Recommendations

The report includes two specific recommendations for amendments to the act.

Systemic Remedies

The first recommendation is to amend the act to explicitly allow the Human Rights Adjudication Panel to order systemic remedies in addition to remedies to address the situation of individual complainants. Systemic remedies might include requiring an organization to implement employment equity or to change policies that have resulted in discrimination. The report cites the persistence of unequal pay for work of equal value between men and women as an example of systemic discrimination. In such a case, providing compensation or another remedy to one individual complainant would not address the overall issue or assist others being subjected to the same discrimination by the same employer.

The witnesses also suggested there is an inherent contradiction in the act in that it currently allows the commission to initiate complaints, which in practice it would most likely do in a case of systemic discrimination, but does not allow the adjudication panel to grant the corresponding remedies.

The committee was made aware that some other Canadian jurisdictions explicitly allow for systemic remedies in their human rights legislation, and that in other jurisdictions, the courts have interpreted the acts as allowing for systemic remedies even though they do not explicitly grant this power.

While the committee does not necessarily disagree with the recommendation, we would like to be assured that it would not have unforeseen implications beyond those identified by the commission. We would also point out

that our act is as yet new and untested and that it may be more appropriate to revisit this recommendation after we have gained a few years' experience and established our own precedents.

Recommendation

The Standing Committee on Accountability and Oversight recommends the GNWT review the implications and advisability of including systemic remedies in the Human Rights Act and report back on its findings in its response to this report.

Criminal Convictions

The act currently prohibits discrimination on the basis of pardoned criminal convictions. The report recommends that the act be amended in order to prevent discrimination on the basis of "unrelated" criminal convictions. The example provided in the report is of a person with a record for driving while impaired being refused a job that does not involve driving. The current act would not protect that person unless he or she had received a pardon. With the recommended wording, the person would have grounds for a complaint by making the case that a conviction for a driving offence is unrelated to a job that does not involve driving. Similarly, a person refused a job on the basis of a conviction from many years ago might have grounds for a complaint.

The committee had a lengthy and spirited discussion on this issue. Some Members are reluctant to support the recommendation because it would put employers in a very difficult position of making judgment calls about what is or is not an "unrelated" conviction. In some cases, it could be very difficult for them to balance their duties toward their clients or other employees with the legal requirement not to discriminate against a job applicant. For example, if a person had a twenty-year-old record for sexual assault and no subsequent convictions, would it be discrimination to refuse to hire him or her for a delivery job? On the other hand, would it be negligent to put customers and other employees in contact with a person whose history included a violent offence? Some Members are concerned that it would be unfair to expect employers to make these kinds of evaluations.

In support of the recommendation, Members pointed to some employers' policies of not hiring anyone with a criminal conviction without giving any consideration to the relevance of the offence. Such policies are making it difficult for many responsible adults who made mistakes in their youth to find employment and provide for their families. Prohibiting discrimination on the basis of unrelated criminal convictions would prevent employers from automatically refusing to hire anyone with a record and force them to consider applicants on a case-by-case basis.

Recommendation

The Standing Committee on Accountability and Oversight recommends the GNWT review the implications and advisability of amending the Human Rights Act to prohibit discrimination on the basis of unrelated criminal convictions and report back on its findings in its response to this report.

Other Issues

In the course of our discussions on the annual report, some Members noted the act uses the word "sex" to refer to discrimination on the basis of being male or female, and raised concerns that this terminology could be misunderstood or be offensive to some people. The committee suggests the government consider bringing forward an amendment to the act to change the word "sex" to "gender," which is in its opinion a less confusing and more appropriate term.

Conclusion

The committee looks forward to monitoring the continued evolution of the Northwest Territories Human Rights Commission, and to reviewing its next annual report.

Recommendation

The Standing Committee on Accountability and Oversight recommends that, pursuant to Rule 93(5), the GNWT table a comprehensive response to this report within 120 calendar days.