The Lynch List, 26-Jul-2011

Only two today, but they’re well worth the read:

First: I am going to re-post this report of a survey of HR professionals in its entirety, since it is all good stuff:

When it comes to the effectiveness of the Human Rights Tribunal of Ontario (HRTO), HR professionals in Ontario cite a perceived bias against employers (76.1 per cent) as the biggest problem. Also an issue are nuisance or frivolous claims (73.2 per cent), the lengthy process (53.1 per cent), the expense of the process (41.3 per cent) and an unclear mandate (27.7 per cent).

Almost one-third (32 per cent) of 235 respondents surveyed by the Human Resources Professionals Association (HRPA) rated the overall performance of the tribunal as poor while 48.2 per cent said it is fair, 18.3 per cent said it is good and 1.5 per cent said it is excellent.

The quality of the adjudicators and mediators is unpredictable, said one respondent, which pressures employers to settle monetarily for certainty. There is also no opinion about the frivolousness of claims until it’s too late in the process, said another.

“The reverse burden of proof and the assumption of guilt on the part of the accused make it a kangaroo court that is a disgrace to our justice system,” said one HR professional.

A strong majority (81.7 per cent) of respondents said the HRTO’s mandate needs to be reviewed (compared to five per cent who said no and 13.2 per cent who were unsure).

A mandatory pre-screening process for all complaints was the most popular (89.6 per cent) way to fix the HRTO, found the survey, followed by specially trained judges, similar to those in family law courts, to move towards an evidence-based system (75.9 per cent), new standards so the tribunal uses rules similar to the courts (47.2 per cent) and reversing the decision to bring back the $10,000 cap on damages the HRTO could award for mental anguish (36.3 per cent).

When it comes to expenses, 62.1 per cent of respondents said employers should not have to fund their defence when human rights complainants receive legal aid free. One-quarter (24.2 per cent) said the current system is OK while 13.7 per cent were unsure.

Almost all (87.4 per cent) HR professionals feel the government should conduct a follow-up review of the HRTO and 30.5 per cent feel the tribunal should be dismantled (though 41.2 per cent disagree and 28.3 per cent are unsure).

“The (tribunal) serves an important purpose but the reputation is it has a red carpet roll out for complaints and a built-in bias for the employer,” said one respondent.

“I don’t think it needs to be dismantled, it just needs to be overhauled,” said another.

Second: Who says the Tribunals aren’t trying to expand their mandate?

In both [BC Human Rights Tribunal] decisions, while not expressly rejecting the higher threshold (which the Tribunal cannot do as it is bound to follow the decision of the BC Court of Appeal in which this high threshold was set), the Tribunal undertook a creative analysis to find that in these particular cases, the “serious interference with a substantial parental duty” test did not apply.

Hamstrung by a higher court? A little “creative analysis” will get over that troublesome hurdle.


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