ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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UNITED FOR A BARRIER-FREE ONTARIO

SIGN UP - TO TELL THE PINTO HUMAN RIGHTS CODE REVIEW WHAT YOU THINK OF THE MCGUINTY GOVERNMENT'S PRIVATIZING HUMAN RIGHTS ENFORCEMENT - AND TELL THE PINTO REVIEW IF YOU SUPPORT OUR RECOMMENDATIONS ON HOW TO FIX PROBLEMS WITH THE PINTO REVIEW'S CONSULTATIONS

January 9, 2012

SUMMARY

A major issue is now becoming a priority for us, as we anticipated – the future of how people who suffer discrimination in Ontario can seek a remedy under the Ontario Human Rights Code.

If you have faced barriers due to a disability, have the Human Rights Tribunal, the Human Rights Commission and the Human Rights Legal Support Centre been effective at getting the barrier removed or prevented? Is Ontario's system for enforcing your human rights (including your right to be free from discrimination on grounds like disability) effective for you?

Last August, the McGuinty Government appointed Toronto lawyer Andrew Pinto to investigate the effectiveness of Ontario's system for enforcing human rights that was launched on June 30, 2008 with the passage of the controversial Bill 107. Bill 107, which we opposed, privatized human rights enforcement in Ontario. Rather than making the Human Rights Commission responsible for publicly investigating and publicly prosecuting discrimination cases, Bill 107 now requires discrimination victims to investigate and prosecute their own cases themselves.

Late last year, on the eve of the December holiday season, the Andrew Pinto Review released a Consultation Paper on how it will consult the public. It is important for one and all to immediately sign up to take part in that Review, and to give their input.

The Pinto Review has only given you up to January 23, 2012 to sign up. We have asked the Review to extend that deadline. You also have until January 23, 2012 to ask for a separate "Stakeholders Meeting" with Mr. Pinto, if you don't take part in one of the public meetings he plans to hold around Ontario. He also gives everyone up to March 1, 2012 to send him a written submission. 

We have just written to Andrew Pinto. Our January 9, 2012 letter to him, set out below, tells him about serious concerns with his proposed consultations. We made 12 constructive recommendations on how to address these concerns. These are all explained below.

What can you do to help now? There are two things we urge you to do:

1.  Please write or email Mr. Pinto to endorse the recommendations in our January 9, 2012 letter to him, set out below, on how to ensure he corrects the problems with the way his Review is being conducted. You can send him an email, even a short one, at chair@ontariohumanrightsreview.org.

2.  Please contact the Pinto Human Rights Review to ask to be able to take part in one of their public forums around Ontario, or to have a separate stakeholder meeting with him. Use that same email address if you wish, or write or fax him at the address and fax number set out later in this update.

This Update explains how to take part in the Pinto Human Rights Review, and describes our concerns over how that Review is being conducted.

Please circulate this update as widely as possible. We are concerned that the Pinto Review is not being properly publicized to the public.

The AODA Alliance will later make available detailed materials that will make it easier for you to take part in this process, including our proposed feedback to the Pinto Review on the issues he has been assigned to investigate. We always welcome your feedback on our work, including on how you think Bill 107 has served Ontarians who face discrimination.

MORE DETAILS

1.  What is the Andrew Pinto Review and why should we be concerned about it?

Back on August 12, 2011, the McGuinty Government appointed Toronto lawyer Andrew Pinto to conduct an Independent Review of Ontario's new and controversial human rights enforcement system, implemented under Bill 107. We are especially concerned about how a victim of discrimination can enforce his or her human rights, since the McGuinty Government is behind on keeping its election commitments to ensure that there is effective enforcement for the Accessibility for Ontarians with Disabilities Act.

Passed in 2006, Bill 107 is controversial legislation that the McGuinty Government enacted, over the objection of many including the AODA Alliance and many others within the disability community, as well as many from Ontario's racialized communities and the labour movement. Bill 107 privatized the enforcement of human rights in Ontario.  It stripped from discrimination victims their decades-old fundamental right to have any non-frivolous human rights complaints publicly investigated, and publicly prosecuted by the Ontario Human Rights Commission where the evidence warrants it. To learn about our concerns about Bill 107, and our unsuccessful efforts to get the McGuinty Government to take them seriously, visit: http://www.aodaalliance.org/reform/default.asp

Bill 107 fortunately required the McGuinty Government to appoint an Independent Review last year, to investigate and consult with the public on whether it has made things better or worse for discrimination victims like persons with disabilities. On December 23, 2011, on the eve of the December holidays, and four months after he was appointed to conduct this review, Toronto lawyer Andrew Pinto sent out an email that announced his new Consultation Paper for this Review. That Consultation Paper explains what questions he will be investigating, and how people can take part in his Review. His Consultation Paper is available on his Review's website at www.ontariohumanrightsreview.org.

We do not know if the Government will keep the Pinto Review's website up on the internet after his Review is finished. We thus have posted it on our website on a permanent basis. You can find it there at:  http://www.aodaalliance.org/strong-effective-aoda/01092012.asp 

2.  How can you take part in the Pinto Human Rights Enforcement Privatization Review?

You can present your views to the pinto Review in different ways.

The Pinto Review has only given you until January 23, 2012 to sign up for their proposed February, 2012 public forums around Ontario. They are proposing to hold public forums in Windsor - February 13, London - February 14, Toronto - February 15 and 24, Ottawa - February 16, Sudbury - February 21 and Thunder Bay - February 23.

It has given you up until January 23, 2012 to ask for a separate "Stakeholders' Meeting" with Mr. Those stakeholders meetings are to be held very shortly after that, between January 30 and February 3, 2012. Mr. Pinto has given you up until March 1, 2012 to submit a written submission. In other words, the review gave itself four months to prepare its rudimentary Consultation Paper, but is giving the public far less time to prepare and present your input to him on that Consultation Paper.  

Here is the Pinto Review's contact information:

Email: chair@ontariohumanrightsreview.org

Fax: (416) 593-4923

Regular Mail: Ontario Human Rights Review

Attn: Andrew Pinto, Chair

393 University Avenue, Suite 2000

Toronto, Ontario M5G 1E6

From what we have found, Mr. Pinto's Consultation Paper and website do not provide a voice phone number for those who might need this as their means to communicate, nor a TTY number for people who are deaf, deafened or hard of hearing.

3.  What are our concerns about how the Pinto Human Rights Enforcement Privatization Review is being conducted?

Back on November 17, 2011, we wrote to Andrew Pinto to offer constructive suggestions on how he should conduct this Review. You can see that letter at: http://www.aodaalliance.org/strong-effective-aoda/11172011.asp

Mr. Pinto responded to us in a letter dated December 9, 2011, which we set out below. We also received an email, set out below, from Mr. Pinto on the afternoon of Friday, December 23, 2011. In that email he makes public his Review's Consultation Paper. That Consultation Paper sets out the questions he will focus on, the way he will consult the public, and the deadlines for taking part.

We regret that Mr. Pinto has chosen not to follow a number of our recommendations. We just wrote to Mr. Pinto on January 9, 2012 to raise our concerns with how he plans to conduct his Review. We set out that letter below. In that letter, we offer 12 constructive recommendations to address our concerns. We recommend that:

1.  The Consultation Paper be amended to explicitly inquire whether the Human Rights Commission has made sufficient use of its power to initiate its own applications/complaints before the Human Rights Tribunal to effectively combat systemic discrimination.

2.  The Consultation Paper be amended to inquire explicitly into whether Bill 107's new regime for enforcing human rights has improved the eradication of systemic discrimination, and has been properly responsive to all equality-seeking groups, including those who bear the biggest brunt of systemic discrimination.

3.  The Consultation Paper be amended to remove its proposed inquiry into the creation of a new barrier to access against discrimination victims, namely, the possibility of empowering the Human Rights Tribunal to order a party to pay legal costs. It should instead inquire into the issue of the expanded exposure to having to pay their opponent's costs in a later court proceeding that human rights applicants face under Bill 107 if they win at a Tribunal hearing, but a court overturns that win.

4.  The Consultation Paper be expanded to specifically ascertain how those in the pre-Bill 107 human rights backlog fared, once Bill 107 came into effect.

5.  The Consultation Paper be expanded to broadly explore how the Human Rights Tribunal, Commission and Legal Support Centre have handled their new powers and mandate, including how open, accountable, and receptive to public input they have been.

6.  The Review far more broadly publicize its public forums, including via the media, so that people do not have to be on the Review's current email list, or keep checking the Review's website, to find out about them.

 

7.  The Review re-schedule its public forums and stakeholder meetings for March, rather than February, and extend commensurately the date by which people need to sign up for them.

8.  The consultation paper be revised to ensure that everyone who wants to make an oral presentation to the Review is afforded time to do so.

9.  The Consultation Paper be amended to include an expanded explanation of how human rights were enforced under the system before Bill 107, and the Government's commitments on what Bill 107 would achieve.

10.  The Consultation Paper be amended to permit anonymous submissions, cautioning that the Review will take into account the fact that the person submitting it chose not to reveal his or her name when assessing the submission.

11.  The Review announce the availability of Sign Language, captioning, attendant care and other measures at its public meetings and consultations, to effective meet the needs of those using speaking languages other than English and French, and establish an advertised  voice phone number and TTY number for communicating with the Review.

12.  The Review now disclose to the public the entire body of information that it has been given by, or requested of, the Human Rights Commission, the Human Rights Tribunal and the Human Rights Legal Support Centre.

We encourage one and all to write Mr. Pinto to endorse our concerns and recommendations. The Pinto Review's contact information is set out above.

Send us your feedback. Let us know what you think we should tell the Pinto Review about how human rights are now enforced in Ontario. Has Bill 107 improved your ability to enforce your right to live free from discrimination because of disability or other such grounds? Write us at: aodafeedback@gmail.com

*****

AODA ALLIANCE'S JANUARY 9, 2012 LETTER TO ANDREW PINTO

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

1929 Bayview Avenue

Toronto, Ontario M4G 3E8

New Email Address: aodafeedback@gmail.com

Visit: www.aodalliance.org

January 9, 2012

VIA EMAIL

Andrew Pinto, Chair

Ontario Human Rights Review

393 University Avenue, Suite 2000

Toronto, Ontario

M5G 1E6

E-mail: chair@ontariohumanrightsreview.org

Fax: (416) 593-4923                                                                          

Dear Mr. Pinto,

Re: Independent Review of Bill 107's Privatizing of Human Rights Enforcement in Ontario

Thank you for your December 9, 2011 letter, and for letting us know about the creation of your Review's website at http://www.ontariohumanrightsreview.org; and of your Review's December 23, 2011 Consultation Paper, available at http://www.ontariohumanrightsreview.org/consultation-paper.

In this letter, we address:  the issues you propose to focus on in your review of Ontario's new human rights enforcement system; how you are going to conduct your review of Bill 107; and your approach to the AODA Alliance and others who were critical of Bill 107, in the 2006 debates over it. We also request a stakeholder meeting with you for the AODA Alliance in early March.

1.  THE ISSUES YOU PROPOSE TO FOCUS ON IN YOUR REVIEW OF THE NEW HUMAN RIGHTS SYSTEM

We are concerned that your Consultation Paper's description of the issues your Review plans to address, and the questions you ask the public to comment on, are far too narrow. You have left out many of the important areas of inquiry that we proposed in our November 17, 2011 letter to you. That letter is available at http://www.aodaalliance.org/strong-effective-aoda/11172011.asp.

Your Review's proposed focus side-steps a number of the key 2006 McGuinty Government commitments on what Bill 107 would achieve. All our proposed 15 questions fit within the scope of your review, as mandated by section 57 of Bill 107. We repeat our 15 core questions at the end of this letter.

As key examples, we here emphasize five omissions. The effect of these omissions is to skew the Review in favour of commending Bill 107's impact, by avoiding many of its potential shortfalls. We ask you to correct these, and alert the public to these by revising your Consultation Paper and publicizing these changes.

First, downplayed and sidelined from your Consultation Paper's discussion of Bill 107's new, more restricted role of the Ontario Human Rights Commission, is any inquiry into the Commission's use of its power under Bill 107 to initiate its own applications before the Human Rights Tribunal. Your Consultation Paper asks no questions about whether the Commission has effectively used this power since Bill 107 went into effect.

This is a serious omission. A key area where we believe Bill 107's implementation falls far short concerns the Human Rights Commission's very limited use of its power to bring its own applications. The small group of lawyers who proposed Bill 107, and who vigorously advocated for it in 2006, as well as the McGuinty Government claimed that under Bill 107, the Human Rights Commission would not be weakened. The public was told that the Human Rights Legal Support Centre would bring individual cases. At the same time, the public was told that the Human Rights Commission would effectively tackle systemic discrimination by using its power to launch its own public interest applications. These were to be two separate streams of cases coming to the Human Rights Tribunal under Bill 107.

We are very concerned that Bill 107's implementation didn't live up to this. Our November 17, 2011 letter to you asked you to address this issue, among others. However, your Consultation Paper's list of questions leaves out this important role of the Commission. It only asks:

"Ontario Human Rights Commission

Whether the Ontario Human Rights Commission (OHRC), in its revised role, is proactively addressing systemic human rights issues through activities such as research and monitoring, policy development, and education and training.

a) How would you describe your overall experience with the Human Rights Commission? What were the positive and negative elements of that experience? What areas could be improved?

b) Was it easy to find information about the Commission, its programs and activities? Have you used any of the information or tools on the Commission’s website? Was the Commission accessible?

c) Have you been involved in any public education programs provided by the Commission or participated in the Commission’s public consultations?

d) Has the Commission provided assistance to you or your organization in understanding human rights or preventing discrimination?

e) Did the Commission intervene in your application before the Tribunal?"

Moreover, your Consultation Paper, in only briefly referring to the Commission's power to initiate its own cases, incorrectly suggests or implies that this power has been preserved from the old Human Rights Code. It states: "The OHRC retained its authority to initiate and intervene in applications before the HRTO." In fact, and over our objections in 2006, Bill 107 reduced that power, reducing the kinds of remedies the Commission could thereby seek.

Could you please let us know why and how your Review decided to omit this question. Did anyone at the Government or elsewhere ask you to omit this, or to take any steps to downplay it?

It is no solution to this omission for your Consultation Paper to invite people generally to address any topic they wish.

We therefore ask that:

1.  The Consultation Paper be amended to explicitly inquire whether the Human Rights Commission has made sufficient use of its power to initiate its own applications/complaints before the Human Rights Tribunal to effectively combat systemic discrimination.

Second, more generally, your Consultation Paper, including the questions it asks of the public, does not focus clearly and sufficiently on whether, under Bill 107's new regime, the problems of systemic discrimination are adequately tackled. For example, is the Human Rights Legal Support Centre taking on an appropriate proportion of cases in the areas of disability discrimination, discrimination against racialized communities etc.? How is it setting priorities as a new gate-keeper? Is the Tribunal ordering (or being asked to order) public interest remedies as often as before Bill 107?

We therefore recommend that:

2.  The Consultation Paper be amended to inquire explicitly into whether Bill 107's new regime for enforcing human rights has improved the eradication of systemic discrimination, and has been properly responsive to all equality-seeking groups, including those who bear the biggest brunt of systemic discrimination.

Third, your Consultation Paper asks whether the Human Rights Tribunal should be able to order a party to pay the opposing party's legal costs. This, among other things, opens up the possibility that the Tribunal might be allowed to order a discrimination complainant to pay legal costs of the party they accuse of discrimination. As you know, at present the Tribunal is not permitted to do this.

It is not within your mandate to investigate or recommend the creation of new barriers to access to the Human Rights Tribunal, to make it even harder for discrimination victims to enforce their human rights. The Government and those who advocated for Bill 107 claimed it would improve access to human rights protection and enforcement for victims of discrimination. Despite that, Bill 107 now makes a discrimination victim bear the new burden of having to themselves investigate and enforce their own human rights case, with no avenue for a public investigation and prosecution of their case.  It could only make things worse for discrimination victims to also have to face the risk of being ordered to pay legal costs if they lose.

This concern is amplified by the fact that your Consultation Paper also does not mention or ask about a new costs exposure that Bill 107 makes problematic for discrimination victims. Our November 17, 2011 letter asked you to investigate that issue. On our list of proposed questions that your Review should explore is the following, of which there is no mention in your Consultation Paper:

"15. What is the impact on human rights protection and enforcement of the new primary exposure of human rights complainants/applicants (in the absence of participation by the Human Rights Commission) to pay the legal costs of respondents if the complainant/applicant is unsuccessful in a judicial review application in court to challenge a Human Rights Tribunal ruling?"

We therefore request that:

3.  The Consultation Paper be amended to remove its proposed inquiry into the creation of a new barrier to access against discrimination victims, namely, the possibility of empowering the Human Rights Tribunal to order a party to pay legal costs. It should instead inquire into the issue of the expanded exposure to having to pay their opponent's costs in a later court proceeding that human rights applicants face under Bill 107 if they win at a Tribunal hearing, but a court overturns that win.

Fourth, your Consultation Paper marginalizes the plight of those who don't feel they can use the new human rights enforcement system at all. Similarly, it doesn't separately look into the plight of those in the backlog of the old system when Bill 107 came on line. The McGuinty Government and those who advocated for Bill 107 made the plight of those in the backlog their prime focus. It is important to find out how those in that pre-Bill 107 backlog fared under Bill 107.

We therefore recommend that:

4.  The Consultation Paper be expanded to specifically ascertain how those in the pre-Bill 107 human rights backlog fared, once Bill 107 came into effect.

Fifth, your Consultation Paper principally focuses on how individual cases were handled. That is, of course, important. However, it is also important for your Review to investigate how open, accountable and effective are the Human Rights Commission, Tribunal and Legal Support Centre, when discharging their new responsibilities under Bill 107.

For example, we found that the Tribunal was so chronically unreceptive to our input on the development of its new rules of procedure that we eventually gave up investing any more time into providing it with any more input. As another example, the Human Rights Legal Support Centre has in effect taken upon itself the new role of a gate-keeper, setting its own priorities of which cases and issues to push or make a priority. How has it done this? With input from whom? How open and accountable has it been?

We therefore recommend that:

5.  The Consultation Paper be expanded to broadly explore how the Human Rights Tribunal, Commission and Legal Support Centre have handled their new powers and mandate, including how open, accountable, and receptive to public input they have been.

2.  HOW YOU ARE GOING TO CONDUCT YOUR REVIEW OF BILL 107

We appreciate your providing some specifics on how you plan to conduct this Review, and your agreeing to hold public forums. We wish to raise some concerns about your plans, and offer workable recommendations. These would ensure that you can get your review done on time, while helping better ensure that the public has a full and proper opportunity to take part.

First, your Review needs to far more actively advertise and publicize this consultation, the Consultation Paper itself, and the dates, times, and avenues for individuals and organizations to take part in it. As far as we have seen, all that has been done to publicize your consultations since limited media coverage on the launch of your review last August (when many were away on vacation) has been the establishment of your website, and your sending out an email on Friday, December 23, 2011, to some people and organizations.

We are concerned that the vast majority of people and organizations interested in these issues likely have no idea about your consultation paper, or your proposed public forums, or other avenues for input. This review bears on fundamental rights and concerns of millions of Ontarians, including those that the human rights system has not effectively served. They should not be left to hunt on the internet to see if a new website has been launched, or to hope they are among those on the email list you used.

Did your email list include all the individuals and organizations who signed up to take part in the Legislature's public hearings on Bill 107, back in 2006? As you know, many were blocked from taking part in those hearings, by the McGuinty Government's controversial November 21, 2006 closure motion. In 2006, the McGuinty Government  cancelled continued public hearings on Bill 107 that had been promised, advertised and scheduled. For more on that controversial closure motion, see http://www.aodaalliance.org/reform/update-112306.asp

Our November 17, 2011 letter to you recommended that you extensively publicize your consultations. For example, we wrote:

"Ample prior publicity of these events should be provided in an accessible way, through media that will effectively reach as many interested people, including people with disabilities as possible. It is certainly not sufficient to simply post an announcement on a website, and hope interested people and organizations will find it."

 

Your Consultation Paper states that, for people to learn about the times and locations of your public forums, they will have to keep checking your website in January. It states: "The times and venues will be announced on the review’s website…"

You should be widely publicizing these public forums and other avenues for receiving public input through other media that reach a very broad audience, including those with no access to the internet.

We therefore recommend that:

6.  The Review far more broadly publicize its public forums, including via the media, so that people do not have to be on the Review's current email list, or keep checking the Review's website, to find out about them.

Second, we are concerned about the deadlines for the public to take part in your Review. Your announcing your deadlines, including deadlines to sign up for public forums or stakeholder meetings, has been delayed longer than appropriate.

The Government had three years to plan for this review. You have had over four months since your appointment last August to set and publicize your schedule.  Yet your Consultation Paper was only announced by an email from you on Friday, December 23, 2011 after noon. That is the eve of the December holiday period, when many are away, or heading off on vacation, and not gearing up for a major human rights review.

Two other matters compound this problem:  the insufficient publicity of your Review's consultation process described earlier, and the Human Rights Commission's not yet answering our November 14, 2011 request for information. We and others need that information to provide your Review with effective input. We have not finished our review of the information provided by the Human Rights Tribunal and Legal Support Centre, to determine if they were sufficient to meet our needs. Our November 14, 2011 request for information is available at: http://www.aodaalliance.org/strong-effective-aoda/11152011.asp  

You propose to hold public forums in February, the heart of the Canadian winter. It would be better to hold them instead in March, when the weather can be less severe. Large volumes of snow can be a real barrier for persons with disabilities, as well as being problematic for many others. Holding these forums in March will also help offset the problem of insufficient publicity to date of these forums and timelines.

 

We therefore recommend that:

7.  The Review re-schedule its public forums and stakeholder meetings for March, rather than February, and extend commensurately the date by which people need to sign up for them.

Third, your consultation paper makes it clear that members of the public who request a chance to present at one of your public forums may not be permitted to make an oral presentation. It states:

"individual presenters will be limited to 10 minutes and organizations will be limited to 15 minutes. Depending on demand, you may not be allocated a time slot."

This is unacceptable. Everyone who wants to speak at these forums should be given a time slot to do so. If you receive more requests for time to present at your public forums than can be accommodated, you should either extend the meeting, or convene an added event.

Those who advocated for Bill 107 made, as a core argument, the fact that everyone should get an oral hearing at the Human Rights Tribunal.  Bill 107 was promised to achieve this. Your review will need, among other things, to ascertain whether it lived up to that promise. We believe that it is especially incumbent on the Review to ensure that everyone who wants to make an oral presentation at these public forums is allowed to do so.

We therefore recommend that:

8.  The consultation paper be revised to ensure that everyone who wants to make an oral presentation to the Review is afforded time to do so.

Fourth, your consultation paper does not properly and sufficiently explain how human rights enforcement worked in Ontario before Bill 107, or what the government and Bill 107's proponents said Bill 107 would achieve. This makes it harder for many people to take part in this Review in as meaningful a way as possible.

We therefore recommend that:

9.  The Consultation Paper be amended to include an expanded explanation of how human rights were enforced under the system before Bill 107, and the Government's commitments on what Bill 107 would achieve.

Fourth, the Consultation Paper categorically states that you will not consider any anonymous submissions. It states:

"5.  Anonymous submissions will not be considered by the review."

We agree that it is far preferable for people to give their name when they make a submission. However, there may be some, including some working within the three human rights agencies whose work you are to review, within the Government or elsewhere, who may only feel at liberty to make a submission if it is anonymous. To categorically rule them out in advance potentially skews the review in favour of the status quo under Bill 107. To be effective, and to ensure that you can hear from people at all levels working within the three human rights agencies, your Review should give some latitude for anonymous submissions including, for example, whistle-blowers.

We therefore recommend that:

10.  The Consultation Paper be amended to permit anonymous submissions, cautioning that the Review will take into account the fact that the person submitting it chose not to reveal his or her name when assessing the submission.

Fifth, we are eager to ensure the full accessibility of your consultation process. We would like to know what steps you have taken to ensure that all your public forums will have Sign Language interpretation and open captioning, as well as attendant care. Also, we are eager to know what steps you are taking to ensure that your public forums and consultation materials are available in alternate formats and in a wide range of languages, beyond English and French, in light of the obvious importance of the Human Rights Code to a diverse public.

From what we have found, your Consultation Paper and website do not provide a voice phone number for those who might need this as their means to communicate, nor a TTY number for people who are deaf, deafened or hard of hearing.

We therefore recommend that:

11.  The Review announce the availability of Sign Language, captioning, attendant care and other measures at its public meetings and consultations, to effective meet the needs of those using speaking languages other than English and French, and establish an advertised  voice phone number and TTY number for communicating with the Review.

Sixth, your Consultation Paper indicates that you have already met with the three human rights institutions in the Ontario human rights system, the Human Rights Tribunal, the Human Rights Commission and the Human Rights Legal Support Centre. You state: "these bodies are able to provide me with statistical and other information about caseloads, timelines, number of applications, interventions, hearings, settlements etc…."

It is important for the public (including those who will present to your Review) to now see the entire body of information disclosed to you, whether in writing or verbally, at those meetings or otherwise. You should also disclose an indication of any information your Review has requested from any of these human rights agencies.

We therefore recommend that:

12.  The Review now disclose to the public the entire body of information that it has been given by, or requested of, the Human Rights Commission, the Human Rights Tribunal and the Human Rights Legal Support Centre.

3.  YOUR APROACH TO THE AODA ALLIANCE

In your December 9, 2011 letter to us, you seek to defend your role, as the person conducting this review, by stating that you are independent of the Ontario Government. However, your letter did not address concerns regarding the Review's impartiality.

A fundamental concern is that this independent review be conducted in a fair and impartial way. It should have no prior pre-disposition, either in favour of or against Bill 107, or the arguments that any side might present to the Review. Last year, we supported the call for the appointment of a person to conduct this independent review who had not taken active part in the controversial 2006 public debate over Bill 107, whether in support of it, or against it. See http://www.aodaalliance.org/strong-effective-aoda/07132011.asp.  Our involvement in the 2006 Bill 107 controversy is detailed at http://www.aodaalliance.org/reform/default.asp.

The government rejected that advice. It has not explained why it did so. To conduct this Review, the McGuinty Government selected you, a person who was a strong, tenacious, articulate and passionate activist and advocate in support of Bill 107, and who was a similarly forceful opponent to the position of the AODA Alliance on Bill 107, back in 2006. We of course fully recognize your knowledge of and commitment to human rights.

It will be incumbent on you to satisfy the public, including us, our supporters, and others who voiced serious concerns about Bill 107, that you are assessing the operation of Ontario's human rights enforcement system in a fair, impartial way, without any pre-disposition in advance, in favour of any position on its issues. Through your conduct of this Review, and your final report, you will need to satisfy our supporters that even though you arrived at our March 16, 2006 Queen's Park news conference on Bill 107, to  vocally oppose the concerns we there shared with the media about the Government's proposed human rights reforms; and even though on April 12, 2006, you tenaciously opposed us and our concerns about the Government's proposed human rights reforms at a public debate (at which you and I were debating opposite sides of this issue, along with two other debaters), you will now fairly and impartially consider our concerns without being affected by your prior vigorous opposition to them. One way you can help with this would be to act on this letter's constructive recommendations.

4.  REQUESTING STAKEHOLDER MEETING WITH YOU

You invited the public to request a chance for a separate stakeholder meeting with you. I hereby request such a meeting with you, for the AODA Alliance to provide our input into your review. In order for us to be able to prepare properly, we would appreciate having the opportunity to have this meeting, no sooner than the first week of March. 

Your Consultation Paper asks us to outline our mandate and interest in your Review. We trust that you are well aware of our mandate and activities. You can see our activities on Bill 107 detailed at http://www.aodaalliance.org/reform/default.asp. You can see our activities in advancing for accessibility for persons with disabilities generally documented at: http://www.aodaalliance.org/strong-effective-aoda/default.asp. Issues which we wish to address are highlighted in our November 17, 2011 letter to you. We may expand those issues as we further prepare.

 

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Its 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. The ODA Committee advocated for over ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our supporters from the ODA Committee's broad, grassroots base. To learn about the ODA Committee's history, visit: http://www.odacommittee.net.

We look forward to hearing what action you will take in response to this letter. We will take steps to publicize your review to those who follow our updates.

Sincerely,

David Lepofsky, CM, O.Ont.

Chair, AODA Alliance

cc:        Michael Gottheil, Executive Chair,

            Social Justice Tribunals Ontario

            michael.gottheil@ontario.ca

            Barbara Hall, Chief Commissioner,

            Ontario Human Rights Commission

            barbara.hall@ohrc.on.ca

            Kathy Laird, Executive Director,

            Human Rights Legal Support Centre

            klaird@hrlsc.on.ca

            David Wright, Associate Chair,

            Human Rights Tribunal of Ontario

            david.wright@ontario.ca

EXCERPT FROM OUR NOVEMBER 17, 2011 LETTER TO ANDREW PINTO

Questions this independent review should ask include, for example:

1.  Has Bill 107, as implemented to date, fulfilled the commitments that the McGuinty government made in 2006? The government's commitments are listed and documented at http://www.aodaalliance.org/strong-effective-aoda/07022008.asp

Has it delivered the benefits that its proponents and advocates said it would?

2.  How large is the caseload backlog in Ontario's human rights enforcement system?  How has Bill 107 affected the size of this backlog?

3.  How many and what percentage of human rights complainants/applicants are being provided legal representation by the Human Rights Legal Support Centre when taking their case to the Human Rights Tribunal?  Of these, how many and what percentage are being represented by lawyers, as opposed to non-lawyers?  How many people, and what percentage of total complainants/applicants, are unrepresented during formal or informal proceedings at the Human Rights Tribunal?

4.  How many and what percentage of discrimination claimants is the Human Rights Legal Support Centre serving, and how many or what percentage are being turned away or not getting through? For a newspaper report on the high number of callers not even getting through to the human rights legal support centre, visit http://www.aodaalliance.org/strong-effective-aoda/05292010.asp 

5.  How long does it take to get a case decided at the Human Rights Tribunal?

6.  How many and what percentage of human rights complainants/applicants are getting a full hearing on their case's merits at the Human Rights Tribunal?

7.  How does the Human Rights Legal Support Centre decide which cases to give full legal representation, versus legal advice, as opposed to turning them away?  By what criteria?  What priorities is the Human Rights Legal Support Centre focusing on in handling cases?  How are these priorities set? What input from equality-seeking communities is obtained and used to set these priorities?

8.  Did Bill 107 strengthen or weaken the Human Rights Commission as an effective agency for combating discrimination in Ontario?

a) To what extent and in what cases is the Human Rights Commission using its power to intervene in cases at the Tribunal, to initiate its own cases at the Tribunal, or to launch inquiries under its powers in Bill 107?  How effective have these been at combating systemic discrimination?

b) What impact has the Commission's policy statements had on the protection and enforcement of human rights since the Commission lost its core power to enforce the Code?

9.  What happened to the many cases that were in the Human Rights Commission's backlog when Bill 107 took effect?

10.  Now that the Human Rights Commission has been removed from the vast majority of cases before the Human Rights Tribunal, how often are "public interest remedies" being ordered by the Tribunal, or included in case settlements, to systemically prevent future discrimination?  How are these remedies monitored?  How effective are they at preventing future discrimination? The Human Rights Commission used to have lead responsibility for trying to get public interest remedies in human rights cases, like orders requiring an organization to adopt a human rights policy, to undertake human rights training and to take other steps to prevent future human rights violations.

11.  To what extent has the Human Rights Tribunal taken into account the input of the public in designing its new Rules of Procedure?

12.  To what extent have the Tribunal's new rules of procedure resulted in hearings and other proceedings that are fair, and that are publicly seen as fair?

 

13.  What is the impact on human rights enforcement and protection of Bill 107's elimination of the right to appeal from the Human Rights Tribunal to court, and Bill 107's restricting court review of Tribunal decisions to cases where the Tribunal's decision is patently unreasonable?

14.  Does Bill 107 sufficiently provide for public oversight of and public accountability of the Human Rights Tribunal, Commission and Legal Support Centre?

15.  What is the impact on human rights protection and enforcement of the new primary exposure of human rights complainants/applicants (in the absence of participation by the Human Rights Commission) to pay the legal costs of respondents if the complainant/applicant is unsuccessful in a judicial review application in court to challenge a Human Rights Tribunal ruling?

*****

ANDREW PINTO'S DECEMBER 23, 2012 EMAIL TO THE AODA ALLIANCE

Sent on behalf of Andrew Pinto, Ontario Human Rights Review

 

The Ontario Human Rights Review has produced a Consultation Paper that I

wanted to bring to your attention.  The Consultation Paper as well as

information on How to Participate in the Review are available on the

Review's website: www.ontariohumanrightsreview.org

<http://www.ontariohumanrightsreview.org> .

 

I would appreciate if you could forward this email on to others who may

be interested in the Ontario Human Rights Review.

 

I look forward to your participation.

 

Yours very truly,

 

Andrew Pinto

Ontario Human Rights Review

 

 

 

Amelita Reyes

 

393 University Avenue, Suite 2000

Toronto, ON M5G 1E6

t 416-703-2067

f 416-593-4923

areyes@pintowrayjames.com

www.pintowrayjames.com

            ****

ANDREW PINTO'S DECEMBER 9, 2011 LETTER TO THE AODA ALLIANCE

ONTARIO HUMAN RIGHTS REVIEW

www.ontariohumanrightsreview.org

Chair: Andrew Pinto

393 University Avenue

E-mail: chair@ontariohumanrightsreview.org                                                Suite 2000

Fax: (416) 593-4923                                                                           Toronto, Ontario, Canada

M5G 1E6

Via Email: dlepofsky@sympatico.ca

and Regular Mail

December 9, 2011

David Lepofsky, Chair

Accessibility for Ontarians with Disabilities Act Alliance

1929 Bayview Avenue

Toronto ON M4G 3E8

Dear Mr. Lepofsky:

 

Thank you for your letter of November 17, 2011.  I am responding to the three issues that your letter broadly addresses, namely:

 

(a)        The independence of the Review;

(b)        Questions the Review should ask; and

(c)        How the Review will consult the public.

 

An important consideration that cuts across all three issues is the scope of the Review.  As you know, my mandate arises from section 57 of the Human Rights Code which states:

 

            57.       (1) Three years after the effective date, the Minister shall appoint a person who shall undertake a review of the implementation and effectiveness of the changes resulting from the enactment of that Act.

                        Public consultations

                        (2) In conducting a review under this section, the person appointed under subsection (1) shall hold public consultations.

                       

 

                        Report to Minister

                        (3) The person appointed under subsection (1) shall prepare a report on his or her findings and submit the report to the Minister within one year of his or her appointment.

Upon my appointment, I created a website: www.ontariohumanrightsreview.org that contains information concerning the Review.  On the website, I indicated that my Terms of Reference include a commitment to review the following:

 

           Whether the redesigned Human Rights Tribunal of Ontario (HRTO) is providing quicker and direct access for applicants and a fair dispute resolution process for all parties, including respondents.

           Whether the new Human Rights Legal Support Centre (HRLSC) is effective in providing information, support, advice, assistance and legal representation for those seeking a remedy before the Human Rights Tribunal of Ontario (HRTO).

           Whether the Ontario Human Rights Commission (OHRC), in its revised role, is proactively addressing systemic human rights issues through activities such as research and monitoring, policy development, and education and training.

           Stakeholder feedback: analyze and qualify perceptions and experiences of key stakeholders, human rights advocates/experts, and the public.

           Where appropriate, the Reviewer will offer advice to the government regarding any best practices that should be supported and any advice for enhancing the effectiveness of Ontario’s human rights system.  Any advice developed should be cognizant of the challenging fiscal context for government and should provide corresponding costs and relative benefits.

As you will see from the foregoing, my mandate is limited by the words of section 57 of the Code.  I am to conduct a “review of the implementation and effectiveness of the changes resulting from the enactment of” the Human Rights Code Amendment Act, 2006 [Bill 107].  My focus will be on the extent to which the current system is delivering against universally desirable objectives such as access to justice, transparent adjudication, timely disposition of cases, and the elimination of systemic discrimination.

Having clarified my mandate, I would like to specifically address the three broad points in your letter.

 

(a) Independence of the Review

My Review is independent of government.  It is also independent of the three human rights agencies (HRTO, OHRC, HRLSC).  It is also independent of any political party, organization, individual or group of individuals.  As you know, I have been a lawyer practicing in Ontario for over 16 years.  My primary areas include employment and human rights law.  My clients have included many persons with disabilities as well as businesses, employers, employees, unions, non-profit organizations and individuals.  I have assisted human rights applicants (formerly called complainants) and respondents.  Although I was appointed by the Attorney General of Ontario, my selection of what issues to examine, the procedural and substantive conduct of the Review (including public consultations), and the content of my final Report will be guided by the feedback I receive from conducting the Review and by my professional judgment of what is in the best interests of Ontarians.  The Ministry of Attorney General is available to provide me with information on the human rights system or logistical support but I remain independent of government.

 

(b) Questions the Review Should Ask

 

I have noted the questions that you would like me to ask and many of them relate to statistical data that you have requested, by separate correspondence, from the HRTO, OHRC and the HRLSC.  I have contacted and met with those agencies and have asked them to cooperate fully with my independent Review.  Since the start of my Review, a number of individuals and organizations have similarly identified questions or areas of concern that I should examine.  I will take all of these questions and suggestions into consideration as I conduct the Review.  The consultation paper that I will provide on the Review’s website in the next few weeks will elaborate on those areas that I consider, at least on a preliminary basis, to warrant examination and to which I hope to attract public comment.

 

(c) How the Independent Review will Consult the Public

 

In my consultation paper I will elaborate on this point, however, I can advise that I will be holding a number of open and accessible public hearings throughout Ontario.  The consultations will be mindful of the needs of persons with disabilities.  The consultations will occur in select cities and towns across Ontario and I will identify a preliminary list of those locations in my consultation paper.  The Review's website will eventually provide specific information on the dates, timing, venues and other information concerning these meetings.  Notice of the consultations will be available in a variety of accessible formats.

In addition to these types of open public consultations, I will be accepting written submissions and conducting one-on-one or smaller group meetings where I believe that the nature of the individual or organization's concern is better handled through a personal meeting.  A number of individuals and organizations including some persons with disabilities have had experiences that may be difficult or inappropriate to share in a public forum and I do not want to lose their input by only having formal, public meetings.  I wish to be flexible in my approach to hearing from the public, and I am also exploring whether technologies like videoconferencing will provide some communities or individuals with better access to the Review.  I am certainly aware of Mr. Beer's Review of the Accessibility for Ontarians with Disabilities Act, 2005, and I also thank you for your organization's suggestions as to how to conduct an accessible process.

 

I trust that the foregoing is of assistance to your members and I look forward to their constructive participation in the Review.

Yours very truly,

“SIGNED COPY”

Andrew Pinto

AP:ar

cc:        Michael Gottheil

Executive Chair, Social Justice Tribunals Ontario michael.gottheil@ontario.ca

            Barbara Hall

Chief Commissioner, Ontario Human Rights Commission barbara.hall@ohrc.on.ca

            Kathy Laird

Executive Director, Human Rights Legal Support Centre klaird@hrlsc.on.ca

            David Wright

Associate Chair, Human Rights Tribunal of Ontario david.wright@ontario.ca