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New Changes to the Northwest Territories’ Human Rights Act

06-Aug-19

By Christopher Buchanan

Big changes are coming to the NWT’s Human Rights Act that will impact the way human rights complaints are handled in the NWT.

On June 6, 2019, Bill 30 – An Act to Amend the Human Rights Act was passed by the Legislative Assembly of the Northwest Territories. Bill 30 amends the Human Rights Act in three phases over the course of the next few years, with the first phase having come into force on August 1, 2019.

Do These Changes Impact Employers?

Almost certainly. The Human Rights Act applies to most employers in the NWT (unless you are under federal jurisdiction). It not only applies to the rights of employees, but it also applies to the public, including the provision of goods, services, accommodation, and facilities to the public. With such a broad reach, the amended Human Rights Act will likely impact almost every employer in the NWT.

Why Make Changes?

The Human Rights Act (the "Act") has not been significantly changed since it first came into force over 15 years ago. A comprehensive review determined that the human rights system was too focused on complaints and was too adversarial. The primary recommendation was that the NWT Human Rights Commission (the “Commission”) focus on broader human rights issues, such as fostering a culture of diversity and inclusion in the NWT. Bill 30 was drafted in response to the comprehensive review.

What Is Changing?

The main thrust of the changes is to clarify the public interest mandate of the Commission and to make the complaint process less adversarial by using and promoting restorative principles.

The most important amendments to the Human Rights Act implemented over three phases are as follows:

Phase 1: In Force on August 1, 2019

  • “Gender expression” will be added as a protected ground of discrimination. Gender expression is separate from a person’s gender identity and sexual orientation. (Click here for more information.)
  • The Commission will be required to use non-adversarial processes whenever possible to resolve complaints. To that end, restorative dispute resolution will become the default means to settle complaints instead of mediation.
  • Adjudicators will be able to determine practices and procedures for hearings that are alternative to the traditional adversarial process and are consistent with a restorative approach to dispute resolution.
  • The scope of remedial orders will be expanded so that adjudicators can order a party to do anything that the adjudicator considers appropriate for the purpose of preventing the same or any similar contravention in the future.
  • Complaints accepted before August 1, 2019, shall proceed in accordance with the Human Rights Act as it read on July 31, 2019. Complaints accepted after July 31, 2019, but before April 1, 2020, that are not concluded by March 31, 2020, shall proceed in accordance with the Human Rights Act as it reads on March 31, 2020.
Phase 2: In Force on April 1, 2020
  • The office of the Director of Human Rights will be absorbed into the Commission. The Commission will operate as a single, harmonized entity.
  • The Director of Human Rights will be renamed the Executive Director of the Commission. The Executive Director will be given the new role of vetting complaints before they are filed to determine if they should be accepted by the Commission. Previously, all complaints were automatically accepted when they were filed.
  • The Executive Director will be able to refuse to accept a complaint on the following grounds:
    • the time limit for filing a complaint has expired;
    • the complaint is beyond the jurisdiction of the Commission; or
    • the acts or omissions alleged in the complaint are not subject to the Human Rights Act or do not raise a significant issue of discrimination.
  • If the Executive Director refuses to accept a complaint, the complainant must be provided with written notice of the refusal. The complainant may then appeal the refusal to the Commission within 30 days after being served with the notice. The decision of the Commission is final. The process for conducting an appeal has yet to be established.
  • If the complaint is accepted, the Executive Director will make a recommendation to the Commission as to whether the complaint should be deferred, dismissed or referred to adjudication.
  • The Commission will then decide whether the complaint ought to be deferred, dismissed, or referred to adjudication.
  • The grounds for dismissing a complaint before it is referred to adjudication will be expanded to include the following:
    • the acts or omissions alleged in the complaint raise no significant issue of discrimination;
    • the complaint is without merit;
    • there is no reasonable prospect of success;
    • the complainant has refused to accept a fair and reasonable offer of settlement; or
    • the best interest of the individual or group of individuals on whose behalf the complaint was made will not be served by continuing with the complaint, having regard to all circumstances of that complaint.
  • The Commission will be permitted to retain legal counsel and engage persons having special or technical knowledge as advisors to assist and advise the Commission in the administration of the Act. The Commission could therefore provide a complainant with legal counsel or an advisor to assist them with their complaint.
  • The Commission will automatically be a party to all complaints referred to adjudication to represent the public interest and uphold the principles of the Human Rights Act. This means that the Commission may make submissions and bring evidence at adjudication.
  • Complaints accepted after March 31, 2020, but before April 1, 2021, that are not concluded by March 31, 2021, shall proceed in accordance with the Human Rights Act as it reads on March 31, 2021.
Phase 3: In Force on April 1, 2021
  • The Executive Director, on behalf of the Commission, will be responsible for advancing complaints before the NWT Human Rights Adjudication Panel and the Courts. Previously, the complainant was responsible for the carriage of their own complaint.

How Do These Changes Impact Employers?

Some of the amendments to the Human Rights Act have the potential to benefit employers, and others may bring some uncertainty to the complaint process.

The changes that may benefit employers are those that present more opportunities to have a complaint dismissed before adjudication. The biggest change on this front is having the Executive Director vet complaints before they are accepted by the Commission. This change should speed up dismissals and reduce the workload of the Commission, because such complaints do not require a response from the respondent.

Another positive change is the addition of new grounds for the Commission to dismiss complaints after they are accepted. Currently, the threshold for complaints being referred to adjudication is quite low. These new grounds for dismissal could open the door to a new, higher threshold, which would in turn reduce the number of complaints proceeding to adjudication.

Settling complaints may become easier as well. Complainants will have an incentive to settle, because their complaint may be dismissed by the Commission if they refuse to accept a fair and reasonable offer of settlement. In addition, the Commission will be given the flexibility of offering different forms of dispute resolution instead of simply mediation. For example, the Commission may offer a restorative option, such as a healing circle, to facilitate settlement discussions and attempt to repair ongoing relationships between parties.

The changes that create uncertainty for employers are the use of alternative processes at adjudication, the expansion of the remedial order-making power of adjudicators, and the provision of legal assistance to complainants.

Adjudicators will be able to conduct hearings in a way that differs from the classic court-style format by taking a restorative approach to dispute resolution. It is not known at this point what alternative processes would be used and when.

With expanded remedial order-making powers, an adjudicator will be able to order a party to do anything that the adjudicator considers appropriate for the purpose of preventing the same or any similar contravention in the future. This is a broad power that opens to the door to decisions that could go beyond the reach of previous decisions.

Finally, the Commission will have the option of providing complainants with legal counsel or another type of advisor to assist them with their complaint. Previously, complainants had no option for legal advice other than private legal counsel. It is not clear what the Commission will decide to do with this new power. It may offer complainants with limited legal advice at the time the complaint is filed, or it may offer full legal representation throughout the complaint process. This change could provide a real advantage to complainants who are facing unrepresented respondents.

McLennan Ross LLP assists employers with human rights matters in the NWT, Nunavut, and Alberta.

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