Canada’s broken court system is about to get even worse

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By Howard Levitt and Kathryn Marshall

The Canadian court system is in crisis and it’s only getting worse.

In Toronto, it takes well over a year to have a motion heard before a judge. The shortage of judges has been well covered, but there are other cracks in the system. On June 13, five courtrooms in Vancouver and three more in Port Coquitlam were closed because of a shortage of sheriffs. As they say, justice delayed is justice denied.

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One of the long-standing solutions to these problems (besides appointing more judges and hiring more sheriffs, of course) has been to move certain types of legal disputes out of the court system and into tribunals and commissions.

In theory, by having human rights cases heard by commissions (both provincial and federal), the court system is freed up. The commissions are supposed to offer a specialist path for these types of cases, ensuring a quicker route to justice.

It has not quite worked out that way, as it turns out the tribunals and commissions are similarly understaffed and slow. Howard has one case before the Canadian Human Rights Commission (CHRC) that has now gone on for close to 10 years. And that is without a hearing. To make matters worse, the Trudeau government’s new Online Harms Act, currently before the House of Commons, will make the CHRC responsible for adjudicating online hate speech as well. There is no word on whether the government will provide additional resources to ensure that the Commission can deal with the increased case load. The inevitable result will be yet more delays and less justice in what is supposed to be a quicker process for human rights cases.

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As employment lawyers, we frequently use the human rights’ commissions to bring forward sexual harassment and discrimination cases that occur in a workplace context. For many employees, the human rights commission is their only realistic recourse, especially if they are unionized and not permitted to sue their employers in civil court, as the collective bargaining agreement bars them from doing so. One problem with the human rights’ regime is that no costs are awarded regardless of who wins. Sometimes legal costs dramatically exceed a complainant’s ultimate judgement, even when successful. Not a great incentive to proceed in the first place.

To make matters worse, the CHRC has just received a blow that puts it in the same category as commissions in Russia, Venezuela and Iraq. It seems unbelievable, but the commission is under special review by an international organization called the Global Alliance of National Human Rights Institutions.

The Alliance could downgrade the Canadian Human Rights Commission because the federal government’s Treasury Board of Canada Secretariat found that it had been discriminating against its black employees.

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So, the institution designed to protect Canadians from discrimination has been found to be discriminating against its own employees, while its ability to offer a quicker path to justice is about to be undermined by this new legislation.

The news will further degrade public trust in this country’s already broken court systems. Rather than focusing on adjudicating human rights cases, the Canadian Human Rights Commission will be focusing on its own damage control.

It is time for politicians to wake up and do something about the judicial crisis. Our democracy depends on a functional court system.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada. Kathryn Marshall is a partner at the firm.

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