RCMP, other employers exploiting human rights 'loophole' to stall complaints, lawyer claims

An employment and human rights lawyer says organizations like the RCMP are exploiting a "loophole" to prevent employees in federally regulated workplaces from taking their cases directly to the Canadian Human Rights Commission.

The Canadian Human Rights Act allows the commission to deny complaints if the complainant "failed to exhaust" the review process that was reasonably available to them.

"At this point it's a loophole that's getting abused by organizations to indefinitely stall people's right to access justice and hold them accountable for their breach of human rights," said lawyer Kathryn Marshall.

"It's totally unfair that people can't access our court system or human rights court system because of this … I think that provision needs to be struck entirely."

The federal government has been willing to make changes, but only for members of the military.

Earlier this summer, the Department of National Defence (DND) announced that members of the Canadian Armed Forces now have the option of taking their grievances directly to the civilian Canadian Human Rights Commission, even if they haven't exhausted the military's internal grievance and harassment mechanism.

The change came about in response to a recommendation from former Supreme Court justice Louise Arbour, who was tasked with reviewing the culture within the Canadian Armed Forces following a wave of sexual misconduct allegations against senior officers.

Marshall pointed out that the RCMP has been called out over a toxic workplace culture and has had to pay out millions of dollars to Mounties who experienced sexual assault and harassment on the job. A 2020 independent report investigating harassment in the RCMP concluded that change cannot come from within the institution and must be initiated from the outside.

Marshall said she wants to see the Canadian Human Rights Act amended to allow complainants to bring their complaints forward to the commission if their employers have failed to address them "within a reasonable period of time."

Otherwise, she said, "the complainant gets locked into this never-ending, years-long process and nothing ever happens. And the problems get swept under the rug.

"I call it no man's land."

One of Marshall's clients, Lindsay Carter, said she worked in the RCMP's forensic lab for 20 years. She said her battle with the force's internal systems left her feeling distressed and alone.

"The process seems to be broken and not genuine, despite assertions otherwise," Carter said.

"The institutional betrayal there is just huge."