Ontario Human rights Reform - A call to Action

Discussion Paper On Strengthening Ontario’s Human Rights Commission And Tribunal

April 3, 2006

A. INTRODUCTION

On February 20, 2006 the Ontario Government announced plans to introduce a bill into the Legislature this spring to amend the Ontario Human Rights Code, with the aim of speeding up the enforcement of human rights. The Government’s bill, whose details haven’t been made public, will remove the Ontario Human Rights Commission’s lead mandate to investigate and prosecute discrimination complaints before the Human Rights Tribunal. The Government says that under its plans, discrimination victims will file and present their human rights complaints directly with the Human Rights Tribunal, whose job is to rule on these complaints. The Ontario Human Rights Commission is the public agency now charged with responsibility to publicly investigate and prosecute those who unlawfully discriminate on grounds such as mental or physical disability, race, religion, sexual orientation, sex or age.

The Government proposes to require discrimination victims to investigate and prosecute their own cases. It has made vague statements about providing legal advice and supports to discrimination victims. However the Government has yet to answer requests for specifics.

The AODA Alliance is a province-wide non-partisan voluntary, grass-roots coalition of individuals and community organizations from Ontario’s disability community. It’s united 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.” The AODA Alliance recognizes that the Human Rights Code and a strong effective Ontario Human Rights Commission to enforce it are absolutely indispensable for the achievement of a barrier-free Ontario for all people with disabilities through the AODA.

The AODA Alliance believes that the Ontario Government’s planned changes to the human rights enforcement system, announced on February 20, 2006, is seriously flawed. It will make things worse, not better. We explain why in Appendix 1 to this Discussion Paper. For more details, visit:

http://www.aodaalliance.org or http://dawn.thot.net

The AODA Alliance strongly believes that Ontario’s human rights enforcement system needs to be significantly improved. Unfortunately, the Ontario Government hasn’t released a Discussion Paper offering a range of options on how to fix this system. Public discussion and debate on this topic since the Government’s February 20, 2006, announcement has focused on the pros and cons of the Government’s single proposed option, an option, which many community organizations oppose.

Many individuals and community organizations including the AODA Alliance have called on the Ontario Government, before introducing a bill into the Legislature, to hold an open, accessible, province-wide public consultation on how to improve Ontario’s system for enforcing the Ontario Human Rights Code. To help the public think about this issue, the AODA Alliance prepared this Discussion Paper, which:

Briefly explains how the Human Rights Code is now enforced.
Lists key principles that could guide reform of the enforcement of human rights.
Suggests eleven options, which could be considered to improve this system.

This Discussion Paper offers these options to help generate public discussion. You may like some, all or none of them. These options may help you think of other options for reform. By offering these options for discussion, the AODA Alliance Board has not endorsed them as a package. The options are not listed in any order of importance.*

The AODA Alliance has to date, called on the Ontario Government to strengthen the Ontario Human Rights Commission, not weaken it. The only proposal that the AODA Alliance has so far urged upon the Government is to increase the Human Rights Commission’s budget. That idea is expanded upon in Option 1, below.

The AODA Alliance wants your feedback on this Discussion Paper. What do you think, of these options? Which do you like or dislike? What other options might you suggest? What are the top priorities?

Remember we must be practical. Long experience shows that the provincial government isn’t receptive to proposals that have an unrealistic price tag. On the other hand, we don’t have to accept the current Human Rights budget as cemented in stone.

Please understand that our volunteer Board won’t be able to write back to everyone, to separately comment on each item of your feedback. However we will definitely use all the feedback we get in developing any final proposals to Government. Send us your feedback at:

aodafeedback@rogers.com

This Discussion Paper isn’t just intended for Ontario’s disability community. We hope it will also generate discussion, views and ideas from other equality-seeking communities, outside the disability community. We have tried to put forward options that will interest any individuals and organizations who are interested in having the Ontario Human rights Code effectively enforced. We encourage other equality-seeking communities to circulate this Discussion Paper, gather feedback on it, and let the Government know what measures to take to strengthen the enforcement of human rights in Ontario.

B. HOW ARE HUMAN RIGHTS NOW ENFORCED IN ONTARIO?

The Ontario Human Rights Code is a very important law. It makes it illegal for anyone in the public or private sectors to discriminate against a person because of his or her disability, sex, religion, race, sexual orientation 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 protected by the Human Rights Code like persons with disabilities. It requires organizations in the public and private sectors to remove existing barriers to persons with disabilities, and to prevent the creation of new ones.

The Human Rights Code is the underpinning of the Accessibility for Ontarians with Disabilities Act a new law that is aimed at achieving a barrier free Ontario for persons with disabilities with 20 years. The Human Rights Code didn’t originally cover disability discrimination. People with disabilities fought long and hard to win these rights back in the late 70s and early 80s.

How do you enforce these rights now? If you believe an organization has discriminated against you because of your disability, race, religion, sex, age, or other protected ground, you can file a formal document called a “human rights complaint” with the Ontario Human Rights Commission. In that document you explain the events that you say amounted to unlawful discrimination.

Now the Human Rights Commission’s job is to enforce the Code. One of its most important duties is to investigate human rights complaints, and to try to negotiate a settlement. Human Rights Commission investigating officers have powers to publicly investigate discrimination complaints.

If the Human Rights Commission 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 a separate, independent Tribunal, the Ontario Human Rights Tribunal. At the Tribunal, the Human Rights Commission is the public prosecutor that prosecutes the case. It sends a publicly paid Human Rights Commission lawyer to present the complaint. Discrimination victims can also bring their own lawyer. Importantly, they don’t have to.

C. KEY PRINCIPLES FOR REFORM

The current system for enforcing the Ontario Human rights Code’s ban on discrimination is too slow, backlogged, and ineffective. Reforms should address and solve this problem.
Ontario needs a strong, effective public law enforcement agency to publicly investigate human rights complaints, and where a case comes before the Human Rights Tribunal for a hearing, to serve as the public prosecutor.
Reforms to the system for enforcing human rights should be based on, and take into account, the front-line experience of discrimination victims. Changes shouldn’t be decided on and adopted without a proper, open accessible public consultation. This includes both (a) open, accessible consultations by Government before it introduces a bill into the Legislature, and (b) province-wide open public hearings on the bill after the bill is introduced into the Legislature.
The process for enforcing human rights should be barrier-free and fully accessible to those equality-seeking individuals and communities whose rights the Human Rights Code guarantees. Existing barriers in the human rights system should be identified and removed. No new barriers to it should ever be created now or in the future.

D. OPTIONS FOR STRENGTHENING THE HUMAN RIGHTS COMMISSION AND TRIBUNAL

Summary of Options
1. Immediately Increase and Stabilize Funding to the Human Rights Commission to Enable Prompt, Effective Investigation and Prosecution of Human Rights Violations.
2. Lower The Legal Threshold For The Commission To Refer A Case To A Tribunal.
3. Simplify and Reduce The Number of Internal Formal Decisions The Human Rights Commission Must Make in a Single Case
4. Undertake Prompt, Serious and Substantial Independent Review of OHRC Gate-Keeping, Investigation, Conciliation and Mediation Procedures.
5. Reform Human Rights Commission Process for Deciding to Dismiss a Complaint.
6. Substantially Streamline the Ontario Human Rights Tribunal.
7. Impose Enforceable Time-lines for Major Steps in the Human Rights Process
8. Improve Access to Legal Representation /Advice to Complainants During Human Rights Commission Investigation and Mediation
9. Significantly Expand Human Rights Remedies
10. Give Discrimination Victims More Time to Launch a Human Rights Complaint
11. Make The Human Rights Commission Independent of Government
Description of Options
Option 1. Immediately Increase and Stabilize Funding to the Human Rights Commission to Enable Prompt, Effective Investigation and Prosecution of Human Rights Violations

The Human Rights commission is Canada’s largest anti-discrimination law enforcement agency. It has responsibility for over 11 million potential complainants, and many, thousands more public and private organizations as potential respondents. Its caseload has steadily grown, as have the grounds of discrimination it must investigate and prosecute.

The cases the Human Rights Commission must deal with keep growing in their complexity. Some of the organizations it must investigate and prosecute have become increasingly sophisticated in their legal strategies to slow down and resist investigations and prosecutions. Human Rights Tribunal hearings have become longer and more complex, causing public expectations and scrutiny of the Commission to steadily escalate.

Despite all these huge challenges, the Human Rights Commission’s budget has remained basically static for at least a decade. It hasn’t grown to match the Commission’s expanding task, even though prices and salaries have climbed with inflation.

In the 1995 election, the previous Harris Government promised to increase the Human Rights Commission’s funding. Instead, after it was elected, it announced cuts to the Commission’s budget. A number of regional Commission offices were closed; placing the Commission more distant from those it is serves. Beyond raw dollars, the commission’s front-line staff hasn’t grown to cope with its swelling number of cases, and the ballooning complexity of those cases. Its total number of staff is smaller than in years gone by.

It is thus no surprise that Commission investigation, mediation and prosecution of human rights complaints are too often too slow and can be insufficiently rigorous, and that the Commission hasn’t prosecuted more cases before the Tribunal. There are, for example, only so many hours in a Commission investigator, mediator’s or prosecutor’s day.

To speed up and improve the quality of the Commission’s investigations and prosecutions, and to let it effectively prosecute more human rights violators, the provincial Government could provide increased, stabilized funding for the Commission. A budget number shouldn’t just be pulled out of the air. It is necessary to develop a sensible budget based on the number of human rights complaints the Commission annually receives, and the number of cases a Commission investigator, mediator or prosecutor can effectively and reasonably handle in a year. From this a reasonable budget can be drawn up that will give the Commission enough investigators, mediators and lawyers to do timely investigation, mediation and prosecution of cases.

That budget could also provide for effective staff training so these investigators, mediators and lawyers can deliver improved service, especially given the problem of staff turnover at the Human Rights Commission. To these figures could be added amounts for the Commission’s public education and policy work. A one-time figure would need to be added to clear the existing backlog of cases, as the NDP Government did in a blitz in the early 1990s. As well, a one-time figure would be needed to get a new stream-lined system for handling cases up and running, as is recommended below.

In a proper public consultation, the Commission could provide useful staffing and other financial information to enable a proper funding increase to be reasonably discussed and debated. As well, it ought to be possible from those figures to craft a rough formula for responding to any future needs for increases to the Commission’s budget to address future increases in its caseload. If, for example, the Commission receives 2,700 human rights complaints in a future year (up from the recent rate of 2,400 per year), it should be straightforward to estimate the increasing investigation, mediation and prosecution resources it will need to effectively and promptly deal with the additional 300 cases.

This option isn’t a proposal to randomly “throw money” at a problem. If human rights complaints are to be properly and promptly investigated, mediated and where necessary, prosecuted; the required number of properly trained staff will need to be employed to do this work.

Option 2. Lower The Legal Threshold For The Commission To Refer A Case To A Tribunal

The Ontario Human Rights Code now has a fairly vague threshold for when the Commission can refer a case for hearing to the Human Rights Tribunal. That threshold could be lowered to make it easier for the Commission to refer a case to a Tribunal. The Human Rights Code could also be amended to include strong language that tells the courts that, when the Commission decides to take a case to the Human Rights Tribunal, the courts should not interfere with that decision.

For example, where the merits of a case will depend on a credibility assessment of clashing evidence from the complainant and the respondent, where the Commission doesn’t determine based on its investigation and on the parties’ submissions, that the complainant’s case is inherently false, the case could be referred to the Tribunal. In that event, it would be the Tribunal’s job to make credibility assessments based on live testimony.

As another example, in a case where a complainant and respondent agree that their dispute is irresolvable and should be decided by the Tribunal, the parties should be able to jointly ask the Commission to refer the case for a hearing at the Human Rights Tribunal. On consent, the parties could submit to the Commission sufficient evidence, to show what happened, what is in dispute, and why the matter needs a hearing. This joint submission could be deemed to fulfill the Commission’s duty to investigate the case.

Option 3. Simplify and Reduce The Number of Internal Formal Decisions the Human Rights Commission Must Make in a Single Case

Now, when a person files a human rights complaint with the Human Rights Commission, the Commission can be required to make up to three separate formal decisions on that case. These are:

1) A preliminary decision whether not to deal with a complaint under section 34(1) of the Code. This is where the complaint is outside the Commission’s mandate, or was filed more than six months after the discrimination, or where the complaint is frivolous, vexatious or brought in bad faith, or where the complaint is properly dealt with elsewhere.

2) A decision under section 36 of the Code, after the investigation and mediation or conciliation of the case, on whether to take the case to a full hearing before the Tribunal.

3) If under Decision 2, the Commission decides not to take the case to a full hearing before the Tribunal, and if the complainant asks the Commission to reconsider this under section 37 of the Code, a reconsideration of whether the Commission should prosecute the case before the Tribunal.

If a respondent now asks the Commission to reject a complaint at the outset under Decision 1 above, this can bog the case down for months, creating delays. These three decisions, which the Commission may have to make, could be streamlined and compressed. Opportunities for the Commission's investigation/conciliation process to become log-jammed with technicalities and procedural gamesmanship can thereby be reduced. Decisions 1 and 2 could be consolidated into one. Regarding Decision 3, see Option 5 below.

Option 4. Undertake Prompt, Serious and Substantial Independent Review of OHRC Gate-Keeping, Investigation, Conciliation and Mediation Procedures

The Human Rights Commission’s current procedures for screening, investigating, conciliating, mediating and handling complaints, from the initial filing of a human rights complaint all the way through to the case proceeding to a Tribunal, even within its’ existing budget is not operating at peak efficiency. A reliable expert from outside the Government and Commission should do a thorough review and audit of these practices, and should make recommendations on how to simplify, improve and streamline the procedure.

This is not a proposal for a minor administrative review of Commission procedures that addresses mere paper shuffling. It proposes a very thorough independent, external review that could lead to substantial reforms in how the Commission takes in, processes, investigates, conciliates and assesses human rights complaints. This could include a forensic audit of complaint files and other investigations to track why things take so long, and why investigations aren’t more thorough. These procedures can’t be fixed without an informed understanding of what's gone wrong and why, beyond the obvious drag on the Human Rights Commission created by its chronically being under-funded.

As part of this external audit, there should be a thorough review of any barriers to access to the Human Rights Commission and Tribunal for persons protected by the Code, such as persons with disabilities, people who don’t speak English or French, and others. That audit could identify any such barriers. It could present an action plan for their elimination and to prevent new barriers from being created.

Option 5. Reform Human Rights Commission Process for Deciding to Dismiss a Complaint

The Human Rights Commission’s decision with the most final and potentially detrimental consequences for human rights complainants is its power to decide to not take a discrimination complaint to the Human Rights Tribunal for a full hearing. If the Commission decides not to take a human rights complaint to the Tribunal for a full hearing, and if the Commission doesn’t reverse this decision after a complainant asks the Commission to reconsider it, the practical result is that the complainant’s human rights complaint is finally and permanently rejected and dismissed.

Those supporting the changes to the Human Rights Code that the Ontario Government announced on February 20, 2006 argue that this power of the Commission to dismiss complaints (“gate-keeping”) has led the Commission to turn down human rights complaints that had arguable merit. They also object to the fact that the Human Rights Commission doesn’t give the complainant an oral hearing before making this decision. In Appendix 1 to this Discussion Paper, we explain that the Government’s proposed changes don’t eliminate this gate-keeping function. It just creates new gatekeepers.

Instead of moving the gate-keeping role elsewhere, there could be substantial improvements made to the way that the Commission exercises this function, to make it more fair, prompt, open, and accurate. Here are some ideas:

(a) If the Human Rights Commission decides not to take a complaint to the tribunal for a full hearing, it could be required to give more fulsome reasons in writing for this decision.

(b) Right now, when the Commission makes its decision whether to take a human rights complaint to the Tribunal for a full hearing, it does so in a closed meeting. If it decides to dismiss the complaint, and a complainant asks the Commission to reconsider that decision, the Commission also considers that request in a closed meeting, without holding an open hearing. The complainant can only make written submissions. Critics of the current system object to the fact that a complainant can have their case permanently dismissed without a chance to see the decision-maker, and argue their case’s strengths to the decision-makers in person.

To improve this situation, the Commission could adopt a new procedure for dealing with a complainant’s request to reconsider a Commission decision to dismiss their human rights complaint. By this new procedure, if the Commission has decided not to take a human rights complaint to the Tribunal for a full hearing, and if the complainant asks the Commission to re consider that decision, the Commission could hold an open in-person hearing. The Commissioners could let the complainant and the respondent present arguments in person to the Commissioners on whether the case should proceed to the Tribunal for a full hearing. The parties could make their arguments based on the Commission’s investigation file and anything else the parties wish to submit to it.

To keep this process simple and prompt, there should be no testimony from witnesses. There would be no procedural objections and wrangling. Each party could be given a fixed period of time, like 30 minutes, to make their pitch. They can argue whatever points they want.

Then the Commission would make its final decision on whether the case should be referred to the Tribunal for a full hearing. The issue is a simple one. It should be decided promptly. Subsequently, if this procedure is adopted, then the Commissioners who preside at these resconsideration hearings, should be free to decide the question afresh i.e. to form their own opinion on whether the case should be prosecuted at the Tribunal.

(c) To speed up the process of deciding whether a case will be sent to the Tribunal for a full hearing, it shouldn’t be necessary for the case to be reviewed by all the Commissioners appointed to the Human rights Commission. Section 27(6) of the Human rights Code lets a panel of three Commissioners make a decision. To move cases through the system more quickly, the Commission should have panels of three Commissioners decide whether to take a case to the Tribunal. If the panel of Commissioners decide not to refer the case to the Tribunal for a full hearing, and if the complainant then asks for this decision to be reconsidered at an oral hearing, a panel of three different Commissioners should preside at the oral hearing.

Option 6. Substantially Streamline the Ontario Human Rights Tribunal

The Human Rights Tribunal needs very substantial reform to simplify, speed up and de-formalize its procedures. The Tribunal is quite backlogged. It takes months to get a case on for hearing.

Moreover, Tribunal hearings are extremely “judicialized” and legalistic. Some defense lawyers, representing some organizations accused of discrimination, tie a hearing up for days and days with highly technical procedural objections. Oral argument on these objections can take hours or days. Then the hearing may be further delayed while the Tribunal has to rule on these objections and arguments.

The Tribunal couldn’t now cope with an increase to its caseload. Options for improving it include:

(a) Appointing more permanent, full-time sitting members to the Tribunal, who can hold hearing dates back to back. Too often, hearings now have to be spread out over a day here and a day there, over weeks, months or even years. This is in part because some Tribunal members are only part-time, and are tied up on other dates with other jobs. This option can require the Government to increase the Tribunal’s funding.

(b) The Tribunal's process for dealing with procedural motions is far too judicialized. It can be slower and more formalized than are some Courts. The status quo serves only parties who are interested in delaying the process and wearing down complainants. As a non-court tribunal, the Human Rights Tribunal is intended to be more expeditious and less formal than the Courts.

The Tribunal's procedures should be simplified and streamlined to, for example, require that all procedural motions be dealt with entirely in writing on a very expeditious time schedule. This eliminates the problem of the case being tied up for days of oral hearings on technical motions.

In very exceptional cases the Tribunal could agree to hold an oral hearing on procedural motions. In those cases, these motions could be confined to very limited timelines, e.g. thirty minutes per motion.

(c) The Tribunal used to automatically produce and provide transcripts of all hearings. No doubt to save money, this was terminated in the mid 1990s. As a result, unless the Tribunal orders that a recording of the hearing be made and transcribed, there is no record whatsoever of the formal hearings of the Tribunal.

As a middle ground to provide for a useful record at lower costs, the Tribunal could automatically audio-record all hearing. If a party believes a transcript is needed e.g. for an appeal, this recording would be available. Public funding should be available at least for those parties who cannot afford to order transcripts, and who can show that a transcript is truly needed.

Option 7. Impose Enforceable Time-lines for Major Steps in the Human Rights Process

The Human Rights Code could set specific deadlines within which important steps must be taken by the Commission or Tribunal after a human rights complaint is filed, e.g. assignment of a Commission investigation, rendering of a Commission decision on a reconsideration application. These deadlines can only be imposed if the Government gives the Human Rights Commission and Tribunal sufficient funding to let it meet those deadlines.

Now, one of the only deadlines in the code is the requirement in section 41(5) that the Tribunal must render a decision in a case by 30 days after the end of the hearing. Too often the Tribunal doesn’t meet this deadline. There are extreme cases where the Tribunal took years to render its decision.

If deadlines are imposed, a complainant should have an expeditious avenue to get them enforced. A respondent shouldn’t be able to use these deadlines to get a complaint dismissed.

Option 8. Improve Access to Legal Representation /Advice to Complainants During Human Rights Commission Investigation and Mediation

A new system or new funding could be put in place to provide improved access to legal advice for human rights complainants when dealing with the Human Rights Commission’s investigation, mediation and review of a human rights complaint.

The Human Rights Commission can give out very general information but can’t give legal advice. Ontario’s under-funded, over-extended Legal Aid Plan can’t fill this gap now. In any event, it only serves the very poor. Few can afford to hire a lawyer for this. Some lawyers advise some clients without charge. Trade Unions can assist some unionized workers. The rest are at a disadvantage. This option has potentially significant budget implications. Implementing this option is no substitute for the other options identified here.

Option 9. Significantly Expand Human Rights Remedies

The Code could be amended to provide for better, stronger remedies including bigger monetary compensation orders when a complainant’s human rights have been violated. Historically, remedies ordered for human rights violations too often have been paltry. For example, section 41(1) of the code imposes an arbitrary $10,000 cap on monetary compensation for mental anguish due to the violation of the complainant’s human rights. It only permits such orders if the discrimination is proven to be willful or reckless.

The fact that human rights remedies are too often too limited can force legitimate discrimination victims to settle their case for too little. They can fear they won’t fare much better at a hearing.

Moreover, there is a pressing need for easier access to systemic and public interest remedies. Even though the Code’s remedy powers are worded in broad terms, and the Supreme Court has spoken broadly about the need for such remedies, it is still too much of an up-hill battle to get effective systemic and public interest remedies.

Option 10. Give Discrimination Victims More Time to Launch a Human Rights Complaint

The Code could be amended to give discrimination victims more time to launch a human rights complaint, e.g. two years. Now section 34(1)(d) give the Human rights Commission a discretion to dismiss a human rights complaint if it was filed more than six months after the discrimination occurred, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. In sharp contrast to this short six-month deadline, people can wait fully several years before suing in court for many other reasons.

Option 11. Make The Human Rights Commission Independent of Government

The Human Rights Commission could report directly to the Ontario Legislature, rather than a ministry of the Ontario Government. Now the Human Rights Commission is under the responsibility of Ontario’s Ministry of the Attorney General. Previously it was under the supervision of the Ministry of Citizenship, and before that, the Ministry of Labour.

It has repeatedly been recommended that the Commission be made truly independent of the Ontario Government. An important part of the Commission’s mandate is to investigate and prosecute human rights violations committed by the Ontario Government. The commission is now in a difficult position when it remains under the direct supervision of the very Government it must itself oversee.

Moreover, Commissioners are now appointed through a purely political process. In place of this, an arms-length nominations/applications process could be established akin to those used to advise the Government on judicial appointments.

APPENDIX 1
SUMMARY OF AODA ALLIANCE RESPONSE TO GOVERNMENT’S PLAN TO ALTER HUMAN RIGHTS ENFORCEMENT

The AODA Alliance opposes the Ontario Government’s plans, announced on February 20, 2006, to introduce legislation to require discrimination victims to file their human rights complaints directly with the Human Rights Tribunal, and to by-pass the Human Rights Commission. The AODA Alliance supports the Government’s goal of speeding up human rights enforcement. It believes, however that the Government’s plan will make things worse, not better, because:

It is necessary to strengthen the Human Rights Commission, Ontario’s public law enforcement agency for investigating and prosecuting human rights violations. Instead, the Government’s plan substantially weakens the Commission, by largely taking away its mandate to investigate all non-frivolous human rights complaints within its jurisdiction that are filed with it in a timely fashion, and to prosecute those complaints it investigates, can’t settle, and finds warrant a hearing before the Human Rights Tribunal.
The Government’s plan takes away discrimination victims’ important right to have a publicly funded investigation of their human rights complaint, and their right to have their case publicly prosecuted by the Human Rights Commission, if the Commission’s investigation shows their complaint deserves a Tribunal hearing, and if the case can’t be settled through negotiation. It largely privatizes human rights enforcement. It forces discrimination victims, like persons with disabilities, to investigate their own complaints. Few organizations will voluntarily cooperate with such investigations. The Government’s plan also forces discrimination victims to hire their own lawyer to present their case to the Tribunal at long hearings. With no lawyer, a discrimination victim is completely out-matched. The organization complained against will often have a lawyer to vigorously oppose them. Now the Human Rights Commission can pay for expert witnesses at a Tribunal hearing. Under the Government’s plan, discrimination victims will usually have to pay for that hefty expense.
The Government suggests it’s eliminating the “gatekeeper” who decides whether a discrimination victim gets a hearing on his or her human rights complaint. However, the Government’s plan doesn’t eliminate the gate-keeping role. It just moves it from the Human Rights Commission to the Tribunal. Also, private lawyers and Legal Aid clinics will become gatekeepers, when they decide which human rights complainants they will or won’t represent.
The Government says its plan implements two reports on human rights reform, one 15 years old and one 6 years old. Yet the Government’s plan doesn’t fulfill those report’s important findings that a discrimination victim must have effective legal representation at a Tribunal hearing. Legal Aid serves only the very poor. Under-funded Legal Aid budgets aren’t guaranteed year after year, and are already stretched beyond the limit. Even if the Government adds to Legal Aid this year, it is easily cut next year. Many discrimination victims aren’t so severely poor as to qualify for Legal Aid, but still can’t afford steep legal fees.
The Government vaguely said it will provide some new means for discrimination victims to get legal advice and help, but hasn’t answered requests for details. If it creates a new community legal clinic to advise and represent human rights complainants, that clinic, unless given enormous funding, won’t be able to represent at hearings all 2,400 human rights complainants who annually file a human rights complaint, and the many more who might wish to. That clinic will become another new “gatekeeper”. Unlike the Human Rights Commission, such a clinic cannot be taken to court to challenge its decision to turn away a human rights complaint. Unlike the Human Rights Commission, that clinic wouldn’t have statutory powers to investigate discrimination claims.
The Government says this new system will be quicker. Yet its plan just moves the long line-up from the Human Rights Commission’s door to the Ontario Human Rights Tribunal door.
In 1982 Ontarians with disabilities fought for and won a place for persons with disabilities in the Human Rights Code. They won two important rights. The first is the right not to be discriminated against. The second is the right of discrimination victims with disabilities to have a public investigation of human rights complaints, and a public prosecution if they warrant a hearing. The Government’s plan takes away that second right.
The Government’s plans renege on its commitments when it negotiated the Accessibility for Ontarians with Disabilities Act. They will weaken that new disability legislation, for which persons with disabilities fought for a decade. In the 2003 election, Premier McGuinty promised to pass an AODA with effective enforcement. The disability community asked that the AODA have a new independent public enforcement agency. After that election, during 2004-5 negotiations over that legislation’s contents, the Government said persons with disabilities don’t need a new enforcement agency, since the Human Rights Commission investigates and prosecutes disability discrimination. After the disability community cheered the enactment of the AODA in 2005, it’s unfair for the McGuinty Government to turn around and rip out most of the Human Rights Commission’s enforcement teeth.
Supporters of the Government’s plan put out statistics about the Human Rights Commission. We don’t share their interpretation of those statistics. More importantly, we agree that the system needs to be fixed. However, you don’t strengthen the enforcement of human rights by weakening the human rights enforcement agency.
Some who support the Government’s plan argue that discrimination victims need a human rights investigation that supports the claimant, whereas the Human Rights Commission now investigates to see if a human rights complaint has merit. Yet the Government’s plans don’t ensure a public investigation of each case. Moreover, an investigation is not supposed to be biased in favour of one side or the other. It should be an unbiased effort to get at the truth.