News & Events
To: Members of the Accessibility for Ontarians with Disabilities Act
Alliance
Date: March 7, 2006
We want to let you know of a letter which the AODA Alliance has sent Premier
McGuinty on a matter which bears directly on the effective implementation of the
AODA, and which will be very important for all persons with disabilities in
Ontario.
On February 20, 2006, the Ontario Government announced it intends to bring
forward legislation to amend the Ontario Human Rights Code’s enforcement
process. We were not consulted by the Ontario Government before the Government
made the decision set out in its February 20, 2006 announcement. We set out
below both our letter to the Government, and the press release and backgrounder
that the Government issued to announce its plans.
In a nutshell, the Government said it wants to speed up the process of having
human rights complaints decided. This is a very commendable goal. Many have been
frustrated by the problems with the process of getting a human rights complaint
fairly dealt with including the very long delays.
However, the measures that the Government has announced for improving the system
raises serious concerns for persons with disabilities who face any kind of
barrier when they try to get a job, or to enjoy goods, services or facilities.
The Government is proposing to take away the Ontario Human rights Commissions
main power to enforce the Ontario Human Rights Code. Under the Government’s
proposal, people who face barriers would file their complaint of discrimination
directly with the Ontario Human Rights Tribunal. The Government hopes this will
speed up the process.
It means that persons with disabilities and others who face discrimination will
have to investigate their own case and present their own case to the Tribunal.
The Government’s announcement makes it appear that the Ontario Human Rights
Commission will no longer have the mandate to investigate cases, and to
prosecute discriminators before the Ontario Human Rights Tribunal. Until now, it
has been the Ontario Human Rights Commission’s job to investigate human rights
complaints, decide if they should be referred to the Ontario Human rights
Tribunal for a hearing, and to prosecute the discrimination complaint before the
Tribunal. It appears that under the new approach that the Government has
announced, if you face a barrier and want to file a human rights complaint, you
will have to investigate it yourself, and present your own case before the
Ontario Human Rights Tribunal. The Government announcement makes some vague
references to plans to provide legal advice. However, the Government’s
announcement doesn’t say that the Government will ensure that a lawyer is
provided to present the discrimination complaint at each hearing.
In our letter, we point out serious concerns with this proposal. We ask for
clarification of important issues that the Government’s announcement doesn’t
specify. We urge the Government to hold open, accessible consultations on the
topic of reform to the human rights process before introducing any legislation
in this area. We ask the Government to reconsider its announced plans in light
of any feedback it receives during an open public consultation.
This issue is especially important to the AODA Alliance, as our letter explains.
The AODA doesn’t include a new independent enforcement agency. This is because,
as the disability community was assured while the AODA was being developed, we
all have access to the Ontario Human Rights Commission. If, after passing the
AODA, the Government now takes away key powers of the Ontario Human Rights
Commission, as its recent announcement says, that significantly changes the
landscape on which all consultations on development of the AODA were based.
We encourage you to read this material carefully, to share it with other people,
and to take issue now on this issue. We shall shortly be sending you a new
Action Kit with all you need to know to take quick, effective action to help. We
agree that the Ontario Human Rights Code enforcement needs to be improved.
Think of ways to improve effective enforcement of the Ontario Human rights Code.
For example, if Government were to increase the funding of the Ontario Human
Rights Commission, that could help it deal with cases more quickly. The previous
Ontario Government cut the budget of that Commission. The AODA Alliance’s
predecessor, the ODA Committee, led the campaign against those cuts. It argued
that in 1995, the previous Government had promised to increase the budget of the
Ontario Human Rights Commission, not reduce it. There is more to be gained by
giving back to the Commission the funds it needs to do its job, rather than
making individuals, like persons with disabilities, have to do the job of
investigating and prosecuting human rights complaints themselves. We should note
that the Government’s announcement says that the Commission would retain the
right to bring its own complaints or to intervene in cases before the Ontario
Human Rights Commission. There is a big difference between this and the current
situation where the Commission is involved in every human rights complaint
properly filed with it.
We encourage you to urge the Ontario Government to hold off on new legislation
until it holds proper consultations, that it be open to any reform proposals
brought forward to improve the human rights process, and that it reconsider its
announced plans to weaken the Ontario Human rights Commission. That Commission
needs to be properly funded and fixed, rather than having its teeth removed.
c/o The Canadian Hearing Society
271 Spadina Road
Toronto, Ontario M5R 2V3
February 27, 2006
via facsimile (416) 325-3745
Premier Dalton McGuinty
Room 281, Legislative Building
Queen’s Park
Toronto, Ontario
M7A 1A1
Dear Premier McGuinty,
Re: Proposed Reforms to the Ontario Human Rights Code
I am writing on behalf of the Accessibility for Ontarians with Disabilities Act
Alliance. We are a voluntary non-partisan coalition of individuals and
organizations. Our mission is: “To contribute to the achievement of a
barrier-free Ontario for all persons with disabilities, by promoting and
supporting the timely, effective, and comprehensive implementation of the
Accessibility for Ontarians with Disabilities Act.”
Our coalition is the successor to the Ontarians with Disabilities Act Committee,
which had advocated for over ten years for the enactment of strong, effective
disability accessibility legislation. Our new coalition exists to build on the
work of the ODA Committee. We draw our membership from the ODA Committee’s broad
grassroots base.
We are writing to express serious concerns about the Ontario Government’s
February 20, 2006 announcement on reform to the enforcement of the Ontario Human
Rights Code. Your Government announced that it plans to introduce legislation
this spring to reduce the powers and role of the Ontario Human Rights Commission
in the enforcement of the Ontario Human Rights Code, and in its stead to provide
“direct access” to the Ontario Human Rights Tribunal for persons who file
complaints of discrimination.
Our coalition, like its predecessor the ODA Committee, has an obvious, strong
and important interest in the effective enforcement of the Ontario Human Rights
Code. The Code guarantees to every Ontarian with a disability the right to
equality in employment, housing, and access to goods, services and facilities,
and the right to be reasonably accommodated when they seek to enjoy these
opportunities. Under the Code, it is the Ontario Human Rights Commission, funded
by the Ontario Government,that receives, investigates, mediates and litigates
human rights complaints in Ontario. The Code is the bedrock legislation on which
the Accessibility for Ontarians with Disabilities Act 2005 and the Ontarians
with Disabilities Act 2001 were built. Those new laws were intended to build
upon and supplement the existing enforcement mechanism in the Ontario Human
Rights Code.
We share your Government’s concern that the current human rights enforcement
system is backlogged, takes too long, and doesn’t adequately serve the needs of
victims of discrimination. Many have grueling stories of ordeals they have
encountered when raising a human rights complaint. We agree that the human
rights enforcement system needs to be improved. However, we are concerned that
your Government’s proposal, though intended to fix this situation, will make
things worse, not better. It will move the line-up from the door of the Ontario
Human Rights Commission to the door of the Ontario Human Rights Tribunal. That
Tribunal itself is already backlogged. It will get even more backlogged if the
line-up is moved to its door.
Under the Ontario Human Rights Code, any person who files a human rights
complaint with the Ontario Human Rights Commission (OHRC) has the important
statutory right to have the Commission investigate that complaint of
discrimination, so long as it is properly within its jurisdiction, and is not
frivolous, vexatious or brought in bad faith, and isn’t diverted to external
complaint boards. Your government’s proposal appears to take away that important
mandatory right. That right is one which people with disabilities who are
victims of discrimination have been guaranteed by Ontario law since 1982.
The Code also guarantees that if, the OHRC investigates a human rights
complaint, can’t settle it between the parties, and decides that the case
warrants a hearing before the Ontario Human Rights Tribunal, the OHRC will
present the case before the Tribunal. The OHRC has a team of publicly-funded
lawyers who present these cases. While a victim of discrimination can hire their
own lawyer too, they don’t have to. They don’t have to qualify for Legal Aid in
order for the OHRC to ensure that a publicly-funded lawyer, with specialized
knowledge in human rights, will present their case to the Tribunal. There is no
means test. Your proposed changes to the Human Rights Code appear to take away
that guarantee that persons with disabilities have also been given by Ontario
law since 1982.
People with disabilities will rarely be able to afford the costs of privately
investigating their own case. They won’t have the public investigation powers
that the OHRC now has, and that your reforms would eliminate or reduce. Tribunal
hearings often go on for days and days. Most cannot afford to hire their own
lawyer to fight a case at the Ontario Human Rights Tribunal, and may well not
qualify for Legal Aid even if they are not affluent.
The unacceptable backlog at the OHRC can be traced in no small part to the
previous Ontario Government’s cuts to that agency’s budget and staff between
1995 and 2003. Rather than restoring the OHRC’s depleted budget so that it can
do its job more effectively, your proposal appears to take away key parts of the
OHRC’s job, and to significantly privatize them. Your proposals place the major
burden to investigate and litigate cases on the backs of victims of
discrimination such as persons with disabilities.
The Direct Access Proposal Creates An Unacceptable Two-Tier System Of Human
Rights Enforcement. Your Government has announced that the OHRC would retain the
power to intervene in cases before the Tribunal, if it chooses to. That means
that some complainants will have to fight their own case without having the OHRC
backing their position. Others may have the OHRC intervening to support them, at
some point in the proceeding. This stands in sharp contrast to the present
situation. At present, any complainant whose case goes before the Tribunal for a
hearing has the OHRC on the record backing them right from the beginning. We
believe that your proposed reform and this two-tier result, is a step in the
wrong direction.
The Direct Access Proposal Wrongly Shifts the Balance of Power in the Human
Rights Enforcement Process in Favour of Organizations That Discriminate. Those
organizations can far more easily afford to hire lawyers and drag cases out over
long hearings with many technical arguments, objections and motions. Under the
current legislation, a human rights complainant whose case goes before the
Tribunal has the benefit of the OHRC to oppose such tactics, to balance the
scales at least to some extent. Under your Government’s proposed approach, the
balance will tip far further away from human rights complainants, except for the
few who either are so poor that they may qualify for Legal Aid, or who are so
very rich that they can equally match a large company or government department
on the legal battlefield, or whom the OHRC might at some point intervene to
support.
We are also deeply concerned that your Government’s proposals run contrary to a
very basic understanding that underpinned all your Government’s discussions with
Ontario’s disability community from 2003 to 2005, during the development of the
Accessibility for Ontarians with Disabilities Act. One of the principles the
AODA was meant to incorporate was the establishment of an effective enforcement
mechanism. Both when dealing with the Liberal Party in opposition before 2003,
and in Government since 2003, it was a bedrock basic principle that nothing
would weaken or take away rights which persons with disabilities enjoyed under
the Ontario Human Rights Code. Our predecessor the ODA Committee, and many
disability groups that took part in the discussions and public hearings
regarding the AODA, called for a new, independent enforcement agency to be
established under the AODA to enforce the removal and prevention of barriers
against persons with disabilities. Last year, your Government took the position
that no such new independent agency was needed, because Ontario already has the
OHRC, with all its powers to receive, investigate and prosecute human rights
complaints. Your Government didn’t then suggest that it would later consider
weakening the powers and mandate of the OHRC.
Last summer, the ODA Committee and many others within the disability community
applauded enactment of the AODA, despite the fact that it includes no new,
independent enforcement agency. This was obviously based on your Government’s
representations about the important role of the OHRC. Now, after the fact, we
find that your Government has decided to take away much of the OHRC’s
enforcement powers, and to shift the responsibility to investigate and litigate
cases largely to the individual human rights complainant. Had this been known
when the AODA was before the Legislature, the need for an independent
enforcement agency would have been a much more indispensable demand before so
many would have applauded that bill. Many would have insisted on the AODA
including a new, well-funded, arms-length, independent enforcement commission
with a formal individual complaints process and mandatory investigation duties.
We thus wish to seek from your Government the clarification of several important
matters as soon as possible. First, it appears that your Government didn’t hold
an open public consultation before reaching the major decisions it announced on
February 20, 2006 regarding reforms to the Human Rights Code. We certainly
weren’t made aware of any open, accessible public consultations in which the
broad disability community could participate.
Your Government had committed in the last election to hold open, accessible
public consultations before enacting the AODA. It held very commendable, open,
public and accessible consultation process before it introduced its AODA bill
into the Legislature. Your Government also properly criticized the previous
Government when it didn’t hold open, accessible public consultations before
introducing its first ODA bill in 1998.
Will your Government commit to hold open accessible consultations on the reform
of the Ontario Human Rights Code before introducing any legislation on point?
Will it ensure that these consultations will be open to the broader public,
including the broader disability community, and not just lawyers involved in the
human rights field? Will it ensure that such consultations are open to consider
any options that people wish to bring forward, and that they aren’t predicated
on any assumption that the reform to be adopted will be the “direct access”
proposal? Put simply, will your Government commit to reconsider its decision
announced on February 20, 2006 in light of the input it receives?
It is important that such consultations occur before a new bill is introduced.
After a bill is introduced, the scope of any hearings are limited to the scope
of the bill. Moreover, after a bill is introduced, the Government is already
publicly committed to the course of action in it. We are asking for an
opportunity to have the Government consult before it decides to proceed with
such major, troubling changes to such a basic law as the Ontario Human Rights
code.
Second, we are aware that Legal Aid Ontario has advised the Ontario Human Rights
Commission during consultations last fall that it is not able to make up for the
legal representation that the OHRC now provides. Can you advise what your
Government’s specific plans are for meeting this important need? How much
funding will be assured? Will it involve a means test, unlike the present OHRC
legal representation system?
If your Government does proceed with a “direct access” proposal, will your
Government commit that in any such reform to the Ontario Human Rights Code, it
will include a statutory guarantee to a publicly funded investigation of every
human rights complaint filed that is within the Code’s mandate and that is not
dismissed as frivolous, vexatious or brought in bad faith? Will it also ensure
that where a human rights complaint is investigated, not settled, and not
dismissed on a preliminary motion, publicly-funded counsel will be provided
throughout the Tribunal hearing to all complainants without needing to meet a
means test such as qualifying for Legal Aid?
Your Government’s February 20, 2006 announcement only vaguely stated in that
regard that: “The new model would put legal and advisory services in place to
both support and empower people who are seeking a remedy before the tribunal.”
Similarly, The February 21, 2006 Globe and Mail only reported vaguely that :
“The Attorney-General said, however, that legal assistance would be available to
complainants.” We have not heard that the legal assistance referred to in these
vague announcements includes full representation at a Tribunal hearing. A
complainant before the tribunal with no lawyer, without an OHRC investigation of
their case, without the OHRC prosecuting their case, up against a respondent who
has a lawyer, is put in a very unfair position.
Third, if you are not prepared to commit to these, will your Government commit
to promptly amend the Accessibility for Ontarians with Disabilities Act to
provide for the prompt establishment of a new, well-funded, arms-length,
independent disability enforcement commission with a formal individual
complaints process and mandatory investigation duties.
We commend your Government for recognizing the need to reform the Ontario Human
Rights Code enforcement process. However we ask that you hold off on your
proposed reforms until the matter of accessible, open public consultations, are
resolved and until the concerns we raise can be addressed. Just as the ODA
Committee and the broader disability community worked together with your
Government to develop the AODA before it introduced its AODA bill in the
Legislature, we ask for a similar opportunity to work together with your
Government on any agenda for human rights enforcement reform, before any new
bill is tabled in the Legislature.
Sincerely,
Catherine Dunphy, Chair, AODA Alliance
cc: Michael Bryant, Attorney General of Ontario via facsimile (416) 326-4016
Sandra Pupatello, Minister Responsible for the AODA (416) 325-1498
Dwight Duncan, House Leader (416) 325-7755
Barbara Hall, Chief Commissioner, Ontario Human Rights Commission (416) 314-7752
John Tory, Leader of the Official Opposition (416) 325-0491
Howard Hampton, Leader of the New Democratic Party (416) 325-8222
ONTARIO GOVERNMENT NEWS RELEASE
Ministry News Release
News Release
Communiqué
Ministry of the Attorney General Ministère du Procureur général
For Immediate Release
February 20, 2006
ONTARIO GOVERNMENT TO MODERNIZE HUMAN RIGHTS SYSTEM
Better Serving The Public The Aim Of Proposed Changes
TORONTO - A stronger, faster, more effective human rights system that better
serves the public is the aim of changes being proposed by the McGuinty
government, Attorney General Michael Bryant announced today.
"We want to serve the public better than ever before by modernizing Ontario's
human rights system," said Bryant. "We want to improve the complaints process
and better respond to complex human rights issues that have an impact on groups
of people as well as individuals. Our aim is to improve and strengthen the
promotion, advancement and enforcement of human rights."
The current human rights system, which consists of the Ontario Human Rights
Commission and the Human Rights Tribunal of Ontario, was created in 1962 to
enforce the Ontario Human Rights Code, the first of its kind in Canada. The
commission is an independent agency, accountable to the legislature through the
Attorney General. It currently conducts some public education and research, and
it receives, settles and investigates human rights complaints. The tribunal
hears and decides cases referred to it by the commission.
Under a proposed new model in legislation to be introduced later this spring,
the commission would focus on advancing human rights and preventing
discrimination through proactive measures, such as public education, research
and monitoring to address systemic discrimination. The government would also
establish an anti-racism secretariat within the commission that would provide
recommendations and advice to the chief commissioner about research and policy
to fight racism.
The commission would maintain the power to file a complaint on its own behalf
directly to, or intervene with, the tribunal. The tribunal, meanwhile, would
provide a modern, streamlined, and efficient way of resolving disputes by
allowing individuals or groups to file claims directly with the tribunal.
"Despite considerable success, the commission has long called for change to
speed up the complaints process and to better promote a human rights culture
that prevents discrimination at work, in housing and services," said Barbara
Hall, chief commissioner of the Ontario Human Rights Commission. "We will work
with the government to build a renewed system that meets these goals and keeps
Ontario's position as an international leader in human rights."
"Human rights are fundamental. It's important that all Ontarians have timely
access to a fair and transparent system of enforcement and dispute resolution,"
said Michael Gottheil, chair of the Human Rights Tribunal of Ontario. "Many
people have been seeking change for a long time, and as chair, I am happy to
assist in implementing these changes, and to assist in designing rules and
procedures that promote the important objectives of the code."
"We are pleased to see the government make these important changes to the
system," said Kathy Laird, director of the Advocacy Centre for Tenants Ontario.
"They are long overdue. A human rights system that is able to promote greater
tolerance and deal more effectively with human rights violations will ensure
Ontarians are treated with dignity and respect."
"Our aim is to ensure that Ontario remains an international leader in the
advancement of human rights and to improve access to justice for those who face
discrimination," Bryant said.
- 30 -
Contacts:
Brendan Crawley
Communications Branch
(416) 326-2210
Disponible en français
www.attorneygeneral.jus.gov.on.ca
General telephone inquiries: 416-326-2220 or 1-800-518-7901
The visually impaired may call the phone numbers above
to hear the text of this document.
TTY: 416-326-4012
* * *
ONTARIO GOVERNMENT BACKGROUDNER
Ministry of the Attorney General Ministère du Procureur général
For Immediate Release
February 20, 2006
HUMAN RIGHTS REFORMS TO BETTER SERVE THE PUBLIC
Modernized Human Rights System in Ontario The McGuinty government intends to
introduce legislation in spring 2006 that would, if passed, transform Ontario's
40 year-old human rights system so that it can better respond to modern human
rights issues.
The proposed new model for human rights would provide a quicker, more efficient
way to resolve complaints by allowing claims to be filed directly with an
enhanced Human Rights Tribunal of Ontario. The new model would also strengthen
the Ontario Human Rights Commission and allow it to place greater emphasis on
proactive measures to address human rights issues.
Current Human Rights System in Ontario The current human rights system,
consisting of the Ontario Human Rights
Commission and the Human Rights Tribunal of Ontario, has been in place since
1962, when the Province enacted Canada's first human rights code. The code was
established to protect everyone in the province against discrimination and
harassment in the workplace, and in accommodation, goods, services and
facilities.
Ontario Human Rights Commission
The commission is an independent agency, accountable to the legislature through
the Attorney General. The commission enforces the Ontario Human Rights Code, and
its central role is to receive complaints and to investigate them. After
complaints are investigated, the commission then decides whether the matter
should go forward to a hearing before the Human Rights Tribunal of Ontario.
The commission has received international recognition for its policy work,
research and development of guidelines on significant human rights issues.
Recent publications include reports on racial profiling, age discrimination,
mandatory retirement and an accessibility audit of restaurant chains.
The McGuinty government appointed Barbara Hall chief commissioner of the Ontario
Human Rights Commission in November 2005.
Human Rights Tribunal of Ontario
The tribunal is an independent, quasi-judicial body, which hears and decides
complaints of discrimination and harassment under the code. It can only hear
complaints referred to it by the commission. It is responsible for reviewing and
making a decision on complaints.
The McGuinty government appointed Michael Gottheil chair of the Human Rights
Tribunal of Ontario in April 2005.
Proposed New Ontario Human Rights Commission
Under the proposed reforms, the commission's role would focus on proactive
measures, such as public education, promotion and public advocacy, research and
monitoring, to address systemic discrimination in Ontario. An anti-racism
secretariat within the commission would also be established. The commission
would also maintain the ability to bring a complaint on its own behalf before
the tribunal or to intervene in other complaints.
Proposed New Human Rights Tribunal of Ontario
A new complaints process would be implemented, with claims being filed directly
with the tribunal. New human rights legislation would be introduced to provide
the tribunal with updated statutory powers to determine its own practice and
procedures to resolve disputes fairly, quickly and effectively, and to provide
for compensation for human rights violations. The new model would put legal and
advisory services in place to both support and empower people who are seeking a
remedy before the tribunal
- 30 -
Contacts:
Brendan Crawley
Communications Branch
(416) 326-2210
Disponible en français
www.attorneygeneral.jus.gov.on.ca
General telephone inquiries: 416-326-2220 or 1-800-518-7901
The visually impaired may call the phone numbers above
to hear the text of this document.
TTY: 416-326-4012
This document is being translated into 14 languages.
These translations will be available at
www.attorneygeneral.jus.gov.on.ca
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