Ontario Human rights Reform - A call to Action
What the AODA Alliance said at the Queen's Park News Conference on May 19, 2006
Good morning. I am the Chair of the Accessibility for Ontarians with Disabilities Act Alliance. We are a non-partisan province-wide coalition drawn from Ontario’s disability community. Our coalition builds on its predecessor, the Ontarians with Disabilities Act Committee. It fought a tenacious decade-long campaign to win the enactment last year of a new law aimed at making Ontario a barrier-free province in which all Ontarians with disabilities, numbering over 1.5 million, can fully participate. Our aim is to ensure that Ontario becomes barrier-free within 20 years or sooner, as the McGuinty Government’s Disability Act promises.
We have come to Queen’s Park today to announce our strong opposition to the McGuinty Government’s Bill 107, the proposed Human Rights Code Amendment Act, now before the Legislature for Second Reading. It is good that the McGuinty Government wants to improve the enforcement of human rights in this province. However, Bill 107 goes about it the wrong way. It makes things worse, not better.
Moreover, the McGuinty Government developed this bill the wrong way. It just heeded the call of a small group from the community, mostly made up of lawyers, that supports the Government’s plans, rather than holding a proper, open, accessible public consultation before developing the bill. A close look at Bill 107 shows that the Government has simply ignored the major thrust of the community feedback it has received since it announced its plans back on February 20, 2006. It has just barreled ahead with its plans.
Our news conference comes on a very dramatic day for people with disabilities. Even as we speak today, a national disability advocacy group, the Council of Canadians with Disabilities, is arguing an important disability rights case in the Supreme Court of Canada. It is fighting Via Rail’s spending millions of taxpayers’ dollars to buy new passenger train cars that have numerous barriers against passengers with disabilities. It is an appeal from the Canadian Transportation Agency, trying to enforce the Canada Transportation Act’s anti-discrimination clause.
That case painfully illustrates what we are worried about with Bill 107. Under that federal law, private citizens or groups have to fight their own proceedings before a federal tribunal to enforce the law. Via Rail has fought the disability community every step of the way, armed with lawyers that Via can far more easily afford to hire. Our community needs access to a strong, effective Human Rights Commission as the public investigator and prosecutor, especially when facing such well-funded, tenacious opponents. Bill 107 seriously cuts back on this.
To explain what’s wrong with Bill 107 and how we want it fixed, I want to introduce Mr. David Lepofsky. For over a decade, Mr. Lepofsky led our predecessor, the ODA Committee, spear-heading the successful campaign for the new Disability Act passed last year. A quarter-century ago, he was on the leadership team that successfully fought to get disability rights enshrined in the Ontario Human Rights Code. Back then he also was one of the disability rights advocates who successfully fought to get disability rights included in the Canadian Charter of Rights and Freedoms.
Our new coalition has asked Mr. Lepofsky to jump back into action, to help us preserve what we’ve won in these past campaigns, and what Bill 107 threatens. Our board was delighted that he accepted our invitation to be appointed our Human Rights Representative, to help prevent Bill 107 from weakening the protection of human rights in Ontario.
Let me turn the microphone over to David.
After fighting for a long time to win protections for people with disabilities in the Charter of Rights, the Human Rights Code, and then the new Disabilities Act, it is enormously frustrating for us to have to come here today to fight just to keep what we have won. It is also enormously frustrating, and hard to fathom, that the McGuinty Government that fought so passionately for us while in opposition, and was so open and receptive to us during its first two years in office, has turned 180 degrees, and treated us with such disrespect and lip service.
We have not come to praise the status quo in human rights enforcement. We entirely agree that the under-funded, overloaded, back-logged human rights system is too slow and needs strengthening, though the Government’s statistics inexplicably exaggerate the scope of a problem that no one disputes. Bill 107’s fix for this problem makes things worse, not better. It disregards the overwhelming thrust of the feedback that so many tried to offer the McGuinty Government between February 20, 2006 when the Government announced its plans, and April 26, when it introduced its bill.
The Ontario Human Rights 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. If you believe someone discriminated against you because of your disability or other protected ground, you can file a human rights complaint with the Ontario Human Rights Commission (OHRC). The OHRC must investigate your complaint and try to mediate a voluntary settlement. It can send a lawyer to prosecute your case before the Human Rights Tribunal if the evidence warrants it, and if your case hasn’t voluntarily settled. You pay no user fees.
Bill 107 takes away the OHRC’s public investigation powers. It removes the OHRC as public prosecutor in most human rights cases. It cuts back on the OHRC’s power to launch its own human rights complaints.
Under Bill 107, if you’ve been discriminated against, you’ll have to file your human rights complaint with the Human Rights Tribunal. You must investigate your own case. The Commission loses its investigation powers. You’ll have to get a lawyer to present your case, or represent yourself. The Government says it will give every complainant legal representation. Yet Bill 107 doesn’t guarantee this. Bill 107 lets the Tribunal charge you user fees.
Our preliminary analysis of bill 107’s complicated provisions show that it suffers from three serious problems:
First, Bill 107 takes away important rights the Human Rights Code has guaranteed for decades, like the right to public investigation of human rights cases, the right to public prosecution where evidence warrants, the right to fair procedures at the Human Rights Tribunal, the right to appeal to court from the Tribunal, and freedom from Tribunal user fees.
Second, Bill 107 doesn’t do what the Government says it does. Contrary to Government claims, it doesn’t guarantee a public hearing and a publicly-funded lawyer to all discrimination victims. It doesn’t create the promised new Human Rights Legal Support Clinic to serve all 11 million Ontarians. It gives the Government absolute power to fund public legal assistance as little as it wants, or to refuse to fund it.
Third, by this bill, the McGuinty Government betrays an important understanding with Ontario’s disability community. Dalton McGuinty promised effective enforcement in his new Disability Act, the AODA. The Government said last year that we don’t need a new enforcement agency in the AODA, since the Human Rights Commission investigates and prosecutes disability discrimination complaints. Now, the Government unfairly turns around and plans to rip out most of the Human Rights Commission’s teeth. Bill 107 merely re-invents an old Disability Secretariat within the commission, but gives it no investigation powers. All we’re offered is a slightly redecorated smaller room, but this time it is on the Titanic.
The Government has not explained how it is going to manage the staggering mess that will be created the day Bill 107 is proclaimed in force. According to this bill, on that day, hundreds or thousands of cases in the current system, partway through investigations or mediations, will be summarily packed off and sent to start all over again at the Tribunal. Only a very small group of cases will get to finish up in the old system. The Tribunal now can barely handle 100 cases per year. On the day it opens for business, it will have a line-up of up to 2,400 or more cases at its door. The Government says it will provide lawyers to all these complainants. That means on Day One, the Government has to be ready with lawyers to immediately take up to 2,400 new cases, at public expense. This is not a formula for a smooth transition.
We’d prefer that the Government start from scratch and hold a proper public consultation, before introducing a human rights reform bill. However, the Government seems intent on pressing forward with Bill 107. Thus we call for these changes to the bill:
Amend Bill 107 to ensure that it doesn’t take away any rights the Human Rights Code now gives us. For example, Bill 107 should be amended to give discrimination victims the choice of either taking their case right to the Human Rights Tribunal, or opting for the Human Rights Commission to investigate their case, and to prosecute it if evidence warrants it.
Amend Bill 107 to ensure it does what the Government says it does, e.g. to guarantee all human rights complainants’ the right to publicly-funded legal representation at all Tribunal proceedings.
Amend Bill 107 to ensure that the OHRC retains all its current powers and duties to enforce disability rights, or to create a new strong, effective independent enforcement agency to receive, investigate, mediate and prosecute disability complaints.
We are frankly staggered that the
Government has turned such a cold shoulder on the major players in the
disability community that it partnered with so well when it developed its new
Disability Act. For each single individual human rights lawyer that the
Government repeatedly names in the Legislature and in its news releases as
cheering on its plans, there are entire major community organizations that
oppose the government’s direction, and that say they’ve been left out of the
process - mainstays of our community such as the CNIB, the Alliance for Equality
for Blind Canadians, the Canadian Hearing Society, the Ontario Association of
the Deaf, the Canadian Association of the Deaf, the Disabled Women’s Network,
the Multiple Sclerosis Society, the Canadian Paraplegic Association, Community
Living Ontario, the Bob Rumball Centre for the Deaf, and many more. To that we
can add voices from the racial minority community, the League for Human Rights
of B’nai Brith and the Canadian Association of Retired Persons. It is difficult
to understand why the McGuinty Government would turn its back on such
communities, favouring the votes of a small group of its supporters, mainly some
lawyers. We don’t understand why the McGuinty Government would want to burn the
bridges it worked so long and hard building with our community over the past
decade. It makes no policy sense. It makes no political sense, especially just
over a year before the next general election.
A small group, mainly some lawyers, has had the inside track with the Government over the past months, well before this Government plan was announced. We’ve only gotten lip service. We urge the Government to take a deep breath, and some simple steps:
First, we’d like it to give us and the public at least two days notice of any proceedings on this bill in the Legislature so that people can arrange accessible transit to attend. The McGuinty Liberals blasted the Harris Government when it rejected that request. Yet the McGuinty Government hasn’t lived up to this in dealing with bill 107.
Second, we understand that the Government has promised province-wide hearings on Bill 107, but fear that they are going to be rushed in June or over the summer. We ask that these not take place in June, and preferably that they be put off till the fall. Community groups with limited resources and over-worked staff and volunteers need enough time to review the bill, formulate responses, and get board approvals. There will be ample time after that for the bill to get reviewed and brought back before the Legislature.
Third, we ask that the Government agree to ensure that it will be ready to entertain any amendments to Bill 107 that are proposed, and allow them to be debated, even if they involve significant changes to the bill. We would have had that option had the Government sent the bill out for hearings after first Reading.
Fourth, we ask the Government to use the summer months to do a real consultation, involving not only the Attorney General but other ministers with a clear, manifest stake in this bill, such as the minister responsible for the Disability Act. Public hearings are important. However they are hardly a place for the free debate among different stakeholders who are not represented by the small group of lawyers who have had the Government’s ear to date.
Just a few concluding points. As a non-partisan coalition, we want to express our deep appreciation to both the Progressive Conservative Party and the New Democratic Party for voicing our concerns in the Legislature. As the next provincial election approaches, we remain eager to work with all parties on these issues.
We also have available for you some important materials. First, we have released a Preliminary Response to Bill 107 which identifies our major concerns that we’ve summarized here.
Second, we’ve launched a new blitz to lobby the Government to make the changes we have identified to bill 107. You can pick up a copy of our new Action Kit that is now making its way around Ontario at the speed of light over the internet.
Third, we are very concerned that there is a fair amount of inaccurate information about this bill that has found its way into the public debates over it, including in some media reports. We have a Fact Check which addresses some of the more important points.
We would be pleased to take your questions.