Complainants can request remedies for violations of human rights legislation in different ways. Human rights tribunals have extensive authority and responsibility to eliminate discrimination. Therefore, they can request a party to a proceeding to take any measures, along with future practices, to encourage compliance (Arleen Huggins et al., “Individual Human Rights Remedies” (2017), online: <https://kmlaw.ca/wp-content/uploads/2018/01/AH_Individual-Human-Rights-Remedies-by-Arleen-Huggins-May-1-17.pdf> at 2 (Huggins)).

In the beginning, human rights legislation dealt with discrimination as a crime; victims were usually unwilling to commence proceedings, and cases were hard to prove. In his 1994 Report on Human Rights in British Columbia, Bill Black stated:

The earliest human rights statutes relied on criminal penalties for enforcement. The safeguards that rightly apply to criminal proceedings, such as proof beyond a reasonable doubt and the right to remain silent, proved to be almost insurmountable barriers to proof that conduct had a discriminatory purpose. The Criminal Code prohibits certain conduct that constitutes discrimination in extreme forms. For example, sexual assault is a crime, as is advocacy of genocide and willful promotion of hatred. But as applied to less blatant forms of discrimination, the criminal approach has not succeeded. (Heather M. MacNaughton &Jessica Connell, “Remedies in the Human Rights Context” (2009), online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006540> at 476 [MacNaughton & Connell]).

To avoid the above problems, governments adopted fair accommodation and employment legislation that applied compensatory damages instead of criminal sanctions. According to these statutes, a human rights complainant is helped by public officials who evaluate, investigate and mediate complaints. When mediation does not work, a board of inquiry or tribunal is appointed to hear the complaint.

These statutes designated public officials responsible for assisting a human rights complainant by assessing, investigating and mediating complaints. If mediation failed, a board of inquiry or tribunal could be appointed to hear the complaint and order a remedy [MacNaughton & Connell]).

However, most tribunals do not have the authority to enforce their own orders. Some tribunals can “enforce monetary obligations, such as requiring unpaid wages or family maintenance to be paid, imposing liens, making garnishment orders, seizing assets, or even suspending driving privileges,” but that is rare. Any enforcement powers given to a tribunal must be recognized in its enabling statute (Cristie Ford, “Remedies in Canadian Administrative Law: A Roadmap to a Parallel Legal Universe” (2018), online: The Peter A. Allard School of Law Allard Research Commons <https://commons.allard.ubc.ca/cgi/viewcontent.cgi?article=1473&context=fac_pubs> at 17) (Ford)).

Some tribunals, such as adjudicative and regulatory bodies, can have the authority to enforce their own orders, but that is not usually the case. Tribunals or a parties to a proceeding have to apply to courts to enforce tribunals’ decisions on those who fail to comply (Thomas S. Kuttner, “Administrative Tribunals in Canada”, online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/administrative-tribunals>[Kuttner].

The enforcement method depends on the nature of the order being enforced, which will be regulated by the province’s rules of court, civil procedure, legislation and or the common law. The mechanism of enforcement will determine the length of time the enforcement process will take (Frank Walwyn and Kayla Theeuwen, “Enforcement of judgments and arbitral awards in Canada: overview”, online: Thomson Reuters, Practical Law <https://ca.practicallaw.thomsonreuters.com/1-619-0729?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1>).

Tribunal orders – including human rights tribunals - may only be enforced by a civil action in civil courts. Since these tribunals do not have the authority to enforce their orders, it is sometimes difficult to get any remedies and it is hard to predict the outcomes of non-compliance when there are no enforcement measures in the legislation.

II Human Rights Tribunals are Administrative Tribunals

In Canada, statutes create administrative tribunals to deal with “issues such as transportation, labour relations, the environment, etc.” The statutes mentions their role, powers, composition and degree of independence from government. (John D. Richard, “Administrative Tribunals in Canada - An Overview - (2007), online: <http://www.aihja.org/images/users/ARCHIVES/docutheque-docs/EReportCanada2.pdf> at 1 [Richard]).

A Definition and Role of Administrative Tribunals

Administrative tribunals in Canada established by federal or provincial legislation make decisions on behalf of federal and provincial governments when it is impractical or inappropriate for the government to do so itself.

According to the Canadian Encyclopedia, “tribunals are commonly known as commissions or boards and make decisions about a wide variety of issues, including disputes between people or between people and the government. Tribunals may also perform regulatory or licensing functions. The courts may review tribunal decisions; because tribunals engage in fact-finding and have the power to impact personal rights, and they are considered as “quasi-judicial” (Kuttner).

Law reform commissions, provincial securities commissions, landlord and tenant boards, labour relations boards, human rights tribunals, ad hoc administrative tribunals (such as arbitrators and inquiry commissions), are examples of administrative tribunals (Kuttner).

In Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), the Supreme Court of Canada talked about the important role of administrative tribunals:

They regulate many aspects of our life, from beginning to end. Hospitals and medical boards regulate the methods and practice of the doctors that bring us into this world. Boards regulate the licensing and the operation of morticians who are concerned with our mortal remains. Marketing boards regulate the farm products we eat; transport boards regulate the means and flow of our travel; energy boards control the price and distribution of the forms of energy we use; planning boards and city councils regulate the location and types of buildings in which we live and work. In Canada, boards are a way of life. Boards and the functions they fulfil are legion (Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 SCR 623).

Administrative tribunals function within the limits of their statute, the Constitution and the rules and obligations required by the courts (Richard).

The enabling statutes of tribunals must provide the remedies that tribunals can lawfully grant, since tribunals do not have the same powers as courts. Tribunal remedies are also different from court remedies since their composition, mandates, and structure differ. “Whether a tribunal can order that, for example, a party pay monetary damages, impose an administrative penalty, or strip an individual of a licence will depend on the remedial powers the statute provides to it” (Ford).

As mentioned previously, administrative tribunals are independent of governments, and their orders must be neutral and free from any influence. Thus, if a party to a proceeding finds the tribunal decision unfair, they can appeal that decision to a court (Kuttner).

B Administrative Tribunals in Alberta

In Alberta, people are protected from discrimination by the Alberta Human Rights Act, which is enforced by the Alberta Human Rights Commission.

Human rights tribunals in Alberta are quasi-judicial tribunals that hold public hearings (adjudications) into human rights complaints that the Human Rights Commission Director, and staff cannot determine.

The Director informs the Chief of the Commission and Tribunals that the parties to a complaint cannot settle the issue. Consequently, the Commission and Tribunals’ Chief nominates a human rights tribunal to hold a public hearing about the complaint. The Chief of the Commission and Tribunals can also name a human rights tribunal when a complainant “asks for a review of a dismissal or discontinuance and the Chief of the Commission and Tribunals decides that the Director should not have dismissed or discontinued the complaint.” Members of the Commission are appointed by the Chief of the Commission and Tribunals to serve on the human rights tribunal (Alberta Human Rights Commission, Quick facts about Commission complaint resolution processes, online: Alberta Human Rights Commission https://albertahumanrights.ab.ca/complaints/process/Pages/quick_facts_complaint_process.aspx).

The Alberta Human Rights Tribunal has authority under the Alberta Human Rights Act to decide whether there has been a violation of the Act. The tribunal will dismiss a complaint if it finds there was no contravention. However, the tribunal can order a remedy if it finds that there has been a contravention of the Act (Alberta Human Rights Commission, Tribunal process, online: Alberta Human Rights Commission <https://www.albertahumanrights.ab.ca/tribunal_process/Pages/tribunal_process.aspx>).

III Human Rights Remedies

The Latin maxim “ubi jus ibi remedium”, which means where there is a right, there is a remedy, applies to administrative tribunals that must defend fundamental human rights (MacNaughton & Connell).

Tribunals can grant remedies for breaches of human rights legislation in different ways. Human rights tribunals have comprehensive authority, under human rights legislation, to deal with and compensate for discrimination. They have the right to ask any party in a proceeding to take the right measures to encourage compliance, along with handling (managing) future practices (Arleen Huggins et al., “Individual Human Rights Remedies” (2017), online: <https://kmlaw.ca/wp-content/uploads/2018/01/AH_Individual-Human-Rights-Remedies-by-Arleen-Huggins-May-1-17.pdf> at 2) (Huggins).

Since tribunals do not have the same authority as courts, the remedies that they grant must be in the tribunal’s enabling statute. A tribunal must get authority from its statute to make orders affecting people’s rights. Therefore, to grant remedies, a tribunal must look at its statute and must not exceed its jurisdiction; otherwise, its orders will be void. Also, “most tribunals’ composition, structure, and mandates are different from courts, and their approach to remedies reflects those differences” (Huggins).

A Purpose of Human Rights Remedies

Some tribunals have broad authority, according to their statutes, to grant any proper remedies. For example, the Ontario Human Rights Tribunal can request, according to the Ontario Human Rights Code, any party who was found to discriminate to “do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices” (Huggins).

The purpose of human rights remedies is not to punish the person who violated the Human Rights Act. Enabling statutes create human rights tribunals to be remedial, not punitive. They grant remedies to put the person who suffered discrimination back in the same position they would have been in had the discrimination not taken place (Alberta Human Rights Commission, “Quick facts about Commission complaint resolution processes”, online: Alberta Human Rights Commission <https://www.albertahumanrights.ab.ca/complaints/process/Pages/quick_facts_complaint_process.aspx>).

Courts have also recognized that the purpose of human rights legislation is remedial rather than punitive.

In Giguere v Popeye Restaurant, the Court held that:

Public interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and ensure future compliance, are achieved in the particular circumstances (Giguere v Popeye Restaurant, 2008 HRTO 2 (CanLII) at para 91).

Also, in Ont. Human Rights Comm. v Simpsons-Sears, the Supreme Court of Canada stated:

The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant” (Ont. Human Rights Comm. v Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at para 12).

Moreover, since the purpose of human rights legislation is to eliminate discrimination and not punishing the person who contravened the Act, the intentions of those who discriminate are not important and discriminatory intent is not required to find a violation of the Act (MacNaughton & Connell).

B Human Rights Remedies in Alberta

In Alberta, if there was a violation of the Alberta Human Rights Act, remedies can be granted to compensate the complainant for the losses. Remedies can also require the respondent to take specific actions to avoid any future violations of the Act.

Section 32(1) of the Alberta Human Rights Act mentions the tribunal’s powers (Alberta Human Rights Act, RSA 2000, c A25-5, s 32(1)):

32(1) A human rights tribunal

(a) shall, if it finds that

(i) a complaint is without merit, order that the complaint be dismissed, or

(ii) a part of a complaint is without merit, order that the part be dismissed,

and

(b) may, if it finds that a complaint has merit in whole or in part, order the person against whom the finding was made to do any or all of the following:

(i) to cease the contravention complained of;

(ii) to refrain in the future from committing the same or any similar contravention;

(iii) to make available to the person dealt with contrary to this Act the rights, opportunities or privileges that person was denied contrary to this Act;

(iv) to compensate the person dealt with contrary to this Act for all or any part of any wages or income lost or expenses incurred by reason of the contravention of this Act;

(v) to take any other action the tribunal considers proper to place the person dealt with contrary to this Act in the position the person would have been in but for the contravention of this Act (Alberta Human Rights Act, RSA 2000, c A25-5, s 32(1)).

Losses experienced by a complainant determine the remedies granted by the tribunal. The tribunal also looks into whether or not to award any non-monetary remedies in order to stop any future discrimination. The tribunal can also rely on previous human rights decisions to determine remedies.

The Alberta Human Rights Commission states:

The specific factors of each complaint will be considered when determining a remedy. Tribunal and court decisions have considered several factors, including:

· the nature of the contravention,

· the frequency and intensity of the contravention,

· the vulnerability of the complainant, and

· the impact on the complainant.

The steps the complainant took or could have taken to minimize losses, such as looking for or accepting a job, will also be considered.

For example, if a complainant has lost his or her job because of their race, remedies may include one or more of the following:

· a verbal or written apology to the complainant;

· a job reference for the complainant;

· an agreement or order that the respondent stop the behaviour and take steps to ensure that the behaviour will not happen again;

· reinstatement of the complainant to their former job;

· financial compensation to the complainant for lost income and benefits as well as for general damages for injury to dignity and self-respect;

· participation by the respondent in a human rights education activity; and

· development and implementation of an anti-discrimination policy in the workplace (Alberta Human Rights Commission, “Remedy”, online: Alberta Human Rights Commission <https://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/sheets/complaints/Pages/remedy.aspx>) (Remedy).

A remedy can be financial or non-financial. As mentioned earlier, the intent of remedies is not to punish the respondent but to reinstate the complainant to the position they would have been in if a breach of the Act had not happened. Remedies can include “money for loss of wages or injury to dignity and self-respect, an apology, a change in policy, or participation in a human rights education activity” (Remedy).

C The Remedy of Reinstatement

In some circumstances, tribunals can order employers to give their dismissed employees their job back or any other position—this is what we call reinstatement. Reinstatement is basically the return of an employee to his or her previous position after “termination, layoff, leave of absence or a strike” (Kurt S. Decker, “Reinstatement: A Remedy for an Employer ' s Violation of a Handbook or Written Employment Policy” (1985), online: Hofstra Labor and Employment Law Journal <https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1016&context=hlelj> at 11.)

Reinstatement is a powerful remedy. Usually, employees get reinstated and get compensated for any lost income they incurred due to their dismissal. Since reinstatement may be a financial burden and can force employers to re-hire a person they basically want to terminate, employers usually try to settle the issue in favour of the employee. (Monkhouse Law, “You’re Fired! Or Are You? Reinstatement as a Remedy for Non-Unionized Employees” (2016), online: Monkhouse Law <https://www.monkhouselaw.com/youre-unfired-reinstatement-in-ontario-toronto-employment-lawyer/>).

Moreover, according to the Court decision in Hamilton-Wentworth District School Board v Fair, 2016 ONCA 421 (CanLII) at para 95, there is no legislative limit on the maximum time that can elapse before the reinforcement of a tribunal reinstatement remedy.

The Ontario Court of Appeal held:

The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent. In the present case, the Tribunal found none of the barriers to reinstatement that foreclosed reinstatement in the Ford Motor case. Specifically, Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

The remedy of reinstatement is usually uncommon and unwanted by many employers and employees. However, this remedy does take place in some situations.

IV Enforcement Mechanisms of Human Rights Tribunal Orders

Once a tribunal makes a decision and orders some remedies, and no one disputes that decision, complainants must then move on to the enforcement of the decision/orders.

In a complaint, the respondent is required to follow the tribunal orders within a reasonable period of time. In some cases, the order gives the respondent a particular time to comply with the order; if it does not, the reasonable time will depend on the circumstances of the case (Human Rights Legal Support Centre, “Enforcing Your Tribunal Order or Settlement”, online: Human Rights Legal Support Centre <https://www.hrlsc.on.ca/en/publications-resources/information-sheets-guides/enforcing-your-tribunal-order-or-settlement> (Human Rights Legal Support Centre).

People usually think that once the tribunal makes a decision, the complainant will get their remedies from the respondent, which is the end of the dispute. However, that is not always the case, and the tribunal order can commence a long struggle to get the respondent to comply with the order. If the respondent does not do whatever they were supposed to do, the applicant will need to know how to enforce the tribunal order (Human Rights Legal Support Centre).

In some cases, the respondent in a human rights case is the provincial or federal government. One of the most infamous recent situations involved the challenges in enforcement of a series of Canadian Human Rights Tribunal orders (see, for example, First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) 2012 CHRT 28 (CanLII)).

Since January 2016, the Canadian Human Rights Tribunal has issued several remedial non-compliance orders against Canada for failing to abide by the original decision and implement the proper definition of Jordan's Principle.

According to the Government of Canada:

Jordan's Principle makes sure all First Nations children living in Canada can access the products, services and supports they need, when they need them. Funding can help with a wide range of health, social and educational needs, including the unique needs that First Nations Two-Spirit and LGBTQQIA children and youth and those with disabilities may have.

Jordan's Principle is named in memory of Jordan River Anderson. He was a young boy from Norway House Cree Nation in Manitoba (Jordan’s Principle, https://www.sac-isc.gc.ca/eng/1568396042341/1568396159824).

A number of orders issued after applications to the Canadian Human Rights Tribunal specified to whom and when the Jordan Principle applied (e.g., to First Nations Children not living on reserves). In 2019, the Canadian Human Rights Tribunal issued an order on compensation (2019 CHRT 39). The Tribunal ruled that First Nations children and their families would receive the maximum compensation through the Canadian Human Rights Act ($40,000) for Canada's "wilful and reckless" discrimination, referring to it as a worst-case scenario under the Act. Canada was ordered to compensate certain First Nations children, and their parents or grandparents, who were affected by the discriminatory treatment in child welfare services since January 1, 2006 or were denied or experienced delays in services covered under Jordan's Principle since November 2, 2017. In 2019, the Government of Canada applied to the federal court for judicial review of this compensation order. In July 2020, a ruling (2020 CHRT 20) ordered Canada to immediately recognize First Nations children who will become eligible for Indian Act status. The Tribunal found two further categories of First Nations children who would become eligible for Jordan's Principle following a further order: 1. First Nations children without Indian Act status who are recognized by their respective First Nations; and 2. First Nations children who do not have Indian Act status and who are not eligible for Indian Act status but have a parent/guardian who is.

On December 22, 2020, Canada filed for judicial review of the 2020 CHRT decisions. However, this appeal was put on hold pending negotiations between First Nations and the Canadian Government. On July 4, 2022, the federal government announced a $20-billion final settlement agreement to compensate First Nations children and families harmed by chronic underfunding of child welfare on reserve (“Canada signs a $20-billion compensation agreement on First Nations child welfare” https://www.ctvnews.ca/politics/canada-signs-20b-compensation-agreement-on-first-nations-child-welfare-1.5973603).

This series of cases demonstrate the challenges behind enforcing human rights orders.

A In Alberta

The Alberta Human Rights Tribunal does not have the power to enforce its own decisions. Therefore, complainants have to follow a specific process in order to enforce the tribunal order.

Section 36 of the Alberta Human Rights Act states:

An order made by a human rights tribunal may be filed with the clerk of the Court of Queen’s Bench at the judicial centre closest to the place where the proceeding was held, and on being entered it is enforceable in the same manner as an order of the Court of Queen’s Bench.

In general, when someone gets a court judgment against another person, that does not mean it is the end of the proceeding. If the party that there was a judgment against—debtor—does not comply with the judgment and pay the other party—creditor—the amount granted by the judgment, the creditor has to take some measures to enforce the judgment. The court does not pay the money awarded in the judgment and does not help in collecting the money. The creditor has to enforce the judgment at its own expense (this might be added to the amount the debtor has to pay) in the Court of Queen’s Bench (Alberta Courts, “Getting and Enforcing Your Judgment in Alberta”, online: Alberta Courts <https://www.albertacourts.ca/docs/default-source/pc/getting-and-enforcing-your-judgment-in-alberta.pdf?sfvrsn=580ead80_4> at 3 [Alberta Courts].

According to Alberta Courts:

The first step in all of these processes is to file your Judgment at the Court of Queen’s Bench in the Judicial Centre where the Judgment was obtained. If you have obtained your Judgment in Provincial Court Civil, a certified copy will be mailed to you and to the debtor. You must file the Certificate of Judgment with the Court of Queen’s Bench if you wish to use either of these enforcement processes. You then prepare a Writ of Enforcement. (Alberta Courts, at 5).

To enforce a judgment, the interested party must file a Writ of Enforcement with the Clerk of the Court of Queen’s Bench and then register the Writ with the Personal Property Registry (PPR). This procedure also gives the creditor the right to share in money paid to the Clerk due to a garnishment procedure, where the court diverts money owed to the debtors to their creditors or a Civil Enforcement Agency as a result of a seizure process initiated by other Enforcement Creditors (Alberta Courts, at 5-12). See also: Civil Enforcement Act, RSA 2000, c C-15.

So, to enforce a human rights tribunal order, a complainant has to follow all these procedures since there are no enforcement mechanisms for these orders in the human rights legislation.

B The McKinnon Case

McKinnon v Ontario (Correctional Services) 2007 HRTO 4 (CanLII) [the McKinnon Case] shows how ineffective enforcement mechanisms in human rights law are. As in Alberta, the Ontario Human Rights Tribunal cannot enforce its orders. Section 19(1) of the Statutory Powers Procedures Act (Alberta Courts, at 5) in Ontario states:

A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed an order of that court and is enforceable as such.

Since Ontario does not have a proper enforcement method of its human rights tribunal orders, Michael McKinnon had to file many human rights complaints to the Ontario human rights tribunal to enforce his employer’s compliance with the tribunal orders.

In the McKinnon case, Michael McKinnon, the complainant, was of Indigenous descent and a correctional officer with the Ministry of Correctional Services. In 1988, Mr. McKinnon filed three internal complaints (McKinnon v Ontario, online: Queen’s University, Human Rights Advisory Services <https://www.queensu.ca/humanrights/hrlg/meeting-headlines/meeting-7/mckinnon> (McKinnon)).

According to the Human Rights Tribunal of Ontario (then the Board of Inquiry) in 1998, Mr. McKinnon “suffered discrimination and harassment at his workplace, the Toronto East Detention Centre, because of his race, ancestry, and ethnic origin.” Thus, the tribunal ordered some “systemic remedies to address a poisoned atmosphere” including the relocation of specific respondents, that the respondent inform corrections employees of the order and the establishment of a human rights training. In 2002, the tribunal met again after Mr. McKinnon alleged that the “poisoned work environment had not improved.” The tribunal looked into whether the respondent had implemented existing systemic remedies in good faith. It did not look into whether the respondents fulfilled these remedies in a strict sense (McKinnon).

The tribunal ordered new remedies “including training for ministry and facility management; establishing a roster of external mediators to deal with discrimination complaints; and appointing, at the Ministry’s expense, an independent third-party consult nominated by the Ontario Human Rights Commission to develop and oversee the delivery of training programs ordered. The Ministry would pay for the third-party consultant and it would report to the tribunal. These remedies were different from any traditional legal remedies, such as compensation or overturning a ministry decision (McKinnon).

In 2007, the tribunal found that the Ministry had not been complying with the tribunal’s former orders in good faith. In 2011, the tribunal found that the Deputy Minister was in contempt for failing to implement the previous orders. The tribunal exercised its discretion to state a case for contempt to the Ontario Divisional Court. However, before that could be heard, and after 23 years of litigation, Mr. McKinnon and the Ministry finally settled. Under the 2011 settlement agreement, the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and the Ministry of Government Services all signed on to a three-year Human Rights Project. It established a “training program, imposed high-level responsibility for adhering to human rights obligations, and included all-important accountability mechanisms” (Ford Remedies).

As mentioned earlier, and since human rights tribunals do not have the power to enforce their orders, once a tribunal converts its order into a court order through one of the mechanisms mentioned above, the successful party can enforce the order in the same way as a court judgment. This enforcement procedure means that the court can begin contempt proceedings if the party fails to obey the order.

V Contempt of Court

Contempt of court is an old and exceptional remedy that makes sure that court orders are respected and obeyed. It is a method used to enforce court orders when a party is disobeying these orders. “To be in contempt in the eyes of the law is to be in disobedience of that self-same law. Contemptuous behaviour cannot be countenanced and must be severely punished” (Lisa Silver, “Casting Light into The Shadows: Finding Civil Contempt in the Envacon Decision” (2018), online: ABlawg.ca <https://ablawg.ca/2018/10/25/casting-light-into-the-shadows-finding-civil-contempt-in-the-envacon-decision/> (Silver)).

As explained by the Supreme Court in United Nurses of Alberta v Alberta (Attorney General):

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court (United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 90, at para 157(2)).

It is enough that a person has failed to comply with the order or has deliberately done the act that they were not supposed to do under the order. Being mistaken about an order’s content is not a defence to a claim of contempt (Neil Wilson, “Civil Contempt and Enforcement of Judgments: A Primer and Review of Recent Case Law” (2018), online: https://www.swlawyers.ca/wp-content/uploads/2019/08/Neil_Wilson-Civil_Contempt_and_Enforcement_of_Judgments.pdf> at 3 (Neil Wilson)).

The Supreme Court in Carey v Laiken stated:

Contempt of court “rest[s] on the power of the court to uphold its dignity and process. . . . The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect”: United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at p. 931. It is well established that the purpose of a contempt order is “first and foremost a declaration that a party has acted in defiance of a court order”: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 35, cited in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20.

Civil contempt has three elements that evidence must prove beyond a reasonable doubt: The first element is that the order a party allegedly breached “must state clearly and unequivocally what should and should not be done. The second element is that the party alleged to have breached the order must have had actual knowledge of it. Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels” (Neil Wilson).

A In Alberta

I Alberta Rules of Court

Civil contempt of court is found under Rules 10.51 to 10.53 of the Alberta Rules of Court (Alberta Rules of Court, 10.51-10.53, Alta Reg 124/2010), which give criteria for declaring a person in civil contempt, unless that person has a reasonable excuse not to follow the court order (Neil Wilson at 3))

Rule 10.52(3) reads:

A judge may declare a person to be in civil contempt of Court if (a) the person, without reasonable excuse, (i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge, (ii) is before the Court and engages in conduct that warrants a declaration of civil contempt of Court, (iii) does not comply with an order served on the person, or an order of which the person has actual knowledge, to appear before the Court to show cause why the person should not be declared to be in civil contempt of Court, (iv) does not comply with an order served on the person, or an order of which the person has actual knowledge, to attend for questioning under these rules or to answer questions the person is ordered by the Court to answer, (v) is a witness in an application or at trial and refuses to be sworn or refuses to answer proper questions, or (vi) does not perform or observe the terms of an undertaking given to the Court.

Rule 10.53 states:

(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of a judge: (a) imprisonment until the person has purged the person’s contempt; (b) imprisonment for not more than 2 years; (c) a fine and, in default of paying the fine, imprisonment for not more than 6 months;

…

(2) The Court may also make costs award against a person declared to be in civil contempt of Court.

These Rules talk about the process used to bring the alleged contemnor (person who shows contempt) before the court and the method for finding a person in contempt, and the possible punishment such as imprisonment “until the person has purged the person’s contempt” (Silver).

Also, the Alberta Court of Appeal in Envacon Inc v 829693 Alberta Ltd confirmed the test for contempt, set out by the Supreme Court of Canada in Carey v Laiken:

· the order must state clearly and unequivocally what should be done (or not done);

· the alleged contemnor must have actual notice of the order; and

· the alleged contemnor must have intentionally failed to do the act compelled by the order. (Envacon Inc v 829693 Alberta Ltd, 2018 ABCA 313 (CanLII) at paras 37-38).

ii Model Code of Powers and Procedures for Administrative Tribunals

In 1999 and 2008, Alberta Law Reform Institute (ALRI) proposed a Model Code of powers and procedures for administrative tribunals with an adjudicative purpose. The reason was that there were several issues regarding the powers and procedures of administrative tribunals. The Model Code was “consistent with the requirements of procedural fairness and efficiency and drew from reform proposals in other jurisdictions” (Alberta Law Reform Institute, Powers and Procedures of Administrative Tribunals, online: <https://www.alri.ualberta.ca/wp-content/uploads/2020/06/cm013.pdf> at v [Alberta Law Reform Institute]).

The ALRI mentioned that “The Administrative Procedures Act (APA) provided a set of rules to guide tribunals as to how to conduct their decision-making functions.” But the APA had several problems, such as the statute was outdated since it was enacted in 1966 and stayed the same. Also, “its provisions did not reflect developments in the common law requirements of fairness and in tribunal practices” (Alberta Law Reform Institute at 2).

Therefore, the Model Code stated in section i:

For many tribunals, a provision allowing them to obtain orders for contempt to enable them to enforce their orders would be useful. It is generally preferable if such a provision requires application to a court, rather than placing the power to punish for contempt in the tribunal themselves, i.e., by imposing a fine, or placing restrictions on participation. Court involvement is particularly preferable where the liberty of a person is at stake and it also avoids having the tribunal act as both prosecutor and judge (Alberta Law Reform Institute at 87).

Unfortunately, this Model Code was not adopted by the Alberta Government. Currently, the Administrative Procedures and Jurisdiction Act RSA 2000, c A-3 has limited application to tribunals and does not have any provision related to administrative tribunal orders.

B Section 127 of the Criminal Code

In addition to the Alberta Rules of Court, the Canadian Criminal Code applies if a person fails to comply with a tribunal order.

Section 127(1) of the Criminal Code of Canada, RSA 2000, c A-3 states:

Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

However, section 127 applies only where law does not expressly provide another penalty:

Usually, administrative tribunals do not have the authority to make contempt orders on their own. Therefore, the Criminal Code provisions should apply where no ‘punishment or other mode of proceeding’ is explicitly set out in the tribunal's enabling statute (Cristie Ford).

This is made in order to respect the separation of powers since provincial tribunals make decisions that are non-criminal only.

Lisa Silver adds:

Section 127 creates a blanket offence for when any person, ‘without lawful excuse,’ ‘disobeys’ a court order, other than an order for monetary compensation. As worded, this offence can apply for non-compliance of a civil court order. Even so, this offence, although broadly engaged, is an offence of last resort. It cannot be utilized if there is another recourse, ‘expressly provided by law,’ available (Lisa Silver).

In R v Nielsen, the Court of Appeal of Alberta ruled that Alberta Rules of Court are not an exception under section 127(1) of the Criminal Code. The Court of Appeal stated:

The Supreme Court of Canada addressed the section 127 exception in the context of Ontario legislation in R v Gibbons, 2012 SCC 28, [2012] 2 SCR 92. It found that the Ontario Rules of Civil Procedure, RRO 1990, Reg 194 did not meet the requirements for the exemption. In arriving at its decision, the Supreme Court reviewed its earlier decision in R v Clement, 1981 CanLII 212 (SCC), [1981] 2 SCR 468 where it held that the term “lawful order” in section 127 referred to court orders that were either criminal or civil in nature, and that the “law” had to be statutory. In Clement, the court noted that something “inherent” was not, by its nature, also “express” and concluded that the Manitoba Rules were insufficient to invoke the exemption in section 127 because the common law, and not the rules, continued to provide the legal foundation for a proceeding for contempt of court.

In Gibbons, the court continued provided that the exception in section 127 would be triggered where the legislature has:

a. provided a legal foundation for the court’s power to issue contempt orders,

b. defined the circumstances in which a person will be found in contempt; and

c. provided a specific punishment or mode of proceeding (R v Nielsen, 2014 ABCA 173 (CanLII) at paras 5-6 [R v Nielsen]).

The Court of Appeal added:

… there is a real issue as to whether the Alberta Rules of Court trigger the exception to conviction under section 127 of the Criminal Code. Certainly it is arguable that a mode of proceeding is established by the Rules of Court and that is sufficient to meet the third requirement. Moreover, the maximum term of imprisonment distinguishes this case from Gibbons. In addition, although the court has discretion to impose a fine and order costs under Rule 10.53, this power is founded in the Rules of Court (R v Nielsen at para 18).

Therefore, section 127 of the Criminal Code is not applicable if a person disobeys a tribunal order in Alberta. Only the Alberta Rules of Court apply.

VI Enforcement of Orders under Other Laws

While human rights tribunals—as mentioned earlier—cannot enforce their own decisions, other laws in Alberta and in other jurisdictions give their boards and directors of compliance and inspectors the right to impose penalties for non-compliance.

A Employment Standards Code

Another Alberta piece of legislation has built in enforcement provisions—the Employment Standards Code, RSA 2000, c E-9. The Employment Standards Code (ESC) sets the minimum employment standards in Alberta, and the rights and responsibilities of employees and employers. The legislation applies to approximately 85% of the province’s workers and business owners.

Alberta’s ESC contains provisions for enforcement through audits, inspections, penalties, prosecutions, and judgment collection. Failure to comply will result in administrative penalties and may lead to prosecution (ESC, Part 4, 4.1 and Part 5).

B Accessibility Acts in Canada, Ontario, Manitoba, Nova Scotia and British Columbia

Some Canadian provinces—Ontario, Manitoba, Nova Scotia and British Columbia— and the federal government have enacted accessibility laws where directors of compliance or inspectors can issue orders requesting an individual or organization to comply with an accessibility standard, pay an administrative penalty or both. These may act as models for enforcement of human rights tribunal orders,

Ontario and Manitoba Acts are similar, with minor differences in the details. The enforcement process starts with voluntary compliance by entities subject to the standard. It then moves to inspections and the imposing of administrative penalties with the entity’s right under inspection to appeal the penalty (Laverne Jacobs, “The Interplay Between Human Rights and Accessibility Laws: Lessons Learned and Considerations for the Planned Federal Accessibility Legislation” (2018), online: University of Windsor <https://scholar.uwindsor.ca/lawpub/51/> at 20) (Laverne Jacobs).

According to Laverne A. Jacobs, there might be some differences among the provinces, but the steps related to compliance orders are similar:

The issuing of an order of compliance, with or without an order for an administrative penalty, for not meeting reporting requirements or for a substantive violation of the standard; a notice that further administrative penalties may result from the failure to comply will also be given; an opportunity for the entity that has received the order to ask for a review or reconsideration from the director of compliance who, in turn, may confirm, vary or rescind the order; a further opportunity for an appeal to an external tribunal or the superior court (Laverne Jacobs).

I Ontario Accessibility Act

Section 21 of the Accessibility for Ontarians with Disabilities Act, SO 2005, c 11 states:

(3) If a director concludes that a person or organization has contravened section 14 or 17, the director may, by order, require the person or organization to do any or all of the following:

1. File an accessibility report that complies with the requirements under this Act within the time specified in the order, subject to subsection (4.1).

2. Provide the director with such reports or information as may be required under section 17 within the time specified in the order, subject to subsection (4.1).

3. Subject to subsection (6), pay an administrative penalty in accordance with the regulations.

(4) If a director concludes that a person or organization has contravened a provision of an accessibility standard or of any other regulation, the director may, by order, require the person or organization to do either or both of the following:

1. Comply with the accessibility standard or other regulation within the time specified in the order, subject to subsection (4.1).

2. Subject to subsection (6), pay an administrative penalty in accordance with the regulations.

(5) If a person or organization fails to comply with an order made under subsection (3) or (4) within the time specified in the order and no appeal of the order is made within the time specified in subsection 27 (1), a director may, subject to subsection (6), make an order requiring the person or organization to pay an administrative penalty in accordance with the regulations.

(6) An administrative penalty may be ordered under this section for one or more of the following purposes:

1. To encourage compliance with this Act or with an order made under this Act.

2. To prevent a person or organization from deriving, directly or indirectly, any economic benefit as a result of a contravention of this Act or the regulations.

3. To recover the costs of enforcing this Act and the regulations against the person or organization that is required to pay the administrative penalty.

In addition, subsection 23(1) states that:

if a person or organization fails to comply with an order to pay an administrative penalty within the time specified in the order and no appeal of the order is made within the time specified in subsection 27 (1), the order may be filed with a local registrar of the Superior Court of Justice and may be enforced as if it were an order of the court.

ii The Accessibility for Manitobans Act

Subsection 29(1) of the Accessibility for Manitobans Act CCSM c A1.7 reads:

If the director is of the opinion that a person or organization has failed to comply with an order made under section 27 within the time period specified in the order, he or she may issue a notice in writing requiring the person or organization to pay an administrative penalty in the amount determined in accordance with the regulations.

Section 31 states:

(1)Subject to an appeal under section 30, a person or organization required to pay an administrative penalty must pay the amount of the penalty within 30 days after the notice is served.

(2)The amount of the penalty is a debt due to the government if it is not paid

(a) within 30 days after notice of the penalty is served; or

(b) if the penalty is appealed, within 30 days after the decision on the appeal.

(3)The director may certify a debt referred to in subsection (2), or any part of such a debt that has not been paid. The certificate may be registered in court and may be enforced as if it were a judgment of the court.

(4)A person or organization who pays an administrative penalty for an incident of non-compliance may not be charged with an offence in respect of that non-compliance, unless the non-compliance continues after the penalty is paid.

In addition, section 34 states:

(1) A person is guilty of an offence who

(a) fails to

(i) prepare and keep records in accordance with the regulations, or

(ii) (ii) make those records available for inspection and examination;

(b) fails to comply with an accessibility standard as required under section 20.

iii Nova Scotia Accessibility Act

Section 55 of the Accessibility Act, SNS 2017, c 2 in Nova Scotia states:

(1) Subject to Section 56, where the Director is of the opinion that an individual or organization has failed to comply with an inspector’s order within the period specified in the order, the Director may issue a written notice requiring the individual or organization to pay an administrative penalty in the amount prescribed.

(2) Notice of an administrative penalty may only be issued after the period for appealing an order has expired or, where an appeal has been filed, after a decision has been made on the appeal.

(3) The notice of administrative penalty must be served on the individual or organization required to pay the penalty.

Section 56 reads:

No penalty may be issued by the Director more than three years after the act or omission that renders the individual or organization liable to a penalty first came to the knowledge of the Director.

And section 57 states:

(1) The Director may file a certificate with the Court signed by the Director and setting out (a) the amount of the administrative penalty issued; and (b) the individual or organization against whom the penalty is issued.

2) A certificate filed under this Section has the same force and effect as if it were a judgment obtained in the Court for the recovery of a debt in the amount set out in the certificate and may be enforced in the same manner as a judgment of the Court.

In the end, the accessibility legislation in the provinces allows for non-compliant individuals or organizations to face prosecution for an offence. (Note: the enforcement provisions in British Columbia’s accessibility legislation are not yet in force).

In Ontario, failing to comply with an order made by a director or the tribunal is an offence listed under the Accessibility for Ontarians with Disabilities Act. A conviction for the offence can lead to a maximum fine of $50,000 a day for individuals or $100,000 a day for corporations (section 37(3)).

In Manitoba, the Accessibility for Manitobans Act mentions that failing to comply with accessibility standards can lead to an offence with a maximum fine of $250,000 (section34(3)).

In Nova Scotia, the Nova Scotia Accessibility Act states that if a person or organization has paid an administrative penalty for an incident of non-compliance, they may not be charged with an offence concerning non-compliance unless the non-compliance continues after the penalty payment (section 58). A conviction for repeat violations of the Act, of the standards or of orders that have been issued can lead to a maximum fine of $250,000 (section 68) (Laverne Jacobs, at 20) .

VII Recommendations

1- The Alberta Government should amend the Alberta Human Rights Act to include an effective enforcement mechanism of Alberta Human Rights Tribunal orders.

2- The enforcement process should start with voluntary compliance by entities subject to the order. There should be a set of procedures for encouraging voluntary compliance under the Alberta Human Rights Act.

3- There should be an amendment of the Alberta Human Rights Act to include a provision stating that “any person who fails to comply with an order issued by the human rights tribunal must pay a penalty.” The current Act does not have any provision related to any penalties imposed for non-compliance with the tribunal order.

4- Similar to the Employment Standards Code (e.g., ss 89, 123.1) an amendment to the Alberta Human Rights Act should include a provision imposing a penalty on the party disobeying a reinstatement remedy. Reinstatement is a tricky and difficult remedy to implement. Parties struggle to enforce it without any proper mechanism mentioned in the law.

5- Similar to the accessibility laws in Ontario, Manitoba and Nova Scotia, non-compliance with the Alberta human rights tribunal orders should lead to a penalty. If the Alberta Government is serious about pursuing violations, that can help with encouraging compliance.

6- The Alberta Human Rights Act should have a provision stating that in case of non-compliance with the human rights tribunal, there may be an additional penalty if the non-compliance continues after the first penalty payment.

7- Sanctions for non-compliance should expressly support a Alberta Human Rights Tribunal order. For example, prosecution for the offence of contempt of court can result in a penalty, the contemnor’s arrest and the use of writs.

8- The ALRI Model Code of Powers and Procedures for Administrative Tribunals (section i) should be adopted by the Alberta Government so that the Alberta Human Rights Tribunal can obtain orders for contempt to enable it to enforce its orders.

Effective Enforcement of Human Rights Tribunal Remedies

Page Navigation

I Introduction

II Human Rights Tribunals are Administrative Tribunals

A Definition and Role of Administrative Tribunals

B Administrative Tribunals in Alberta

III Human Rights Remedies

A Purpose of Human Rights Remedies

B Human Rights Remedies in Alberta

C The Remedy of Reinstatement

IV Enforcement Mechanisms of Human Rights Tribunal Orders

A In Alberta

B The McKinnon Case

V Contempt of Court

A In Alberta

I Alberta Rules of Court

ii Model Code of Powers and Procedures for Administrative Tribunals

B Section 127 of the Criminal Code

VI Enforcement of Orders under Other Laws

A Employment Standards Code

B Accessibility Acts in Canada, Ontario, Manitoba, Nova Scotia and British Columbia

I Ontario Accessibility Act

ii The Accessibility for Manitobans Act

iii Nova Scotia Accessibility Act

VII Recommendations

© ACLRC 2021

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