Human rights inquiries stacked against complainants, says advocate

An equality advocate in Nova Scotia is calling on the province's human rights commission to provide lawyers for people who file complaints, saying the current system creates a David and Goliath battle for victims of discrimination.

Judy Haiven of the group Equity Watch Nova Scotia said she saw the need for change first hand while sitting in on a board of inquiry for a complaint filed by Gyasi Symonds in November.

Symonds, who is Black, said he was the victim of racism by Halifax Regional Police in 2017 when two officers went to his work to ticket him for jaywalking.

The inquiry, which took place over several days, was structured like a casual court. Lawyers were there representing the officers and human rights commission, while Symonds represented himself.

Haiven said Symonds was at a disadvantage from the start.

"He was going up against frankly a very large employer, possibly the largest in the city, the city of Halifax," Haiven said. "Of course his knowledge of the law and his own legal rights are very limited because he's not a lawyer."

Few inquiries

Symonds repeatedly addressed the issue during the hearing, saying he didn't understand the format, some terminology, and he pointed out that he was the only one in the room not being paid to take part in the inquiry.

It will be six months before the result of that inquiry is known, and Symonds did not want to do an interview about the process until after the decision is released.

Haiven points out that those filing complaints are disproportionately people from minority groups, who often would not have access to thousands of dollars to hire a lawyer, or be able to take time off work to prepare their case. 

She said the commission needs to provide help.

"If we want to defend people's rights and allow people to have full human and civil rights, we have to fund the human rights commission," said Haiven.

Over the last three years, only about five per cent of the complaints ended up in a board of inquiry. Of the 159 complaints received in 2019 and 2020, only nine reached that part of the process.

The Nova Scotia Human Rights Commission said there's a number of factors that affect that. Some cases reach settlements, some are dismissed because of a lack of evidence and some are withdrawn. Haiven is convinced a lack of support is also an issue.

"I think it's a rare person that agrees to go before a tribunal, no matter how friendly an adjudicator may be."

A problem 'across Canada'

The commission's senior legal counsel agrees the current system is flawed, but said there's no easy fix.

"Overall, probably yes, the complainant would be at a disadvantage if the respondent was represented by counsel," said Kymberly Franklin.

She said a lawyer isn't needed during the complaint process, but if it does reach the inquiry level, she always recommends a complainant seek counsel.

"That is something that is definitely on our radar and it's an identified problem across Canada."

Franklin said the answer is not as simple as providing lawyers for complainants.

The commission's mandate is to protect the public interest. Franklin said it would be a conflict of interest to support one side and not the other.

"The commission isn't there to represent people, they aren't there to promote any one complaint."

She said they would have to offer help to both sides, and restructure to create a new, completely separate department to do so. Franklin said the money isn't there to cover that.

"We have a hard enough time trying to get funding for our existing staff of 25."

Ontario example

Franklin said a potential solution would be to work with the Department of Justice and Nova Scotia Legal Aid to see if some help could be provided. She points out currently, legal aid does not practise administrative law.

She said in an ideal world, both sides of the inquiry would always have representation.

"I think the board chairs that we have do a really good job of being open and a little bit more loose with some of the rules because they know that people that don't have lawyers don't know the legal system and don't know how court runs."

Haiven said if the province truly wants to fix its issues with discrimination, it needs to start with the commission itself.

She points to a system in Ontario, where people making complaints can consult a Human Rights Legal Support Centre. She said there's no reason why something similar can't exist in Nova Scotia.

"It's one-stop shopping and it's something that we could really use here. It also guarantees that everybody who wants gets their day at a tribunal."

For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.

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