Rein In The Human Rights Tribunals

January 2011

Usually, ordinary Canadians have little exposure to the snake pit that is faculty-lounge politics. But every so often, a university scandal becomes so big that it bursts out into the real world of lawyers and human-rights commissions and front-page he-said/she-said media reports. Such is the case with the story of Emily Carasco, a University of Windsor law professor who is convinced that foul play by white males sunk her campaign to become law school dean.

The details of her case are difficult to summarize briefly. Suffice it to say that she is a woman of colour who has spent her entire career fighting obsessively for more affirmative action on campus, and railing against the alleged bigotry of her own university's White-Male-ocracy -- and now she is convinced that she has become its latest victim.

Her complaint also includes a complex sub-plot involving allegations (which she denies) that she plagiarized an academic publication many years back � allegations now being advanced by the husband of one of her collaborators. Adding tangent upon tangent, Ms. Carasco goes on for pages in her human-rights complaint about how that same publication was edited in a racist way, with all of her claims about Canada's racistness being racistly edited out. All in all, Ms. Carasco's human rights complaint is 48 pages long -- longer than many academic articles. It must have taken her a whole semester to write the thing. The word "racist" and its various synonyms appears many, many times.

On paper, at least, Ms. Carasco must have been considered a viable applicant for law school dean: Before the allegations of plagiarism emerged, she apparently was one of two candidates still remaining on the school's short list. But given her obsession with racism and affirmative action, it's hard to see how this one-issue activist could handle the position--in which she'd be required to deftly balance the interests of 100 different squabbling professors. This would be especially true if--after all this brouhaha -- she was put into the position of law school dean by state fiat, which is what her human rights complaint demands (along with $75,000 and, of course, a whole slew of new sensitivity programs to teach everyone at the University of Windsor how very racist they are).

The most bizarre part of the story is that, as Joseph Brean reported in the National Post last week, an Ontario Human Rights Tribunal (HRT) really could put this woman into the dean's office -- even if the university picks another dean while her case is being heard: "The appointment of a new dean does not preclude the option of a remedial order instating [Ms. Carasco] to the position of dean should [she] succeed in her [complaint]," declared the HRT in an interim ruling. "It is true that the presence of an incumbent may be a factor influencing the tribunal's decision of whether this is an appropriate remedy, but it is too early at this stage to gauge the significance of this factor against all of the other potentially relevant considerations."

Think about that for a second: A human rights mandarin -- someone who may or may not have any experience in academia; or even the firm legal grounding in labour law and constitutional free-speech principles that we expect of real judges -- gets to decide who runs one of Canada's law schools ... all based on a sheaf of paper submitted by an identity-politics activist who's angry she didn't get the job.

Then again, why stop at deciding the deanship? Section 45.2 of the Ontario Human Rights Code is very broad in defining the remedies that a human rights tribunal can prescribe. Financial restitution is just one of the options available. The HRT also can provide: "An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act". Which means the sky's the limit. The HRT could theoretically disband the whole law school, or force it to stop hiring white people.

Till now, watchdogs of Canadian human rights commissions have focused mainly on the threat that these star chambers pose to free speech. But as this case makes clear, their powers must be reined in across the board.

In a way, it might be a good thing if Ms. Carasco gets exactly what she wants in this case. When that happens, the people who rebel against the system and demand reform won't just be angry editorial board pundits: They will be the very same establishment legal minds who set up the Ontario Human Rights Tribunal and its counterpart kangaroo courts across Canada in the first place.