Creating Timely "Gate-Keeper 2.0" Model in Alberta
Like several other Commissions in Canada, Alberta's legislation was designed around a gate-keeper model for complaint resolution and, like many others, Alberta has struggled to keep services timely and the number of active files (commonly referred to as the "backlog") reasonable, while facing complaint volume increases that far outpaced any increase in Commission resources.
Over the past decade or more, we continued to process complaints in the same old (and proven) way, in spite of changing circumstances. As the volume and complexity of complaints increased and budgets did not, this inevitably led to a larger backlog of files, increased times to resolve complaints, a decrease in staff morale, and increased criticism from the parties we serve regarding delays. For example, from March 2002 to March 2012, our number of active files grew from 631 files to 1,161; and our average time to resolve complaints steadily increased; from 372 days in 2002 to 585 days in 2012.
For context, Alberta receives approximately 16,000 inquiries a year and accepts approximately 800 new complaints a year. Nearly 75% of complaints are resolved at the regional offices through conciliation and investigation, with the remaining 25% of complaints are sent to the Director for a decision under s. 22 of the Act. Of these, four out of five are settled, dismissed or discontinued by the Director, while the remaining complaints, 5% of the total accepted, are referred to the Chief of the Commission and Tribunals for a hearing.
In 2012, when the new Director embarked on process and organizational changes to help transform Commission services, he stated several key assumptions:
- The key challenge was not the backlog of files, but the timeliness of complaint resolution services. The symptom was backlog; the problem was timeliness.
- With increasing volumes of complaints and no new resources, the primary (if not only) option available to AHRC was to streamline complaint resolution processes.
- The gate-keeper model is not inherently slow, given reasonable resources. It will become slow primarily if we allow ourselves, or the parties, to make it so. Preventing this entails both culture and process.
To demonstrate his commitment to improving timeliness, the Director felt it was critical that he walk the talk. In November 2012, there were over 60 files in his office, and their average time with the Director was nearly 19 months. Today, there are normally around 15 files in the Director's Office and, more importantly, they have been in his office for an average of under 3 months. Much of this improvement was achieved by simply changing culture to reflect that timeliness always matters in our daily work to serve the parties.
A key mechanism to improve the timeliness of Alberta's complaint resolution process was implementation of our fulsome investigation process in 2012. While we continue to follow our traditional investigation process for many files, we now have a formal triage step at the start of the complaint resolution process, to identify complaints that might be resolved through a fulsome investigation based on a review of the documentary evidence. A fulsome investigation is accompanied by written questions to, and responses from, the parties as required, along with a written analysis and recommendation from the human rights officer.
Timeliness improvements obtained in our regional offices from the fulsome investigation process have been significant. While complaints following a traditional investigation approach are, on average, 41 months old before they reach the Director for a decision, those following a fulsome investigation approach are, on average, only 9 months old. Further, the percentage of fulsome investigation decisions of the Director overturned by the Chief of the Commission and Tribunals is significantly lower than it is for complaints following our traditional investigation process.
In February 2015, Alberta launched a third stream that complaints can follow for resolution – the Director's Referral process. This new process was created, in part, as a result of feedback provided by the legal community to the Chief of the Commission and Tribunals in September 2014. Under this new process, either party to a complaint, as well as Regional Directors, can request that a complaint be referred to the Director for a decision under the Act, even prior to conducting conciliation and/or investigation. This process puts more control into the hands of the parties to a complaint and could result in some complaints being reviewed by the Director for a decision under s. 22 of the Act within 2 – 3 months of a complaint being accepted.
To qualify for a Director's Referral, the complaint must meet one of three criteria:
- Compassionate reasons – where the declining health of any party significantly impacts their ability to participate in the full complaint resolution process, through to the Court of Queen's Bench;
- High public interest – where resolution of the complaint may help address a wider-reaching or systemic human rights issue, or help develop or clarify jurisprudence in a developing area of human rights; or
- Credibility in harassment complaints – where there are significant, directly conflicting accounts of events between the parties, and little supporting documentation or information from other witnesses which strongly supports one party's version of events over the other.
When the Director receives a Director's Referral, he will review the complaint and other materials submitted by the parties, and assess whether or not the complaint should be referred to tribunal on a "reasonable basis to proceed" test. The Director may also attempt settlement; send the complaint back to the regional office for regular processing; or dismiss or discontinue the complaint if he believes there is no reasonable basis to proceed. If a complaint is referred to tribunal, the Director will have carriage of the complaint before the tribunal.
Thanks to the efforts of staff in our regional offices, the impact of the fulsome investigation process has helped reduce the median age of open complaints in the regional offices or Director's Office from 375 days in March 2012 to 333 days in March 2015 and the average time to complete investigation from 327 days to 173 days in the same period. The Director's Referral process should further support our efforts to improve the timeliness of services to those we serve.