The British Columbia Law Institute says it’s “premature” to reach a general conclusion on the merits of a proposed super tribunal.
“While theoretically the concept of a workplace tribunal for BC has some merit, the proposed model leaves too many key features of the system unclear to enable a full analysis of the strengths and weaknesses,” the report released Nov 2 says.
“One vision of a Workplace Tribunal envisages a newly created, well-funded tribunal, with efficient costs and experienced and proficient members. However, it is not clear that creating a new entity will result in improved funding, better efficiency and greater experience and that existing problems will not be imported into the new tribunal,” the report continues.
The report was conducted at the request of the Ministry of Labour and the Ministry for the Attorney General, which are proposing the establishment of a “super tribunal” to deal with all employment-related disputes currently handled by the Labour Relations Board, the Employment Standards Tribunal and the Human Rights Tribunal.
Under this model the Human Rights Tribunal would still exist, but would be stripped of all powers to adjudicate employment-related disputes, including the ones related to discrimination on the basis of sexual orientation.
Lesbian lawyer barbara findlay, who has represented many queer people at the Human Rights Tribunal, thinks the government’s super-tribunal idea is completely unworkable.
“For starters, they are proposing to turn the functions of the Human Rights Tribunal over to a body charged only with workplace issues, whereas human rights issues extend much more broadly than that,” she says.
Vancouver lawyer and former Human Rights Tribunal member Lindsay Lyster believes the authors of the report knew that they were working with a flawed proposal.
“I think that what comes through clearly is the BCLI realized that there were problems with the project they’ve been given, both in terms of lack of sufficient detail and with a too brief and insufficiently inclusive consultation process.”
Last month the Canadian Association of Labour Lawyers expressed “grave concern” over the lack of consultation associated with this process.
The report acknowledges the consultation was brief.
“The BCLI consultation was brief and targeted to a relatively small number of people, though broadly based in terms of involving stakeholders and experts from a number of primary affected sectors, including labour, employment and human rights, and involving members from both the trade union and employer communities,” it says.
“I think it’s clear from the BCLI report that the people they were speaking to were divided, but there’s certainly no consensus to move forward into workplace tribunal model,” Lyster says.
The report also acknowledges that more funding is needed for all three branches of dispute resolution being studied.
“All three current areas of dispute resolution — human rights, labour and employment standards — would benefit from greater public funding to enhance the quality of mediation,” it says.
Lyster points out the report does not provide support for any legislative changes and that it’s up to the provincial government to decide how to proceed.
“The ball is back in the government’s court to decide what, if anything, they want to do about changing the structure of the resolution of human rights disputes,” she says. “Given the change of leadership in government, it’s anybody’s guess what they’ll do.”
Findlay thinks the queer community needs to pay attention to this issue, regardless of what the government does.
“We must not become complacent and think that this is an issue that doesn’t matter,” she says, “because we remain one of the groups most likely to be targeted for discriminatory treatment, including by government.
“And without effective remedies, we can slide back into the situation we were in the early ’90s, when there were no human rights,” she warns.