Recently, Jordan Shroeder, wrote two bright pieces in this journal arguing that we should reform, rather than tear apart, Human Rights Tribunals, so that they can get back to their noble and founding mandate of ending discrimination.
Respectfully, I think this is impossible. For one, the incentives that make HRTs useful are the selfsame incentives which lead to their abuse. Secondly, the proposed solutions will not stop the ever-growing purview of the Human Rights bureaucracy. A Human Rights Tribunal fair to the complainant and the defendant is so contradictory that it would be tantamount to HRT seppuku.
HRTs are ‘useful’ for combatting discrimination because they do not charge for complaints and their investigation. Costly lawsuits stop people from suing discriminatory entities, which means discrimination continues.
Charging nothing for complaints should have led to people reporting discrimination, but there arose an unintended consequence! HRTs were used to make money. As one article points out, you only have to complain that someone hurt your feelings to win a big check.
However, complaints will still be profitable as long as they cost nothing. That’s because, for the defendant, the tribunal process itself is the punishment.
Complainants like Yaniv know this and use it to blackmail other people – Yaniv, for example, was willing to withdraw her complaint against esthetician (and single mom) Shelah Poyer, in exchange for $2,500. Poyer is just one of 15 estheticians against whom Yaniv complained. As long as a defendant’s ransom offer is less than her legal fees, she will pay the ransom.
But even if such blackmailing were somehow forbidden, HRTs could and would still be abused, because money isn’t the only incentive. Spite is another. There’s a pleasure that comes from watching someone being chewed alive by the gears of bureaucracy.
A complaint out of nowhere is a great way to suck an individual or small business dry, as well as a place to fight ‘oppressive’ and systemically discriminatory institutions. To quote William Turner, a complainant in a 2018 HRT decision:
Since it is established law that there are no cost consequences, even for being a reprehensible asshole litigant(citation omitted) and I am shielded by litigation privilege, I can make as many outrageously bullshit human rights complaints as I please. Also, since I am a member of an “equality seeking group”, I get free lawyers, law profs and advocacy groups behind me. On the other hand, the Respondents will have to hire a lawyer and pay high legal fees to defend this horseshit. (emphasis mine).
Turner’s complaint was against the City of Ottawa. She claimed that the city’s pedestrian light signals discriminated against her because the signal indicating it’s safe to cross looked like a white able-bodied cis-hetero man, whereas she identifies as a “black, lesbian-feminist, female trans-gender and an advocate for the disabled.” These are the complaints that the HRT now spends time and money on.
As the article notes, a $5,000 cost would ruin a small business. But that assumes the defendant gets to the resolution stage. Before? For defendants, there are heavy legal fees, if you can afford them, and the emotional and mental stress which comes from fighting a complaint. The real cost of defending yourself is always more than just $5,000 if you lose.
And if you win (Section 13 which clamped down on speech had a 100% conviction rate), you still lose! Remember, the process is the punishment. In real courts of law, if someone sues you frivolously, and you win, you can request that the plaintiff pay for your legal fees. But Human Rights Tribunals have no authority to award legal costs.
If a disgruntled former employee files a spurious complaint against you for discriminating against them and your lawyer exculpates you, you cannot demand the complainant pay for your lawyer (unlike in real courts). The only possible victories are pyrrhic.
Nor will the solutions the articles proposed likely hold water. Who will decide what services are “essential” and which domains have “little effect”? HRT arbitrators will.
These limiting categories will always expand through time to cover whatever the arbitrator think should be punished. As they are social justice warriors, they will inevitably advocate for ideological interpretations of “essential services.” As they are bureaucrats, they will push to eliminate tinier and tinier minutiae of discrimination, and then argue that discrimination is constantly rising to substantiate their growth. It’s a snake that grows by eating its tail.
Shroeder’s article posits that waxing is not an essential service. But the BCHRT would beg to differ, as they just did in the Yaniv case where they said that waxing is “critical gender affirming care.”
If you argue that only discrimination preventing access to “essential services” should be prevented, then all services will soon be found essential. In parliamentary report after report, the purview of HRTs has been growing steadily and tyrannically, likely due in part to “extremists among equality seekers” coming to run the HRTs.
Nor did it occur to the creator of HRTs, Alan Borovoy, that “this instrument, which we intended to deal with discrimination in housing, employment and the provision of goods and services, would be used to muzzle the expression of opinion.”
Speech is another example of something which the articles consid to be “of little effect.” But zoom out a little and you see that it is one of the most impactful tools we have.
Online speech contributed to Trump winning the election. Violent speech online helped ISIS proselytize their message globally. And truthful speech can bring down an evil empire. If there’s one thing which totalitarians go after, it is speech. And simply hoping that HRTs will leave speech alone is highly unlikely.
How can we fix this? For one, introduce procedural justice, which will leash the HRT’s arbitrary power. With the proper rules in place, even bad people are incentivized to do good things. Without them, the good people who may start institutions will be brushed aside by power-hungry people, as has happened in HRTs. This is the only way to truly prevent a “weapon you helped developed [turn] swiftly against you.”
We ought to also impose a cost to complain, and award legal costs for unfounded complaints. These two things are what keeps the real judicial system trustworthy and fair.
However, this would go against the goal of HRTs, which aim to make it easy for people to accuse others of discrimination by charging nothing for complaints and by rising above nuisances like rules of evidence and the assumption of innocence.
This is why one cannot reform HRTs – their system for ending discrimination by luring in complaints is the reason for its abuse. And this is why in a liberal and just country like Canada, they should be abolished.