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Accessibility For Ontarians With Disabilities Act Alliance

Human Rights Reform Action Kit
March 6, 2006

Help Prevent The Government From Weakeneing Enforcement Of The Ontario Human Rights Code

1. INTRODUCTION

On February 20, 2006, the Ontario Government said it will introduce a law (likely late March or April) to change enforcement of the Ontario Human Rights Code. That system needs reform. It’s too slow, frustrating, and hard for many to use.

Yet, the Government’s proposal will make things worse, not better. It will create new barriers that make it harder for people to get their human rights respected.

We ask everyone to support our call for the Ontario Government to stop its announced changes. We want the Government to properly consult the public before introducing any new law and to make the human rights system better, not worse. We don’t say the current system is acceptable. However it needs a fix that doesn’t set victims of discrimination back.

The Government must get your message right now, before it soon introduces its planned law. The Government is testing the waters to see if there will be opposition to its announcement. Don’t worry if you don’t know much about the Human Rights Code. This Action Kit gives you all you need to know to help stop the Ontario Government from taking away important enforcement rights from victims of discrimination. In this Action Kit, we:

Help us preserve the gains we made when the Accessibility for Ontarians with Disabilities Act (AODA) was passed. Add your voice to ours. Endorse our position.

2. THE ONTARIO GOVERNMENT’S PROPOSED LEGISLATION

The Ontario Human Rights Code (“the Code”) makes it illegal for anyone to discriminate against you because of your disability, sex, religion, race, or certain other grounds. It bans discrimination in access to things like employment and the enjoyment of goods, services and facilities. It requires employers, stores and others offering goods, services and facilities to accommodate the needs of disadvantaged groups like persons with disabilities, racial and religious minorities, etc.

How do you enforce these rights now? If you believe an organization has discriminated against you because of your disability or other protected ground, you can file a complaint, called a “human rights complaint,” with a government organization, the Ontario Human rights Commission (OHRC). The OHRC’s job is to enforce the Code. Its job is, among other things, to investigate human rights complaints, and to try to negotiate a settlement of them. If the OHRC investigates a human rights complaint, if it decides that your complaint has merit under the Code, and if it can’t work out a voluntary settlement between you and the organization complained against, its job is to take your case to an independent Tribunal, the Ontario Human Rights Tribunal. There the OHRC prosecutes your case. It sends a publicly paid OHRC lawyer to present the complaint. You can also bring your own lawyer if you wish. Importantly, you don’t have to have your own lawyer.

What’s wrong with the system? Many criticize it. It takes far too long. The OHRC can take years to investigate a case. The OHRC is also criticized for not taking more cases forward.

How does the Ontario Government propose to fix this? It wants to introduce legislation to take away from the OHRC the prime job of enforcing the Code. In future, you would file your human rights complaint with the Tribunal, not the OHRC. The OHRC won’t investigate it. The Tribunal would deal with it directly. The Tribunal would try to mediate the case. If not settled, you could have a hearing before the Tribunal. However, an organization against whom you’ve filed a human rights complaint could apply to the Tribunal to have your case thrown out without a full hearing on all the evidence if your complaint lacks merit. The Government has said it will provide some unspecified measures to help people with legal advice or with preparing their human rights complaint.

Under the Government’s plan, the OHRC’s main job will be to educate the public on human rights, and to “monitor” human rights. It will also have the power to bring its own human rights complaints if it wishes, and to intervene in your case if it chooses to do so.

The Government hasn’t yet introduced its new law. To see the Government’s announcement, visit:
http://www.attorneygeneral.jus.gov.on.ca/
english/news/2006/20060220-hrmod.asp

3. MAJOR PROBLEMS WITH THE ONTARIO GOVERNMENT’S PROPOSAL

It’s good the Government admits the system needs to be fixed, but its plan is wrong.

The Government’s plan takes away your right to have a publicly funded investigation of your human rights complaint. The OHRC won’t have the job of presenting all human rights complaints that proceed to a Tribunal hearing. This forces you to investigate your own complaint. In contrast, the OHRC now has public investigation powers and a team of investigators and lawyers. They are back-logged and overloaded, in large part because the OHRC is underfunded.

The Government’s plan forces you to hire your own lawyer to present your case to the Tribunal. Tribunal hearings can go on for many days. Lawyers are very expensive. With no lawyer, you will be in an awful position. The organization you complain against will often have a lawyer to oppose you.

Vague government statements about providing some legal advice or working with Legal Aid don’t solve this. Legal Aid only serves the very poor. Others can’t afford steep legal fees. The Government’s plan doesn’t ensure that you will have a lawyer at a Tribunal hearing.

The Government says this new system is quicker. Yet its plan doesn’t get rid of the long line-up to enforce your human rights. It just moves it from the OHRC to the Tribunal.

The Government’s plan seriously weakens the AODA. The AODA was meant to have an effective enforcement mechanism. In discussions with the Government when the AODA was being developed, it was very important that nothing would weaken or take away rights that persons with disabilities enjoyed under the Code. Many disability groups called for the AODA to establish a new, independent enforcement agency to enforce removal and prevention of barriers against persons with disabilities. The Government said no new independent agency was needed, because Ontario already has the OHRC, with all its powers to receive, investigate and prosecute human rights complaints.

Many in the disability community applauded enactment of the AODA, even though it had no new, independent enforcement agency. If the Government now weakens the OHRC, the AODA cannot be applauded in the same way as fulfilling the Government’s promise to have effective enforcement. If persons with disabilities have to investigate and prosecute their own human rights complaints, organizations won’t be as pressured to remove and prevent barriers. This makes it harder to achieve the AODA’s goal of a barrier-free Ontario within 20 years.

The OHRC is supposed to be the public champion leading the fight against discrimination. We need a stronger OHRC with a better budget that would allow it to hire staff to do quicker, better investigations and to let it bring more cases before the Tribunal. We don’t need the Government to weaken the OHRC. In 1995-2003, the last Ontario Government weakened the OHRC with budget cuts. It is better to strengthen the OHRC and to streamline its procedures, than to off-load its investigation and prosecution roles onto victims of discrimination.

The Government didn’t hold an open, accessible public consultation with victims of discrimination before announcing its plans to weaken the OHRC. The Government shouldn’t make drastic changes to the Code without first properly consulting victims of discrimination.

4. HOW YOU CAN HELP STOP THE ONTARIO GOVERNMENT FROM MAKING THE ENFORCEMENT OF HUMAN RIGHTS WORSE--SOME PRACTICAL TIPS

Please do any of the following. Encourage others to do the same:

SAMPLE LETTER TO A MEMBER OF THE ONTARIO LEGISLATURE

Dear _,

I oppose the Ontario Government’s proposed changes to the Ontario Human Rights Code announced on February 20, 2006. The Government should not force victims of discrimination to have to investigate their own human rights case and to have to get their own lawyer to present their case to the Ontario Human Rights Tribunal. Right now, that is the job of the Ontario Human Rights Commission. That’s where it should stay. It shouldn’t be off-loaded onto vulnerable people.

The Government should not take away or reduce the right to a public investigation of proper complaints of discrimination. The Government shouldn’t leave this all to Legal Aid. Legal Aid won’t be able to pick up the pieces. The Government should strengthen and properly fund the Ontario Human Rights Commission, not weaken it. The Government shouldn’t introduce any legislation in this area until it holds a proper, open consultation with the public on how to fix the Ontario Human Rights Commission. This is too important to Ontarians. I support the position in the February 27, 2006 letter from the Accessibility for Ontarians with Disabilities Act alliance to Premier McGuinty.

Sincerely,

*****

AODA ALLIANCE LETTER TO PREMIER MCGUINTY

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 is 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