WINTER 2011 CASE REVIEW: A RISE IN FOREIGN TRAINED MDS' ACTIONS, AND PUBLIC AGENCIES' FAILURE TO PROTECT
STEADY FLOW OF REQUESTS FOR HELP
During the Winter 2011 quarterly period, CRARR opened 54 new files that led to 48 formal interventions. Complaints were or would be filed for 30 persons with the Quebec Human Rights Commission, 3 with the Canadian Human Rights Commission and 2 with the Police Ethics Commissioner.
Twelve (12) other actions were undertaken with other administrative and common-law tribunals. This remains within the average number of files that CRARR opens and acts on annually.
Employment discrimination (including union misrepresentation) and police racial profiling still remained the top two sectors in which CRARR was called upon to intervene, representing 44% and 31% respectively of all new files. Seven files involving discrimination in education were also opened, most involving foreign trained doctors of Arabic backgrounds who encountered problems in their residency. As a result of these issues, they were expelled from medical schools.
Most employment cases involved Arab and Black men as victims while almost 90% of police discrimination cases involved Black males ranging from 15 to the early 60s.
Females constituted 63% of all new clients during this quarterly period. This increase occurred when 12 Filipina live-in caregivers, all of them women, mandated CRARR to assist them following the Quebec human rights commission's mishandling of the caregivers' initial complaint.
Persons aged between 30 and 45 made up 63% of all new clients, followed by those over 45 at 21%. Minors represented 8% of new clients.
Blacks and Asians represented the largest group of clients (46% and 28% respectively), followed by persons of Middle-Eastern backgrounds at 15%. English-speaking people comprised 47% of CRARR's new clients between January and March 2011.
Additionally, CRARR's lawyers provided legal representation to many new clients in separate criminal and civil proceedings in which equality was a key component (these data do not include legal representation for clients with problems not related to discrimination).
NEGOCIATING SUCCESSFUL SETTLEMENTS
A number of settlements were successfully reached for CRARR clients during the Winter 2011 session, bringing a total of more than $30,000 in compensation. Some of these settlements include (note that confidentiality clauses prevent, in some cases, the disclosure of identities):
While settlements represent an early dispute settlement procedure that reduces costs, energy and prejudice for both parties in contentious cases, they also point toward a potentially problematic situation where civil rights violations are concerned. Even when these violations occur over a long period of time, and are serious in terms of loss, settlements carry an average price tag of under $5,000. Imbalance of power between the parties is another problematic issue in the early dispute settlement process. Given that in the vast majority of cases respondents are represented by counsel while the complainant or victim acts without assistance, complainants and victims are at a significant disadvantage. Further hampering the equity of the process is the sheer number of cases awaiting mediation by administrative agencies and tribunals. These circumstances prevent mediators or conciliators from devoting more than superficial attention to each case.
A DISTURBING TREND: WHEN PUBLIC CIVIL RIGHTS PROTECTION AGENCIES FAIL TO PROTECT
During the first quarter of 2011, several trends were identified based on the files opened at CRARR, many of which concern public civil rights protection agencies. These trends are: discriminatory treatment of foreign-trained doctors during their residencies in French-language hospitals; the unreasonably slow processing times of civil rights complaints and serious procedural and investigatory mistakes committed by the Quebec human rights commission at all stages of the process; and biased mishandling of complaints of race discrimination.
First, as a result of the Quebec human rights commission's November 2010 report confirming systemic racism in Quebec medical schools' processing of applications for residency from foreign trained doctors, many of these doctors have come forward and decided to take legal action. All of the complainants are of Arabic descent and were trained in either North African countries or in France, except for one Hispanic doctor who was trained in Latin America. All encountered biased treatment during their residencies in French-language hospitals and faced expulsion from their medical training programs as a result. All seven cases involve French-language universities. By March 2011, a $230,000 civil lawsuit was filed by one doctor against one university and another complaint, filed in spring 2011; two other civil rights complaints against the same university were also being prepared by the end of March. It is expected that more lawsuits and complaints will follow.
The second major file involves Filipina live-in caregivers who were discriminated against and exploited by an immigration consultant and his associates, since at least 2004. With the help of PINAY, a local Filipino women's rights organization, twenty-six women filed a complaint with the Quebec human rights commission in May 2009. It took the Commission 9 months to simply meet with these women and take their declaration of the facts. In addition, it took 7 more months for the Commission to come to the recommendation to dismiss their complaint due to the death of the main respondent and the fact that his personnel agency was not incorporated. However, when CRARR received the mandate to intervene and assist these women, it discovered numerous problems with the investigation, including incomplete fact-finding, misinterpretation of facts, and failure to inform the women of the process and legal options to which they are entitled.
The problem with the above file points towards the third and more disturbing trend, namely, ineffective, incorrect and biased mishandling of citizens' complaints of civil rights violations within public agencies whose very mandate is the protection of citizens' rights and freedoms:
During the winter period, much energy was devoted to addressing many other manifest errors in the handling of race complaints by the Quebec human rights commission, including:
In recommending the dismissal of the complaint, the Commission's investigator applied the court-rejected “similar situated test” and reasoned that there was no evidence of differential treatment since as a social housing tenant the woman is similarly situated with all other social housing tenants, a finding that contradicts standards of intersecting discrimination. The investigator neither requested nor obtained data from the landlord as to the race, language and civil status of tenants in that area for comparative purposes.
Finally, the investigator dismissed the claim of mental health issues citing the failure to submit medical evidence, despite the fact that CRARR had submitted the woman's authorization to access her file at the youth protection agency, where her psychological assessment reports were kept in confidentiality.