Source: flickr/Mack Male By Charlotte Dalwood The Red Tape Reduction Implementation Act, 2021 (no. 2), otherwise known as Bill 80, came into force on December 08, 2021 and made several consequential changes to the Alberta Human Rights Act (“the...
By Charlotte Dalwood
The Red Tape Reduction Implementation Act, 2021 (no. 2), otherwise known as Bill 80, came into force on December 08, 2021 and made several consequential changes to the Alberta Human Rights Act (“the Act”).
Bill 80 passed the Legislative Assembly of Alberta as part of a series of Acts intended to cut regulatory red-tape and make it easier for Albertans to access government programs and services. It clarified, modernized, or otherwise updated the Act in five key areas: (1) the Alberta Human Rights Commission’s bylaw-making authority; (2) the Director’s powers and role; (3) settlement enforcement mechanisms; (4) appeal procedure; and (5) Commission procedure.
This blog post outlines the relevant changes in each area in turn.
Changes to the Alberta Human Rights Commission’s Bylaw-Making Authority
Under the previous version of the Act, the Alberta Human Rights Commission (“the Commission”) possessed the broad but vaguely defined authority to enact bylaws with respect to “procedural matters related to the handling of complaints.” Bill 80 clarified that those bylaws may pertain to, among other things, (1) “complaints and the director’s exercise of functions, duties and powers with respect to complaints;” (2) “proceedings before a human rights tribunal;” and (3) “matters for which no express or only partial provision has otherwise been made in this Act,” including bylaws that authorize the Director of the Commission to waive the application of a bylaw altogether.
The Bill also added an interpretation clause to govern readings of both Commission bylaws and the section of the Act that authorizes their creation. They are to be “liberally construed to permit the use of policies, practices, hearings and other procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Commission, will facilitate fair, just and expeditious resolutions of the merits of complaints under this Act.”
Changes to the Director’s Powers and Role
Prior to the passage of Bill 80, the Act was clear: in responding to a human rights complaint, the Director who administers the Act was first to attempt a settlement through conciliation and, where conciliation fails, through an investigation. Of course, this procedural directive did not deprive the Director of the power to dismiss a complaint altogether. And the Act outlined several criteria that the Director was to weigh in determining whether to opt for dismissal, including whether the complaint “is one that could or should more appropriately be dealt with…in another forum” or lacks merit.
Bill 80 repealed the sections concerning the Director’s powers and substituted a new section that granted the Director broader discretionary authority to handle complaints. No longer is the Director required to pursue a settlement from the outset. Instead, the Director is free to decide whether to dismiss a complaint, pursue a settlement, or refer a complaint to the Chief of the Commission and Tribunals for resolution via a human rights tribunal.
The Bill also clarified the criteria for dismissing a complaint. Under the amended version of the Act, reasons the Director might opt for dismissal include where the complaint (1) “was made in bad faith for an improper motive or purpose;” (2) “has no reasonable prospect of success;” or (3) “is being, has been, will be or should be more appropriately dealt with in another forum or under another Act.” Moreover, where a complainant has refused a “proposed settlement that is fair and reasonable,” the Director may on that ground dismiss the complaint.
Changes to Settlement Enforcement
The previous version of the Act specified that “A decision of the Chief of the Commission and Tribunals or another member of the Commission…is final and binding on the parties, subject to a party’s right to judicial review of the decision.” Bill 80 retained this language while adding a subsection creating an enforcement mechanism for settlements negotiated under the Act. Now, where one party to the settlement believes that another party has contravened the terms of a negotiated settlement, they may apply to the Human Rights Tribunal within 6 months of the contravention for relief. The Tribunal is then empowered to make “any order that it considers appropriate to remedy the contravention.”
Changes to Appeal Procedure
Before Bill 80 came into effect, the Act empowered parties before a human rights tribunal to appeal a tribunal order to the Alberta Court of Queen’s Bench (as it then was). The Act further specified that the Court might confirm, reverse, or vary the order in question and make any other order that the tribunal itself is empowered to make.
Bill 80 repealed this section of the Act, eliminating the right of appeal therein altogether. This does not, however, make the Commission immune from judicial oversight. Section 35 of the amended Act refers to “a party’s right to judicial review of the decision” of a Commission member or a human rights tribunal. However, that right is now subject only to the general principles of administrative law, and is not guided by a clearly defined appellate procedure within the Act itself.
Changes to Alberta Human Rights Commission Procedure
Bill 80 modernized the Act by introducing a number of changes designed to incorporate electronic communication into Commission procedure.
Before, one could not file a document with the Commission via electronic means. Bill 80 changed that to allow for electronic filing “in accordance with the bylaws.”
Bill 80 further updated the Act to permit a party to serve notices and documents via “email to the email address provided by the person for the purpose of receiving the notice or other document.” In those circumstances where the party must prove delivery or service of a notice or document, Bill 80 specified that, in the case of email service, “the time provided for in the bylaws is the time of filing or service.”
Finally, Bill 80 introduced electronic proceedings into the complaint management regime. An “electronic proceeding,” as contemplated by the amended Act, is “a proceeding that is held using electronic means such as a teleconference or videoconference, where each participant is able to hear and respond to the comments of the other participants at the time the comments are made.” Hearings, conciliation, dispute resolution, and other proceedings before the Commission may now be conducted as electronic proceedings.
Current Concerns about the Amendments
Bill 80 does much to modernize Alberta’s human rights regime. Nonetheless, it has been met with some criticism from the legal community.
In a panel put on by the John Humphrey Centre for Peace and Human Rights earlier this year, panelist Robert Philip characterized the “unfettered discretion” that the Director now enjoys as a result of the amendments as “dangerous.” Another panelist, Arman Chak, noted that the amendments lack a vehicle for promoting participation from public and private actors at an early stage in the complaints-management process. As he put it, “resources have to be put into, and policy has to be put into, to give more grants, to give more access to, at the preliminary stages, public and private actors so that there’s more participation of those that are victims of human rights abuses.” Nname Okoye further noted that, if the goal of the amendments was to further access to justice, the standard by which the Director screens complaints should have been lowered.
Alternatives to the Bill 80 regime have thus been proposed. In the same panel, Philip offered two such alternatives: implementing a “direct-access model,” under which complainants could take their grievance directly to the human rights tribunal without a pre-screening process; and legislating a new human rights tort, which would allow complainants to take their grievance directly to the courts. The former proposal, of course, would not solve the problem of inventory backlog at the Alberta Human Rights Commission. But regardless, as Chak pointed out later in the same panel, the Commission needs to facilitate participation and address systemic discrimination.
In the end, as Okoye rightly noted, more time is needed to fully evaluate the impact of the changes that Bill 80 introduced.