On decision makers

Following up on this morning's post, let's go into a bit more detail about exactly what it is that's being proposed in the Sask Party's move to eliminate Saskatchewan's Human Rights Tribunal - and just how far out of place that is compared to virtually every other public function imaginable.

To start with, it might be well and good to note that there are sometimes issues with how files are dealt with when they're taken in at the Human Rights Commission level, as well as that Human Rights Tribunal proceedings can often end up taking time to be completed. But the obvious response to that is to look at how to make the existing systems more efficient, not use the situation as an excuse to trash them. I don't agree with every result that comes out of our court system either - but that doesn't mean we'd be better off to eliminate any ability to decide disputes.

And it should be fairly clear that one won't speed up the process of dealing with a given number of complaints by eliminating the tribunal with specific expertise to deal with them.

Instead, as BCL notes, the obvious goal of requiring human rights enforcement to take place in court is to make it more difficult for complainants to actually take action. And it's worth noting just how far removed that is from the conventional wisdom when it comes to...well, virtually every other type of adjudication under the sun.

Have an issue with privacy or information? There are independent decision-making offices for that at both the provincial and the federal level. Want to see an environmental law enforced? The province is moving toward a ticketing model rather than requiring court hearings for all violations. Public-sector procurement concern? Labour issues? Automobile insurance claims? Workers' compensation claims? Complaints about regulated professionals? Dealt with by arbitral tribunals, every one.

And there's good reason for the shift toward separate tribunals with specific expertise in an area. Simply put, tribunal systems (backstopped by judicial review in exceptional cases) are the simplest, fastest, cheapest way for an individual's concerns about a specific matter to be dealt with by a neutral decision-making body.

Of course, there are other benefits as well. Tribunals allow for far more flexibility in managing proceedings, as the body responsible can shepherd claims through without a need for constant applications to court to keep things moving. And as an added bonus, tribunal members are able to develop deeper knowledge of the issues to be dealt with than a judge who might never have dealt with an issue before a motion finds its way into a courtroom.

Now, no system is perfect, and it may be that there's a need for better procedures to ensure that HRT hearings proceed at a faster pace. But the answer to that for anybody who actually wants concerns to be addressed would seem to be to seek to have dedicated, better-trained tribunal members to handle the task - not to eliminate any collection of institutional knowledge.

Instead, a move toward eliminating the faster, more convenient means of resolving disputes in favour of the formality of a courtroom - at a time when absolutely no other type of proceeding is moving in that direction - can't be seen as anything but a deliberate effort to reduce the ability of complainants to have their concerns addressed.

For prospective defendants, the tradeoff of less claims in exchange for more cost to dealing with them might well be a slight positive at the end of the day - though of course with greater rewards for those who violate rights more frequently. But the disincentive to individuals pursuing their human rights as complainants should be obvious.

Naturally, there are some excuses or dodges to pretend those disincentives shouldn't be a problem. But a case-by-case assessment of access to public legal funding is bound to leave plenty of complainants out in the cold (not to mention being ripe for cuts from the same government which is trying to hold out the application process as somehow representing a useful compromise). And the diversion of public money from actually facilitating complaints to setting up a system to evaluate whether complainants should be approved for a smaller pool of funds can't be seen as anything but the height of inefficiency.

In sum, then, the onus has to be on anybody seeking to eliminate Saskatchewan's human right tribunal system to explain why human rights should be seen as the lone area of public interest where the normally accepted standard for a superior dispute resolution model should be thrown out the window in favour of the more expensive and cumbersome court system. And while there's a ridiculously large body of rhetorical outrage backing up the anti-human rights position, any factual case for it looks to be sorely lacking.