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The Human Rights Code Amendment Act

This is an unofficial version.
If you need an official copy, use the bilingual (PDF) version.

S.M. 2021, c. 27

Bill 26, 3rd Session, 42nd Legislature

The Human Rights Code Amendment Act

Explanatory Note

This note was written as a reader's aid to the Bill and is not part of the law.

This Bill amends The Human Rights Code.

The Manitoba Human Rights Commission's current responsibilities for administering complaints will now be carried out by the Commission's executive director. The power to dismiss complaints is broadened and made available before an investigation. If the executive director terminates proceedings or dismisses a complaint on certain grounds, the complainant may ask the Commission to review the decision.

An adjudicator must follow a time limit when holding a hearing and issuing a decision and may make certain orders and decisions on an oral basis before issuing them in writing. A $25,000 cap on damages for injury is established as well as factors to consider when awarding such damages. A different adjudicator may be appointed to explore settlement with the parties before a hearing.

The Bill also clarifies and modernizes existing wording in the Code as well as certain notice requirements.

(Assented to May 20, 2021)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. H175 amended

1

The Human Rights Code is amended by this Act.

2

Subsection 6(2) is replaced with the following:

Annual report

6(2)

The Commission must submit an annual report to the minister on the activities of the Commission and the adjudication panel.

Tabling report in Assembly

6(3)

The minister must table a copy of the report in the Assembly on any of the first 15 days on which the Assembly is sitting after the minister receives it.

3

The French version of clause 7(2)(b) is amended by striking out "examen" and substituting "enquête".

4

The following is added after subsection 7(2):

Delegation by executive director

7(3)

The executive director may, in writing, delegate any responsibility or power of the executive director under this Code to another officer or employee of the Commission, other than

(a) the powers under subsection 22(3) (complaint by Commission or executive director);

(b) the powers under section 27 (access to premises and documents);

(c) the responsibilities under subsection 29(2) (adjudication or prosecution); and

(d) the powers under subsection 29(4) (combined complaints).

Executive director may still exercise power

7(4)

The executive director may continue to carry out a responsibility or exercise a power that they have delegated.

5

The following is added after subsection 8(5):

Procedural rules

8(6)

After consulting with the members of the adjudication panel, the chief adjudicator may establish rules of practice not inconsistent with this Code regulating the procedure for an adjudication under this Code.

Rules for exploring settlement before hearing

8(7)

The chief adjudicator's power under subsection (6) includes the power to make rules of practice respecting an adjudicator assisting the parties to resolve matters at issue in a complaint prior to a hearing.

Rules made available to the public

8(8)

The chief adjudicator must make rules established under subsection (6) available to the public.

6(1)

Subsection 23(1) of the English version is amended by adding "after the day" after "within one year" wherever it occurs.

6(2)

Subsection 23(2) of the English version is amended by striking out "he or she is" and substituting "they are".

6(3)

Subsection 23(3) is amended by striking out "Within 30 days of the filing of a complaint" and substituting "Within 30 days after the day the complaint is filed".

7

Section 24 is amended

(a) by striking out "or an officer or employee of the Commission designated by the executive director";

(b) in the English version, by striking out "he or she considers appropriate" and substituting "they consider appropriate";

(c) by striking out "the Commission has disposed of it" and substituting "it has been disposed of"; and

(d) by striking out "or the officer or employee".

8(1)

Subsections 24.1(1) to (3) are replaced with the following:

Executive director may explore settlement of complaint

24.1(1)

The executive director may attempt to resolve a complaint through mediation, conciliation or other means at any time before an adjudicator is appointed to hear the complaint.

Termination of proceedings on settlement

24.1(2)

If a complaint is settled on terms satisfactory to the complainant and respondent, the executive director must terminate the proceedings in respect of the complaint in accordance with the settlement.

Non-compliance with settlement

24.1(3)

Despite subsection (2), if the executive director determines that either party to the settlement has failed to substantially comply with the settlement terms, the executive director may, after giving written notice to the parties, re-open the proceedings and proceed as if no settlement had been reached.

8(2)

Subsection 24.1(4) is repealed.

9

Section 24.2 is amended by striking out "the Commission may try" and substituting "the executive director may try".

10

The following is added after section 24.2:

Executive director to determine reasonableness of offer

24.3(1)

If a respondent makes a settlement offer before an adjudicator is appointed to hear a complaint, the executive director must determine if the offer is reasonable.

Settlement offer not accepted

24.3(2)

If the complainant rejects a settlement offer that the executive director considers reasonable, the executive director must terminate the proceedings in respect of the complaint.

Offer must remain open

24.3(3)

An offer to settle a complaint that is disposed of under this section must remain open for acceptance for at least 15 days after the day notice of the disposition is given under section 30 or any longer period that the executive director considers reasonable in the circumstances.

11

Section 26 is replaced with the following:

Investigation of complaint

26(1)

Subject to subsection (2), as soon as is reasonably possible after a complaint has been filed, the executive director must cause the complaint to be investigated to the extent the executive director regards as sufficient for fairly and properly disposing of it in accordance with section 24.1, 24.3 or 29.

Dismissal of complaint without investigation

26(2)

The executive director may dismiss a complaint or part of a complaint without causing it to be investigated if the executive director is of the opinion that

(a) it is frivolous or vexatious;

(b) the acts or omissions described in it do not contravene this Code;

(c) it is not within the jurisdiction provided by this Code;

(d) its subject matter is being or has been dealt with appropriately according to a procedure provided for under another Act; or

(e) additional proceedings in respect of it would not benefit the person against whom this Code is alleged to have been contravened.

12

Section 28.1 is repealed.

13

Section 29 is replaced with the following:

Dismissal of complaint after investigation

29(1)

Following the completion of the investigation into a complaint, the executive director must dismiss the complaint or a part of the complaint if the executive director is satisfied that

(a) it is frivolous or vexatious;

(b) the acts or omissions described in it do not contravene this Code;

(c) it is not within the jurisdiction provided by this Code;

(d) its subject matter is being or has been dealt with appropriately according to a procedure provided for under another Act;

(e) additional proceedings in respect of it would not benefit the person against whom this Code is alleged to have been contravened; or

(f) the evidence in support of it is insufficient to substantiate the alleged contravention of this Code.

Adjudication or prosecution

29(2)

If a complaint is not otherwise disposed of in its entirety and the executive director is satisfied that additional proceedings in respect of the complaint would further the objectives of this Code or assist the Commission in discharging its responsibilities under this Code, the executive director must

(a) request the chief adjudicator to designate a member of the adjudication panel to adjudicate the complaint, in whole or in part; or

(b) recommend that the minister commence a prosecution for an alleged contravention of this Code.

Termination of proceedings

29(3)

If a complaint is not otherwise disposed of in its entirety and the executive director does not proceed under subsection (2), the executive director must terminate the proceedings in respect of the complaint.

Complaints may be combined

29(4)

If the executive director is satisfied that two or more complaints involve substantially similar issues of fact and law, the executive director may do one or both of the following:

(a) deal with the complaints together under this section;

(b) request the chief adjudicator to designate an adjudicator to adjudicate the complaints, in whole or in part, together in a single hearing.

14

Section 30 is replaced with the following:

Notification of disposition

30

After disposing of a complaint under subsection 24.1(2) or (3), section 24.3, subsection 26(2) or section 29, the executive director must send written notice of the disposition to each party by regular mail to the party's last known address. The notice is deemed to have been given seven days after the day it was mailed.

15

The following is added after section 30:

Application for review by Commission

30.1(1)

A complainant may apply to the Commission for a review of a decision made by the executive director

(a) to terminate proceedings after a settlement offer is made, under section 24.3;

(b) to dismiss a complaint or part of a complaint without an investigation, under subsection 26(2);

(c) to dismiss a complaint or part of a complaint after an investigation, under subsection 29(1); or

(d) to terminate proceedings without an adjudication or prosecution, under subsection 29(3).

Application requirements

30.1(2)

The application must be filed on a form approved by the Commission within 30 days after the day the complainant is given notice of the disposition under section 30 or within any longer period allowed by the Commission.

Application given to respondent

30.1(3)

The executive director must give a copy of the application to the respondent.

Commission to sit in panels

30.2(1)

The chairperson must designate three members of the Commission to sit as a panel of the Commission to consider an application for review filed under section 30.1.

Chairperson on panel

30.2(2)

A panel designated under subsection (1) may include the chairperson.

Jurisdiction of panel

30.2(3)

When considering an application and reviewing the decision,

(a) a panel has all the jurisdiction of the Commission and may exercise the Commission's powers and perform its duties; and

(b) a decision of a majority of the members of a panel is the decision of the Commission.

Decision

30.3(1)

Upon considering an application for review filed under section 30.1, the Commission may

(a) confirm the decision of the executive director to terminate proceedings or dismiss the complaint;

(b) make any decision that in its opinion ought to have been made by the executive director; or

(c) if the decision was made under section 24.3 or 29, refer the complaint or part of the complaint back to the executive director for further investigation in accordance with any direction that the Commission may give.

Decision after further investigation

30.3(2)

If the Commission refers the complaint or part of the complaint for further investigation,

(a) the executive director must provide the Commission with a written report satisfactory to the Commission setting out the findings of the investigation and any responses received under section 28 (parties' representations re investigation) in respect of the findings; and

(b) the Commission must, after considering the report, dispose of the application in accordance with clause (1)(a) or (b).

Decision based on written record

30.3(3)

In disposing of an application for review filed under section 30.1, the Commission may consider only the application, the written record of the executive director's decision and, if the executive director provides a report under subsection (2), the report.

Notification of disposition

30.4

After disposing of an application for review filed under section 30.1, the Commission must send each party written notice of the disposition by regular mail to the party's last known address.

16(1)

Subsection 32(1) is amended

(a) by striking out "clause 29(3)(a) or (3.1)(b)" and substituting "clause 29(2)(a) or (4)(b)"; and

(b) by striking out ", in accordance with the procedure prescribed under subsection (2),".

16(2)

Subsection 32(1.1) is amended by striking out "clause 29(3.1)(b)" and substituting "clause 29(4)(b)".

16(3)

Subsection 32(2) is repealed.

17

Section 33 is amended by striking out "The Commission shall" and substituting "The executive director must".

18

The following is added after section 33:

Hearing date

33.1(1)

Upon being appointed to hear a complaint, the adjudicator must schedule the earliest possible hearing date.

Time period for commencing hearing

33.1(2)

The hearing must be commenced within 120 days after the day the adjudicator is appointed, unless the adjudicator extends the time period at the request of a party.

19

The following is added after section 34:

Designating adjudicator to explore settlement

34.1(1)

After an adjudicator has been appointed to hear a complaint, the chief adjudicator may designate a different member of the adjudication panel to attempt to resolve the complaint through mediation, conciliation or other means prior to the hearing.

Adjudicator to determine reasonableness of offer

34.1(2)

If a respondent makes a settlement offer prior to the hearing, the adjudicator designated under subsection (1) must determine if the offer is reasonable.

Settlement offer not accepted

34.1(3)

If a complainant rejects a settlement offer that the adjudicator designated under subsection (1) considers to be reasonable, the adjudicator must terminate the adjudication to the extent that it relates to the parties to the offer.

Offer must remain open

34.1(4)

A settlement offer referred to in subsection (3) must remain open for acceptance for at least 15 days after the day the adjudicator makes a decision under that subsection or any longer period that the adjudicator considers reasonable in the circumstances.

Termination of proceedings on settlement

34.1(5)

If the complaint or part of the complaint is settled on terms satisfactory to the parties to the complaint or that part of it, the adjudicator designated under subsection (1) must

(a) document the terms of the settlement;

(b) make a consent order under subsection 43(5) in respect of the settlement; and

(c) terminate the adjudication in respect of the complaint or that part of the complaint in accordance with the settlement.

20

Section 37.1 is repealed.

21

Subsection 39(2) is amended by striking out "and the regulations" and substituting "and any rules established under subsection 8(6)".

22(1)

Subsections 41(1) to (3) are replaced with the following:

Time limit for making decision

41(1)

Subject to subsection (2), the adjudicator must make a final decision respecting the complaint within 60 days after the day the hearing is completed.

Extension

41(2)

On the written request of the adjudicator, the chief adjudicator may extend the time for rendering a final decision. The request must set out the reasons for the delay and indicate when the adjudicator proposes to render the decision.

Replacement of adjudicator

41(3)

When an adjudicator has failed to render a final decision within the time required under this section, the chief adjudicator may revoke the designation of the adjudicator and designate a new adjudicator to hear the complaint.

22(2)

Subsections 41(4) and (6) are amended by striking out "clause (2)(b) or".

22(3)

The following is added after subsection 41(6):

New hearing completed

41(6.1)

The hearing by the new adjudicator is considered complete for the purpose of subsection (1) when the materials have been delivered and the submissions made.

22(4)

Subsection 41(7) is amended

(a) in the English version, by striking out "his or her designation" and substituting "their designation"; and

(b) by striking out "clause (2)(b) or".

22(5)

Subsection 41(8) of the English version is amended by striking out "within 60 days of the completion of the hearing" and substituting "within 60 days after the day the hearing is completed".

23(1)

Clause 43(2)(c) is amended by adding ", subject to subsection (2.1)," after "such amount".

23(2)

The following is added after subsection 43(2):

Maximum damages for injury

43(2.1)

The amount of damages for injury to dignity, feelings or self-respect ordered by an adjudicator under clause (2)(c) must not exceed $25,000 and must be proportionate to the seriousness of the contravention and its effects on the party.

24(1)

Subsection 46(1) is amended by striking out "Every decision or order" and substituting "Subject to subsection (1.1), every decision or order".

24(2)

The following is added after subsection 46(1):

Oral decision

46(1.1)

An adjudicator may make a decision or order on an oral basis before issuing it in writing under subsection (1), except for a remedial order under subsection 43(2) or a final decision respecting a complaint.

Date of decision

46(1.2)

For the purpose of subsection 50(2) (time limit for judicial review application), a decision or order is deemed to be made on the day it is issued in writing.

24(3)

Subsection 46(2) is amended by adding "written" before "decision".

25(1)

Subsection 50(2) is amended by striking out "shall be made within 30 days of the making of the decision or order in question" and substituting "must be made within 30 days after the day the decision or order is made".

25(2)

Subsection 50(3) is amended by striking out "shall, within seven days of the filing of the application" and substituting "must, within seven days after the day the application is filed".

26

Clause 59(1)(d) is amended by adding "or attempting to resolve" after "adjudicating".

27

Section 60 is amended, in the part before clause (a),

(a) by adding "the executive director's or" after "some or all of"; and

(b) by striking out "section 24.1 or 29" and substituting "section 24.1, 24.3, 26, 29 or 30.3".

28

Section 63.1 is amended by adding "and an application form for reviews of the executive director's decisions by the Commission" at the end.

Transitional

29(1)

Subject to subsections (2) to (4), this Act applies to a complaint filed under The Human Rights Code, but not finally disposed of, before the day this section comes into force (referred to in this section as an "existing complaint").

29(2)

Section 33.1, as enacted by section 18 of this Act, applies to an existing complaint only if the adjudicator is appointed to hear the complaint on or after the day this section comes into force.

29(3)

If an adjudicator has been designated under section 37.1 in respect of an existing complaint before the day this section comes into force, the adjudicator is deemed to have been designated by the chief adjudicator under subsection 34.1(1), as enacted by section 19 of this Act.

29(4)

Subsection 43(2.1), as enacted by subsection 23(2) of this Act, applies to an existing complaint only if an adjudicator has not issued a final decision on the complaint before this section comes into force. For this purpose, a final decision includes a determination under section 37.1 that a settlement offer is reasonable.

Coming into force

30

This Act comes into force on a day to be fixed by proclamation.