Justice Committee on Nov. 18th, 2009

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Exactly.

I think, Mr. Chair, you have enough to rule on.

[The Chair, Conservative, Ed Fast]

Thank you. I think you've both been fair in your comments.

Let me say again, this examination is restricted to the competence and qualifications of the candidate for the position. She has a résumé. I don't believe a question of clarification as to whether she was part of a panel or a court or a quasi-judicial body that made a decision is necessarily off base.

In terms of now ranging into opinions as to what she may do in the future, or what she has done in the past in terms of those decisions, I'm not sure those are necessarily directed at the competence and qualifications of the candidate. But I do agree with Mr. Murphy, she's probably quite capable of defending herself and addressing that.

Please.

[Shirish P. Chotalia]

I'm certainly happy to reply.

I was a hearing member of the panel. I'm certainly very conversant about the section 13 debate. I'm very well briefed with respect to the Taylor decision. I'm familiar with it. I'm familiar with the tribunal's decision on Lemire. That is on judicial review to the Federal Court. I think there are many issues that arise from the case. As a tribunal member, because some of these individual cases on this very section are before the tribunal currently and may, of course, resurface before the tribunal, I feel it would be improper for me to voice my opinion about my view of section 13.

I will say that the tribunal is an administrative tribunal. We're bound by the decision of the Supreme Court in Taylor and we also are to implement the laws written by the House of Commons, Parliament, and I look to you for guidance on that.

[The Chair, Conservative, Ed Fast]

Mr. Murphy, you still have a minute and a half.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I'll be very brief.

I don't know how the hearing system works. In a court of appeal where there are three judges, there might be dissent. Is there a mechanism for dissent in these decisions? Am I to read that this was a unanimous decision? I don't know.

[Shirish P. Chotalia]

That's what it says, and it is a unanimous decision of the panel. That's what the decision is.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

That's all I have.

Thank you again, ma'am.

I'm sorry I caused Mr. Woodworth and me to argue in front of you. If you have children, you know what it's like, I suppose.

[The Chair, Conservative, Ed Fast]

It was done very professionally, I'll give you that.

We'll move on to Monsieur André. You have seven minutes.

[Guy André, Bloc, Berthier—Maskinongé, QC]

Good day, Ms. Chotalia. I hope you are well. You have a very impressive and lengthy resume.

How would you say the Canadian Human Rights Act is faring at the present time? Is it the focus of many challenges? Has it been called into question by certain groups? For example, section 13 of the act deals with hate messages. We've talked about this a little. This particular provision has been called into question. What are your views on this?

[Shirish P. Chotalia]

Again, had you asked me when I was in private practice I would have been happy to answer with my opinion with respect to the particular wording of particular sections. Unfortunately, at this point it's not for me, it's for you, Parliament, to decide how you want these sections to read. In particular, it's for Parliament to decide whether you are satisfied with section 13 as it stands. Are you satisfied with the Taylor decision? Do you want to amend the decision?

There is a conversation between the courts and the House. Parliament writes the law and the courts interpret the law. As a quasi-judicial administrative tribunal, we have to follow the law as interpreted by the Supreme Court of Canada, irrespective of what we may think the law should be. Unfortunately, I can't enlighten you on what I think the law should be because of my position.

Given my position, I do not feel that it is appropriate to comment at this time.

In this forum it would be inappropriate because of my position. I might have to adjudicate on that very issue.

I know this is not satisfying. I can only say I would love to express and speak about this issue, but I really would not be able to today.

[Guy André, Bloc, Berthier—Maskinongé, QC]

Thank you for your answer.

As Chair of the Canadian Human Rights Tribunal, you play a quasi-judicial role in terms of interpreting the Act. I understand that. What other responsibilities do you have in terms of promoting the Act?

[Shirish P. Chotalia]

That's a very good question. I tried to explain my role earlier.

There is a very important difference with the tribunal. We are like the court--it's not a court, but a quasi-judicial board. We hear the matters.

It's the commission that educates the public and advocates certain positions. The commission is certainly free to come here and share its view on section 13, that they think section 13 should be amended in such and such a fashion. That is for the commission.

When the commission was created, it started out of piecemeal legislation that was anti-discriminatory legislation found, for example, in the Ontario human rights act, that you couldn't give insurance, say, to Jewish people or you couldn't sell land to Jewish people. There were provisions in various statutes that were very discriminatory. Then in the 1970s the whole act was put together to create the Canadian Human Rights Act, with a commission to educate Canadians about the virtue of the act.

Prior to that there were also criminal and quasi-criminal provisions. Those were not found to be very effective, because if somebody was found to be in breach of the act, all they could do was incarcerate the person or give them a fine. Then the commission was created, and the mandate of the commission is multi-fold: it's to educate, investigate complaints that come before it, and then to actually take carriage of those complaints before the tribunal. So we are independent.

In one case a number of years ago, there was a challenge to the jurisdiction or the independence of the tribunal because our budget was coming out of the commission's budget. It was felt that we were too close to the commission. That was amended and changed so that we are very independent of the commission.

For example, I don't liaise with the commission on an individual case, but it is my hope that I can liaise with the commission on administrative matters where I hope that we can expedite hearings and give access to justice to parties quicker and in a more efficient fashion.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you for being here, Ms. Chotalia.

In terms of your responsibilities, I'm trying to gather how much time you would allocate as the chair to actually hearing cases or making decisions, but on the judicial side of it, the decision-making side of it, and how much of your time is allocated to the managerial, supervisory, and administrative roles for your office and the other tribunal members?

[Shirish P. Chotalia]

I'm still trying to get a handle on that myself, because I started on November 2. I would anticipate that I might be spending at least 40% of my time hearing cases, but at this time I'm spending a lot of time doing case management and of course learning all the budgeting, the management, and that sort of thing. I do have small-business experience in running my own firm for 22 years. I can tell you that it has been quite a challenging and intense experience, but I'm very involved in case management at this time.

We also do mediations. For example, the commission refers, on average, 80 cases a year to us. About 30 of those may be settled on their own. We also conduct a number of mediations; we offer in-house mediation. I'm going to a mediation tomorrow. About 30 cases out of that total may be mediated, and a mediation is obviously the best thing for the parties. Then the balance of the cases will be scheduled for a hearing.

We have a number of part-time members across the country. Right now, of course, we have an opening for the vice-chair and the full-time member. That's posted right now. There are certainly issues in trying to ensure the due administration of the office, but I'm hoping I will be able to do a number of hearings.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Like everybody else, I am quite impressed with the résumé. But I don't see a lot of managerial administrative experience. I ran a small practice as well for a period of time before I moved on to a larger one. Certainly you have skills from that, but is there anything where you had to manage a larger group?

Perhaps you could indicate to the committee how many full-time tribunal members there are, how many part-time, and then how many additional staff fall under your managerial responsibilities.

[Shirish P. Chotalia]

Sure. I've run my own small practice successfully for 22 years, so I've had budgeting and management issues there. And when I was a part-time member of the Alberta Human Rights Commission, although I wasn't the chief commissioner, we certainly dealt with budgeting at commission meetings, and some other administration issues as well. So I had that opportunity at an early age to be involved at that level.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Did that include work in terms of discipline and supervising, if you had a problem employee, if I could put it that way?

[Shirish P. Chotalia]

No, I would have to say I didn't do that. At that time, it would have gone through the chief commissioner. As well, when I was a bencher of the law society—and of course the Law Society of Alberta runs on funds from the lawyers—we had to deal with budgeting, finance, and other issues there. So that always came to us as benchers. Again, we had an executive director who dealt with employee discipline.

Even in our office, because there could be a complaint against the tribunal, often it's the vice-chair or our executive director, Greg Smith, to my left, who will deal with the discipline matters, because obviously we have to maintain the integrity of the tribunal.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I have just one final question. I'm surprised that my colleagues to my right didn't ask it. You obviously can speak some French, but obviously you're not fluent. Are you intending to become fluent to the extent of being able to conduct hearings in French?

[Shirish P. Chotalia]

I hope I get the opportunity. I didn't have many opportunities to speak French in England. That was a bit of a problem. I often find the accent difficult to understand, whether it's a Quebec or an Alberta accent.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Or Parisian.

[Shirish P. Chotalia]

I try to communicate in French. My goal is to become perfectly bilingual so that I can hear cases in French.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Merci.

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

Who is next on the Conservative side?

Mr. Rathgeber, you've got seven minutes.