early” to enable the parties to be adequately prepared to settle advisedly. The Practice Direction, later to become Rule 78 of the Rules of Civil Procedure, sought to cure the problem by altering the timing of mandatory mediation so that it occurred at a time the parties chose but before they could obtain a trial date. Thus, rather than eliminate mandatory mediation altogether, mediation now became a centerpiece of the pre-trial process.

In recognition of the truism that mediation is all about “timing, timing and timing,” the adjustment so that mediation takes place when it is most likely to succeed has meant that the success rate of mediation has skyrocketed. Since the timelines for mediation have been extended, the success rate for mandatory mediations has almost doubled. Moreover, the scope of mandatory mediation has been expanded to encompass simplified procedure cases. Given that the simplified procedure process was initially intended to promote affordable, accessible, and timely justice for smaller claims, it was surprising to some that mandatory mediation was not included within the former simplified procedure rules. Since mediation was extended to simplified procedure cases, the number of pre-trials in simplified procedure cases has been reduced to about one-third, signifying that the cases are settling at the mandatory mediation stage. Even in those cases where mandatory mediation is unsuccessful, mediation acts as a useful prelude for subsequent mediation at the pre-trial stage, enhancing the prospect of success there.

The civil justice system in Toronto Region has a further added mediation element, known colloquially as “designated hitter” mediation, a process conducted just prior to trial by handpicked judicial mediators with expertise in the field. The overall result, therefore, is a three-pronged or three-stage mediation system: mandatory mediation conducted by outside court mediators, pre-trial conferences, and designated hitter mediation. And the system is working; the number of civil cases going to trial in Toronto has been dramatically reduced dramatically, with attendant cost savings to the parties and to the court system.

At the appellate level, the Court of Appeal for Quebec has introduced mediation as an alternative under the conciliation service program. Participation is on a consent basis, with settlements requiring the Court’s approval. The success rate is in the area of eighty percent. In Ontario, a designated panel of judges at the Court of Appeal have adopted pre-hearing mediation for certain family law cases, for example, where the facts have changed since the lower court decision. In these cases, this has resulted in significant cost saving for the litigants and a reduction of the emotional trauma. On a very limited basis, the Court of Appeal for Ontario has also experimented with mediation in certain civil cases with some success. While some are of the view that mediation at the appellate level cannot succeed because one party has a judgment in hand in its favour, there are many disputes where the issue in litigation is much more narrowly defined than the actual matter in dispute. Therefore, a judicial determination cannot provide a global solution. Appellate mediation is able to address this situation. The success of the Quebec and Ontario initiatives speak for themselves; they are other examples of mediation’s capacity to enhance access to justice on the global scale as well as in individual cases.

LIMITATIONS OF MEDIATION

Still, as its detractors point out, mediation is a step added to a civil proceeding and every step along the way drives up the costs of the litigation. There is truth to this assertion in cases where mediation is undertaken for improper strategic purposes, rather than with the intention of entering into good faith bargaining, let alone settlement. Resources that could have been used to move a case closer to trial are wasted if the parties are forced to participate in a mediation where one or both sides has no intention of settling. This works to the obvious disadvantage of poorer litigants. Added steps in the process that are not productive proportionately to the added costs should be avoided.

Some of the criticism of mediation is answered by allowing the parties, as in the Toronto Region of the Superior Court of Justice, to determine the point in the process when they feel mediation is most likely to be successful. The party who is more obviously anxious to settle (typically the plaintiff) must be allowed to deploy his or her resources in a way that levels the playing field and motivates the reluctant party (normally the defendant) to bargain in good faith. Subject to this, one must conclude that although mediation will not be successful in every case, the number of cases in which it is successful greatly outweigh those when it fails, thus justifying its universal imposition. As for those cases where it is not appropriate, as a general rule, there must be adjustments to take those into account. This can be achieved on a case-by-case basis.

JUDICIAL MEDIATION

Mediation by members of the judiciary poses problems of a unique nature. Judicial mediation first surfaced in the form of pre-trial conferences, although the term “mediation” was not used to describe this process. The usual practice was for the judge to provide a neutral evaluation of the case which the parties would then utilize in settling the case between themselves. Since its inception in the form of pre-trials, judicial mediation has expanded to encompass facilitative mediation beyond mere pre-trials and the term mediation has come to apply to judicial intervention. As this metamorphosis unfolded in the judicial landscape, some judges expressed a level of discomfort in acting in this capacity. These judges, who see their role as solely deciding cases in the courtroom, are by their own admission, less skilled than others in performing the role of mediator.

As judges have become more facilitative in their approach to mediating cases within the court system, other concerns have surfaced. Should judges caucus with the parties separately? How interventionist should judges be? Even though the judge acting as mediator will not decide the case if it goes further, is mediation consistent with the role of the judge as a decision maker? How forceful should judges as mediators be in urging a settlement, given that the office of a judge may create unintended pressures on the parties to accept a solution with which they would not otherwise agree? These are only some of the questions that must be asked and answered. Many judges are still struggling to find the proper balance when performing the role of judicial mediator.

CONCLUSION

Access to justice, as a fundamental principle of the civil justice system, dictates that problems of cost, delay, judicial economy and proportionality must become more prominent in our approach to delivery of legal services in our free and democratic society. If litigants of modest means cannot afford to seek their remedies in the traditional court system, they will be forced to find other means to obtain relief. Some may simply give up out of frustration. Should this come to pass, the civil justice system as we know it will become irrelevant for the majority of the population. A legal system accessible only to the very poor and the very well to do presages its own demise. Our courts and the legal profession must adapt to the changing needs of the society that we serve. Mediation affords many parties an opportunity to access the civil justice system quickly and at relatively low cost.

The modest purpose of this paper is to inspire discussion, and to serve as a reminder that access to justice poses problems still to be overcome. It is not intended to dictate any categorical solutions, nor present mediation as the definitive solution. Mediation is not a panacea for the ills of the civil justice system, but it is a step along the path. Implemented wisely, evaluated realistically, and measured against pragmatic expectations, it holds the promise of immense dividends for our citizens and for our civil justice system.

I would like to acknowledge the editing assistance of Yan Kiu Chan, law clerk at the Court of Appeal for Ontario.

Published in 2007 Canadian Arbitration and Mediation Journal 16 (1):5-9. Also, available in french as 2007 Accès à la justice — la médiation judiciaire: panacée ou paria? Canadian Arbitration and Mediation Journal 16 (1):9-12

From the Manitoba Human Rights Commission

COMPLAINT PROCESS

-OVERVIEW

Pre-Complaint Resolution Process

This is a voluntary, without prejudice process whereby the Commission

mediators attempt to resolve an issue between a complainant and a

respondent prior to the fi ling of a formal complaint of discrimination under

The Code. In 2007, 52 were resolved successfully in the pre-complaint process.

Mediation

The Commission encourages parties to attempt to resolve a complaint if

they wish to do so, at any stage of the process, whether prior to or during an

investigation. In 2007, 205 fi les were assigned to the three staff mediators at

the pre- and mid-investigation stages. Fifty four (54) complaints were resolved

successfully in 2007 at these two stages of the process (36 in pre-investigation

and 18 at mid-investigation).

Investigation

Each complaint that is not resolved in the mediation process is assigned to

the investigation team that collects, interviews and analyzes evidence. Upon

completion of the investigation, a comprehensive Investigation Assessment

Report is prepared, making a recommendation to the Board of Commissioners

for determination pursuant to The Code. In 2007, the investigation team was

assigned 225 formal complaints to investigate and the team completed

Investigation Assessment Reports on 199 complaints, some of which were fi led

prior to 2007. During 2007 the average length of an investigation, including

the written report was 10. 28 months. In addition to the investigation reports,

the team prepared 48 reports with respect to complaints that were either

withdrawn or abandoned.

Board Directed Mediation

Pursuant to s. 29 (2) of The Code, the Board of Commissioners may cause

mediation to be undertaken between the parties where the evidence obtained

during the investigation is suffi cient to substantiate a contravention of The Code.

In 2007, 25 fi les were referred to directed mediation. In 2007, 16 cases were

voluntarily resolved at this stage and in four other cases, the Board determined

that the offer made by the respondent in the mediation process was reasonable,

however, the complainant rejected the offer and the fi le was closed.

Adjudications

Pursuant to s. 29 (3) of The Code, the Board of Commissions can refer

complaints to adjudication, either directly or after board directed mediation

is not successful. In 2007, three fi les were referred to adjudication and one

adjudication hearing was completed. In addition, 11 fi les which were referred

to adjudication were resolved by legal counsel in advance of the hearing

scheduled to take place in 2007.

 

 

Under Cover Lawyer

http://www.undercoverlawyer.com/forum/topic.php?id=757

Howdy gang,

I just got home from my EEOC Mediation. I signed a confidentiality agreement so I don't think I can discuss online what happened, but I think everyone knows how I feel.

I feel like I must have the word idiot tatooed across my forehead and only my ex-employer and the EEOC mediator can see it. I am truly astounded that these are the people we are entrusting to uphold the laws we pass, government agencies and employers. That is why these laws were enacted, right? To keep employers from abusing their workers? Unbelievable.

Hang in there.

SASKATCHEWAN HUMAN RIGHTS CODE

1

B I L L

No. 160

An Act to amend The Saskatchewan Human Rights Code and to make

consequential amendments to The Labour Standards Act

(Assented to )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Saskatchewan, enacts as follows:

Short title

1 This Act may be cited as The Saskatchewan Human Rights Code Amendment

Act, 2010.

S.S. 1979, c.S-24.1 amended

2 The Saskatchewan Human Rights Code is amended in the manner set forth in

this Act.

Section 2 amended

3 The following clause is added after clause 2(1)(c):

“(c.1) ‘court’ means the Court of Queen’s Bench”.

Section 23 amended

4 Subsection 23(3) is repealed and the following substituted:

“(3) The commission may pay any witness fees and allowances that may be

provided for pursuant to The Queen’s Bench Act, 1998”.

Section 25 amended

5 Section 25 is amended by adding the following after clause (g):

“(h) promote and pursue measures to prevent and address systemic patterns of discrimination; and

“(i) promote and pursue alternative dispute resolution methods in

resolving complaints”.

New sections 25.1 and 25.2

6 The following sections are added after section 25:

“Financial requirements

25.1 The commission:

(a) shall prepare and submit annually to the minister, in any form that the

minister may require, an estimate of its financial requirements for the

following fiscal year; and

(b) may, to the extent that funds are provided to the commission, dedicate

the resources of the commission in the way the commission considers

necessary and advisable to carry out the purposes of this Act.

SASKATCHEWAN HUMAN RIGHTS CODE

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“Provision of services

25.2 To carry out the purposes of this Act, the minister may provide services to

the commission”.

New section 26.1

7 The following section is added after section 26:

“Delegation of powers

26.1(1) The Chief Commissioner may, in writing, delegate to a member or any

employee of the commission any of his or her powers pursuant to this Act other

than the power of delegation pursuant to this section.

(2) A delegation may be made to:

(a) a specified member or employee or class of employees of the

commission; or

(b) the holder of a specified office for as long as he or she holds that office.

(3) Every delegation is revocable at will, and no delegation prevents the

exercise of any power by the Chief Commissioner.

(4) A delegation may be made subject to any restrictions and conditions that the

Chief Commissioner considers appropriate and may be made either generally or

in relation to a particular case or matter or class of cases or matters.

(5) Until a delegation is revoked, it continues in force, and if the Chief

Commissioner who made the delegation ceases to hold office, the delegation

continues to have effect as if it were made by his or her successor.

(6) If the Chief Commissioner has delegated a power pursuant to this section,

the person to whom the power is delegated shall, when required to do so, produce

evidence of his or her authority to exercise the power.

(7) If the Chief Commissioner is of the opinion that there is a conflict of interest

respecting the exercise of his or her powers, the Chief Commissioner may

delegate his or her powers pursuant to subsection (1) to an individual who is not

a member or an employee of the commission”.

Section 27 amended

8(1) Subsection 27(1) is repealed and the following substituted:

“(1) A person may file with the commission a complaint in the form prescribed

by the commission if:

(a) the complaint falls within the jurisdiction of the commission; and

(b) the person provides sufficient evidence that reasonable grounds exist

for believing that any person has contravened a provision of this Act, or any

other Act administered by the commission, with respect to a person or class

of persons”.

SASKATCHEWAN HUMAN RIGHTS CODE

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(2) Subsections 27(5) and (6) are repealed and the following substituted:

“(5) Subject to subsection (6), but notwithstanding any other provision of this

Act, the commission shall refuse to accept a complaint and shall not initiate a

complaint if the complaint is made more than one year after the person making

the complaint became aware, or should have been aware, of the alleged act of

discrimination.

“(6) The commission may accept a complaint or initiate a complaint after the

one-year period mentioned in subsection (5) if in the opinion of the Chief

Commissioner it is appropriate in the circumstances to do so”.

Section 27.1 amended

9 Subsection 27.1(2) is amended:

(a) in the portion preceding clause (a) by striking out “, or person

designated by the Chief Commissioner,”;

(b) in clause (f) by adding “or further investigation” after

“investigation”; and

(c) by repealing clause (g) and substituting the following:

“(g) having regard to all the circumstances of the complaint, a hearing of

the complaint is not warranted”.

Section 28 amended

10(1) Subsection 28(1) is amended in the portion preceding clause (a) by

striking out “, or any person designated by the Chief Commissioner,”.

(2) Subsection 28(2) is repealed.

(3) Subsection 28(3) is amended by striking out “by a human rights tribunal”.

Section 28.1 amended

11 Subsection 28.1(1) is amended in the portion following clause (b) by

striking out “inquiry” and substituting “investigation”.

Sections 29 to 29.4 repealed

12 Sections 29 to 29.4 are repealed.

New sections 29.5 to 29.8

13 The following sections are added before section 30:

“Mediation

29.5(1) If the Chief Commissioner determines that there are no grounds to

dismiss a complaint pursuant to subsection 27.1(2), he or she may, before making

an application to the court pursuant to section 29.6, require the parties to enter

into mediation.

(2) If the parties reach a settlement during the mediation entered into

pursuant to subsection (1), the complaint shall be considered settled for the

purposes of this Act.

(3) If, during the mediation entered into pursuant to subsection (1), the person

against whom the complaint is made proposes an offer of settlement that the

Chief Commissioner considers fair and reasonable but that the complainant

rejects, the Chief Commissioner may dismiss the complaint.

SASKATCHEWAN HUMAN RIGHTS CODE

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“Application for hearing

29.6(1) At any time after a complaint is filed or initiated pursuant to section 27,

the Chief Commissioner may apply to the court for a hearing of the complaint at

the judicial centre nearest to the place where the subject-matter of the

complaint arose.

(2) If the Chief Commissioner applies for a hearing pursuant to subsection (1),

the Chief Commissioner shall serve the person against whom the complaint was

made with a copy of the application.

“Hearing

29.7(1) Subject to subsection (2), on the receipt of an application for a hearing

pursuant to subsection 29.6(1), the court shall fix a date, time and place for

the hearing.

(2) Before setting a hearing date, the court may direct the parties to participate

in a pre-hearing conference.

(3) Except where modified by this Act, The Queen’s Bench Rules apply to a

hearing pursuant to this section.

(4) The court is entitled to receive and accept evidence led for the purpose of

establishing a pattern or practice of resistance to or disregard or denial of any of

the rights secured by this Act, and the court is entitled to place any reliance that

it considers appropriate on the evidence and on any pattern or practice disclosed

by the evidence in arriving at its decision.

“Costs

29.8 Neither the court nor the Court of Appeal may award costs to any party

unless the court or the Court of Appeal considers that there has been vexatious,

frivolous or abusive conduct on the part of any party”.

Section 30 amended

14(1) Subsection 30(1) is amended:

(a) by striking out the portion preceding clause (a) and substituting

the following:

“The parties to a hearing with respect to any complaint are:”; and

(b) by repealing clause (e) and substituting the following:

“(e) any other person specified by the court, on any notice that the court

may determine and after the person has been given an opportunity to be

heard against the adding of the person as a party”.

(2) The following subsections are added after subsection 30(2):

“(3) A party mentioned in clause (1)(b), (c), (d) or (e) may be represented at a

hearing by counsel at that party’s expense.

“(4) If the court considers it appropriate in the circumstances, and subject to

any conditions that the court considers necessary, a party mentioned in

clause (1)(b), (c), (d) or (e) may appear at a hearing with the assistance of a third

party other than counsel”.

SASKATCHEWAN HUMAN RIGHTS CODE

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Sections 31 and 31.1 repealed

15 Sections 31 and 31.1 are repealed.

Section 31.2 amended

16 Section 31.2 is amended:

(a) by striking out the portion preceding clause (a) and substituting

the following:

“The court shall dismiss a complaint if the court finds that:”; and

(b) by repealing clause (a) and substituting the following:

“(a) the complaint is not substantiated”.

New sections 31.3 and 31.4

17 Sections 31.3 and 31.4 are repealed and the following substituted:

“Orders by court

31.3(1) If the court finds that there has been a contravention of any provision of

this Act, or any other Act administered by the commission, the court may, subject

to section 31.5, order any person to do any act or thing that in the opinion of the

court constitutes full compliance with that provision and to rectify any injury

caused to any person and to make compensation for that injury, including:

(a) requiring that person to cease contravening that provision and to take

measures, including adoption of a program mentioned in section 47, to

prevent the same or a similar contravention occurring in the future;

(b) requiring that person to make available to any person injured by that

contravention, on the first reasonable occasion, any rights, opportunities or

privileges that, in the opinion of the court, are being or were being denied

the injured person, and including reinstatement in employment;

(c) requiring that person to compensate any person injured by that

contravention for any or all of the wages and other benefits of which the

injured person was deprived and any expenses incurred by the injured

person as a result of the contravention;

(d) requiring that person to pay any compensation that the court considers

appropriate, to any person injured by that contravention, for any or all

additional costs of obtaining alternative goods, services, facilities or

accommodations and any expenses incurred by the injured person as a

result of the contravention; and

(e) requiring that person, if the complaint is based on disability and the

premises, facilities or services of the person complained against impede

physical access or lack proper amenities, to make the premises, facilities or

services accessible or to provide the proper amenities but only if that

requirement would not cause an undue hardship.

(2) On making an order pursuant to subsection (1), the court may direct the

commission to supervise the measures undertaken by the person against whom

the order is made for the purpose of ensuring that proper measures are taken

and that the order is being complied with by the person against whom the order

is made.

SASKATCHEWAN HUMAN RIGHTS CODE

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(3) If the measures taken by the person against whom an order pursuant to

subsection (1) is made are not satisfactory to the commission, the commission

may apply to the court for an order directing compliance with the order made

pursuant to subsection (1).

(4) On an application pursuant to subsection (3), the court may grant an order

directing compliance and may make any other order that the court

considers appropriate.

“Order respecting compensation

31.4 The court may, in addition to any other order the court may make

pursuant to section 31.3, order the person who has contravened or is contravening

that provision to pay any compensation to the person injured by that contravention

that the court may determine, to a maximum of $10,000, if the court finds that:

(a) a person has wilfully and recklessly contravened or is wilfully and

recklessly contravening any provision of this Act or any other Act

administered by the commission; or

(b) the person injured by a contravention of any provision of this Act or

any other Act administered by the commission has suffered with respect to

feeling, dignity or self-respect as a result of the contravention”.

Section 31.6 repealed

18 Section 31.6 is repealed.

New section 32

19 Section 32 is repealed and the following substituted:

“Appeals

32(1) A decision or order of the court pursuant to section 31.2, 31.3 or 31.4 may

be appealed to the Court of Appeal.

(2) The minister is entitled to be heard, by counsel or otherwise, on the

argument of an appeal mentioned in subsection (1)”.

Section 33 repealed

20 Section 33 is repealed.

New section 34

21 Section 34 is repealed and the following substituted:

“Immunity

34 None of the minister, the commission, a member of the commission, an

employee of the commission or an individual mentioned in subsection 26.1(7) is

liable for any loss or damage suffered by any person by reason of any thing done

or omitted to be done in good faith pursuant to or in the exercise or supposed

exercise of the powers conferred by this Act”.

Section 38 amended

22(1) Subsection 38(1) is amended by:

(a) striking out “Court of Queen’s Bench” and substituting “court”; and

(b) striking out “he” and substituting “the judge”.

SASKATCHEWAN HUMAN RIGHTS CODE

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(2) Subsection 38(2) is amended by striking out “Court of Queen’s Bench” and

substituting “court”.

(3) Subsection 38(3) is amended in the portion preceding clause (a) by

striking out “bring action in Her Majesty’s Court of Queen’s Bench for Saskatchewan”

and substituting “commence an action in the court”.

Section 47 amended

23 Subsection 47(2) is amended in the portion preceding clause (a) by

striking out “a human rights tribunal” and substituting “the court”.

New section 48

24 Section 48 is repealed and the following substituted:

“Reasonable and justifiable measures

48(1) Subject to subsection (2), it is not a contravention of this Act for a person

to adopt or implement a reasonable and justifiable measure:

(a) designed to prevent disadvantages that are likely to be suffered by, or

to eliminate or reduce disadvantages that are suffered by, any group of

individuals if those disadvantages would be or are based on or related to one

or more prohibited grounds; and

(b) that achieves or is reasonably likely to achieve that object.

(2) If a program has been approved or ordered pursuant to section 47, a

measure mentioned in subsection (1) must comply with the terms and conditions

of that program”.

Section 49 amended

25 Subsection 49(1) is amended:

(a) by repealing clauses (a) to (c);

(b) by striking out “and” before clause (d); and

(c) by adding the following before clause (d):

“(c.1) the commission’s business for the preceding fiscal year; and”.

Transitional

26(1) In this section, “former provisions” means the provisions of The Saskatchewan

Human Rights Code as that Act read before the coming into force of this Act.

(2) Notwithstanding the coming into force of this Act or any other Act or law:

(a) a human rights tribunal remains in place for the purposes of completing any

inquiry or review that commenced pursuant to the former provisions and that is

not completed on the day on which this Act comes into force; and

(b) the human rights tribunal mentioned in clause (a):

(i) shall continue and complete an inquiry or review mentioned in

clause (a) in accordance with the former provisions; and

(ii) may exercise any powers given to, and shall fulfil any duties imposed

on, the human rights tribunal pursuant to the former provisions.

SASKATCHEWAN HUMAN RIGHTS CODE

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(3) If a human rights tribunal mentioned in subsection (2) determines on a review

that an inquiry should be ordered:

(a) the human rights tribunal shall set the terms of the inquiry; and

(b) the inquiry shall be conducted, with any necessary modification, in accordance

with the former provisions.

(4) The former provisions remain in force for the purposes of completing an inquiry

or review mentioned in clause (2)(a) or an inquiry mentioned in subsection (3).

R.S.S. 1978, c.L-1, new sections 19 and 20

27 Sections 19 and 20 of The Labour Standards Act are repealed and the

following substituted:

“Appointment of adjudicator

19(1) If the officer appointed pursuant to section 18 is unable to effect a

settlement respecting the matter mentioned in that section, the minister may

appoint an adjudicator to conduct an inquiry into that matter.

(2) Nothing in subsection (1) prohibits the prosecution of an employer alleged to

have violated section 17.

“Powers on inquiry

20(1) An adjudicator appointed pursuant to section 19 shall conduct the inquiry

and, for that purpose, the adjudicator has the powers of a commissioner pursuant

to The Public Inquiries Act.

(2) If an adjudicator is appointed pursuant to section 19, the adjudicator may

exercise the powers given to the Court of Queen’s Bench pursuant to

sections 31.2 to 32 of The Saskatchewan Human Rights Code, and those sections

apply, with any necessary modification, to the adjudicator and the inquiry”.

Coming into force

28 This Act comes into force on proclamation.