Our Campaign for Strong, Effective Implementation of the AODA
AODA ALLIANCE’S BRIEF TO STANDING COMMITTEE ON GOVERNMENT AGENCIES REVEALS BROKEN GOVERNMENT COMMITMENTS ON REFORMS TO HUMAN RIGHTS ENFORCEMENT
February 12, 2009
The AODA Alliance’s Brief on the Human Rights Tribunal of Ontario, submitted to the Ontario Legislature’s Standing Committee on Government Agencies for its February 9, 2009 public hearings, documents in detail how the McGuinty Government has broken several important commitments on what discrimination victims would experience in the reformed system for enforcing human rights in Ontario.
The 18-page text of the brief, set out below, does not include the six appendices at the back of the brief. You can download the entire brief, including all the appendices, by clicking on:
Two of those appendices, Appendix 4 and Appendix 5, are in graphic form. These cannot be read by screen readers for computer users with vision loss. These are two organization charts for the Ontario Human Rights Commission. The Human Rights Commission provided these to us in graphical format. The key points that we make based on those organization charts are spelled out in the brief itself.
We also encourage you to download and listen to the MP3 file of the AODA Alliance’s February 9, 2009 presentation to the Standing Committee. You can get it at:
You can also read the text of that presentation at:
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ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
BRIEF TO THE ONTARIO LEGISLATURE’S STANDING COMMITTEE ON GOVERNMENT AGENCIES FOR HEARINGS ON THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
FEBRUARY 6, 2009
The Accessibility for Ontarians with Disabilities Act Alliance submits this brief to the Ontario Legislature’s Standing Committee on Government Agencies, for its February 9, 2009 Public Hearings on the Human Rights Tribunal of Ontario. We welcome this opportunity to provide input to the Legislature on the operations of the Human Rights Tribunal of Ontario since the implementation of Bill 107 on June 30, 2008. We appreciate the invitation to appear before this Standing Committee.
2. WHO ARE WE?
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."
To learn about us, visit: http://www.aodaalliance.org.
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 membership from the ODA Committee's broad, grassroots base. To learn about the ODA Committee's history, visit: http://www.odacommittee.net.
In 2006 and afterwards, the AODA Alliance took active part in public debates over Bill 107.
3. WHAT IS BILL 107?
The Ontario Human Rights Code 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 and 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, up to the point of undue hardship. Among other things, it requires organizations in the public and private sectors to remove existing barriers to persons with disabilities, and to prevent the creation of new barriers.
The Human Rights Code is the bedrock underpinning the Accessibility for Ontarians with Disabilities Act 2005. The AODA is a new law that aims at achieving a barrier free Ontario for persons with disabilities within twenty years.
The Human Rights Code didn't originally forbid disability discrimination. People with disabilities had to fight long and hard to win legal protection for their human rights, back in the late 1970s and early 80s.
In 2006, twenty-five years after we first won legal protection for our human rights in Ontario, the McGuinty Government brought forward Bill 107. It privatized enforcement of human rights in Ontario.
Before Bill 107, for almost half a century, it was the role of the Government to publicly investigate and prosecute those who illegally discriminate, contrary to the Ontario Human Rights Code. This was done by the Ontario Human Rights Commission, a public law enforcement agency.
The McGuinty Government’s controversial Bill 107 was passed on December 2006. It went into effect on June 30, 2008. It dramatically changed the way a discrimination victim enforces his or her human rights in Ontario.
Before Bill 107, discrimination victims had the right under the Human Rights Code to file a discrimination complaint with the Human Rights Commission, to have that Commission publicly investigate it (if it wasn’t trivial), and to have the Commission publicly prosecute it, if there was enough evidence and the case could not voluntarily settle. Under Bill 107, victims of discrimination can no longer go to the Human Rights Commission to publicly investigate and prosecute their individual human rights complaints. Instead, they must investigate and prosecute their own cases and enforce their own human rights without the case being spearheaded by the Human Rights Commission.
4. SUMMARY OF OUR BRIEF
Our brief is summarized as follows:
a) These public hearings on the Human Rights Tribunal are especially important. They give us our first chance to appear before the Legislature to raise concerns regarding Bill 107. This is because in 2006, the McGuinty Government used its majority in the Legislature to shut down further public hearings on its widely-criticized amendments to the Human Rights Code.
b) When it passed Bill 107, the McGuinty Government made several important commitments to privatize the enforcement of human rights in Ontario. It is now evident that several of these commitments are not being met.
c) We identify important information that this Standing Committee needs, to be able to fully and effectively review the work of the Human Rights Tribunal, and the closely-related Human Rights Commission and Human Rights Legal Support Centre. We were unable to obtain some of this important information.
So far, Bill 107 has just shuffled the human rights backlog from the Human Rights Commission to the Human Rights Tribunal. It has not cleared the backlog.
e) New Human Rights Tribunal procedural rules make it vital for discrimination victims to have a lawyer. Yet, at the Human Rights Tribunal, most discrimination victims are unrepresented. This violates the McGuinty Government’s pledge that all discrimination victims would get a lawyer at Human Rights Tribunal proceedings.
f) Bill 107 was supposed to eliminate the gatekeeper in the human rights system. Yet the Human Rights Legal Support Centre has become a new gatekeeper in that system.
g) The new tribunal rules of procedure threaten to create unfair hearings at the Human Rights Tribunal.
h) The Human Rights Commission has been substantially eviscerated under Bill 107.
5. OUR FIRST CHANCE TO ADDRESS A STANDING COMMITTEE OF THE LEGISLATURE ON BILL 107
We welcome this, our first opportunity to address a Standing Committee of the Legislature on Bill 107. We are one of the many community organizations which the McGuinty Government barred from presenting our concerns and recommendations on Bill 107, at Standing Committee hearings on Bill 107 in 2006. This is because on November 21, 2006, the McGuinty Government passed a widely-condemned closure motion. That closure motion cancelled further public hearings on Bill 107 that the McGuinty Government had promised, advertised and scheduled. The NDP and Conservative parties commendably voted against that closure motion.
It was a cruel irony that that closure motion was passed five years to the day after the same Liberal Party, while in opposition, voted against a Harris Government closure motion, on November 21, 2001, in connection with public debates on the Harris Government’s Bill 125, the proposed Ontarians with Disabilities Act 2001. The McGuinty Government’s Bill 107 closure motion cancelled a Standing Committee hearing at which we and others were already scheduled to appear. For more information on that closure motion, visit: http://www.aodaalliance.org/reform/default.asp
6. KEY MCGUINTY GOVERNMENT COMMITMENTS ON BILL 107
When this Standing Committee reviews the Human Rights Tribunal, we recommend that it assess whether that Tribunal, as well as the closely-related Human Rights Commission and the Human Rights Legal Support Centre, are fulfilling all the commitments that the McGuinty Government made in connection with Bill 107. During the public debates over Bill 107 and afterward, the McGuinty Government made numerous important commitments on what it would achieve, including, among others, the following:
- Commitment of free legal representation for all human rights complainants.
- Commitment that the Human Rights Legal Support Centre will investigate the cases of people they represent.
- Commitment of the Human Rights Legal Support Centre to meet with everyone who wants legal representation.
- Commitment to provide legal services across Ontario.
- Commitment of Human Rights Legal Support Centre to pay for expert witnesses for their clients.
- Commitment to having human rights cases decided within one year of filing a complaint under Bill 107.
- Commitment that legal support be provided to all human rights claimants, regardless of income.
- Commitment to establish Anti-Racism Secretariat and Disability Rights Secretariat at the Human Rights Commission.
- Commitment that Human Rights Commission will become stronger force for human rights.
- Commitment that Bill 107 responds to the Cornish and LaForest reports on human rights reform.
(For documentation of these commitments, see Appendix 1.]
7. IMPORTANT INFORMATION THIS STANDING COMMITTEE NEEDS TO EFFECTIVELY REVIEW THE HUMAN RIGHTS TRIBUNAL
To assist this Standing Committee with its important review of the Human Rights Tribunal, on January 28, 2009 we wrote to the heads of the Human Rights Commission, the Human Rights Tribunal, and the Human Rights Legal Support Centre, to ask for key information on their operations under Bill 107. The information we requested is all of a kind that these public agencies can reasonably be expected to track. (See Appendix 2: AODA Alliance January 28, 2009 information requests to the Human Rights Commission, the Human Rights Tribunal, and the Human Rights Legal Support Centre, and February 5, 2009 follow-up requests, addressed to the Human Rights Tribunal and Legal Support Centre.)
Wherever possible, in this brief, we have taken into account information that these agencies provided to us as of Thursday, February 5, 2009. We are still reviewing this information, some of which arrived just as we were finalizing this brief. It preliminarily appears that the Human Rights Commission has answered all our questions. The Human Rights Tribunal and Legal Support Centre answered some, but not all of our inquiries.
An important example of an area for which we couldn’t get any information, concerns how often “public interest” remedies are being sought when discrimination cases are resolved under this new Bill 107 regime. “Public interest” remedies are constructive remedies which aim at preventing an organization from discriminating again in the future. During 2006 public debates over Bill 107, we and others voiced a concern that if the Human Rights Commission isn’t involved in all or most individual discrimination cases, there could be a dramatic drop in the number of public interest remedies issued, either in settlement agreements or Tribunal orders. It has been the Human Rights Commission’s responsibility to be in the lead in seeking public interest remedies. If the number of these public interest remedies drops (e.g. because human rights claimants settle their cases for a cash payment), this weakens the Code’s vital goal of preventing future discrimination.
We wanted to monitor this important issue. We asked the Tribunal to let us know:
“8. In how many or what percentage of cases settled or resolved before the Tribunal since June 30, 2008, and in which the Human Rights Commission was not taking part, were public interest remedies included as part of the terms of resolution?
9. How many hearings have taken place before the Tribunal since June 30, 2008, in which the Human Rights Commission took no part? Of these, in how many were public interest remedies requested? Of those, in how many were public interest remedies ordered by the Tribunal?”
The lack of information, on this and other important areas, is a very serious problem. We note that a reason we were given for some of these agencies not providing all the information requested was that some of the requested information isn’t currently being tracked. These public agencies have responsibility for the human rights system in Ontario. We respectfully suggest that they should be tracking all the information set out in our information requests. This information is essential for these agencies to be held publicly accountable.
Moreover, under s. 57 of Bill 107, three years after this legislation goes into effect, the government must appoint an independent inquiry, to consult the public and report on the effectiveness of Bill 107’s changes to the Human Rights Code. The data which we have requested of the Tribunal, the Commission, and the Legal Support Centre is all obvious information which these public agencies should be tracking, to manage their operations properly, and to ensure that the three-year statutory review of the Human Rights Code will be effective.
8. SHUFFLING THE HUMAN RIGHTS BACKLOG FROM THE HUMAN RIGHTS COMMISSION TO THE HUMAN RIGHTS TRIBUNAL
One of the McGuinty Government’s main reasons for Bill 107 was to clear the widely-criticized, lengthy backlog of discrimination cases at the Human Rights Commission. We and many others commended the Government for its desire to fix that longstanding problem.
Throughout the 2006 public debates over Bill 107, we and many others voiced a strong concern that Bill 107 would not clear this backlog; it would instead merely shuffle this backlog from the front door of the Human Rights Commission to the front door of the Human Rights Tribunal.
The information we have received to date from the Human Rights Tribunal, the Human Rights Commission, and the Human Rights Legal Support Centre shows that our concern was well-founded. There is now a very substantial backlog at the Human Rights Tribunal. It is likely to grow over the next weeks or months.
Since June 30, 2009, there are 1,015 new and still-unresolved cases at the Tribunal, which were brought as new applications under Bill 107. In addition, there are some 830 unresolved cases, which the complainants transferred from the Human Rights Commission to the Tribunal between June 30 and December 31 that are still unresolved. On top of that, there are at least 400 more cases (discounting for multiple cases on the identical issue which the Tribunal may be bundling) that are now before the Tribunal, after being referred there by the Human Rights Commission under the old regime. This is a total of over 2,200 cases, now in the Tribunal backlog.
That backlog will quickly grow even bigger in the next weeks. The Human Rights Commission has advised us that the number of unresolved complaints under the old regime that were remaining at the Commission on December 31, 2008 was approximately 1,978. As of January 1, 2009, the Human Rights Commission has lost any authority to deal with those cases. That residual backlog at the Human Rights Commission now has the right to join the line-up at the Tribunal. If those cases are added to the current Tribunal backlog, the total rises to 4,200.
In other words, if a new discrimination victim now comes forward with a new human rights complaint, he or she may have to line up at the Tribunal door behind somewhere between 2,200 and 4,200 cases ahead of them.
We were advised that the Tribunal has 23 full-time adjudicators (the chair and all the vice-chairs) plus 22 part-timers. We have no information on how often the part-timers work, hearing cases. In any event, that number of adjudicators cannot possibly hear all the cases now at the Tribunal or about to arrive there, and fulfil the Government’s claim of hearings within one year, for any discrimination victim who wants a hearing, even if all the Tribunal members didn’t eat or sleep for the next year.
If most of the cases in the backlog settle, that will reduce this backlog. Of course, there is value in cases settling without a hearing.
However, the critics of the old Code were vociferously critical of the Human Rights Commission's resolving most cases without a hearing on the merits. They repeatedly quoted and condemned the percentage of cases resolved under the old system, without a hearing. If the new system does the same in this regard as the old system, it would not end up yielding the benefits promised.
This backlog may not rise all the way from the 2,200 known to be at the Tribunal now, to our projected 4,200. Some of those who kept their cases at the Human Rights Commission until the end of 2008 may now give up, rather than pressing forward, especially if they cannot get a lawyer. This would fly in the face of the Government’s promises about speeding up the process and clearing the backlog. The McGuinty Government and Bill 107’s proponents decried a situation where discrimination victims just give up, due to the delays in the system.
Of course we fully understand that the Human Rights Tribunal is still in a transition process. However, it is still entirely appropriate to ask whether the new system is clearing the backlog or simply allowing it to build up, while shuffling it from one door to another. It is also worthwhile to inquire of the Human Rights Tribunal how long it thinks it will take to reduce the current backlog.
9. NEW HUMAN RIGHTS TRIBUNAL PROCEDURAL RULES MAKE IT VITAL FOR DISCRIMINATION VICTIMS TO HAVE A LAWYER
The Government said a core objective of Bill 107 was to give discrimination victims more practical, effective and timely access to hearings at the Human Rights Tribunal, so they can get remedies for the discrimination they have suffered. As stated earlier, before the passage of Bill 107, in any case that went to the Tribunal the Human Rights Commission had carriage of the complaint as public prosecutor. The complainant had the right to bring his or her own lawyer to the Tribunal. However, he or she did not have to bring a lawyer. Complainants often didn’t bring their own lawyer to Tribunal hearings, mindful of the fact that the Human Rights Commission typically sent a lawyer to publicly prosecute their case.
Since passage of Bill 107, the Human Rights Tribunal has adopted new rules of procedure. As a practical matter, these new rules make it absolutely essential for a discrimination victim to have a lawyer representing him or her from the very outset of the process, when filling out their application form, and throughout all formal and informal Tribunal proceedings. The AODA Alliance alerted the Tribunal that its proposed Rules of Procedure suffered from this serious problem, in its detailed March 28, 2008 brief to the Tribunal, on the Tribunal’s proposed Rules of Procedure. (Appendix 3: AODA Alliance March 28, 2008 Brief to the Human Rights Tribunal.)
To summarize our concerns set out in that brief, no unrepresented lay person could navigate those rules without serious risk. The Tribunal has a new, longer, more detailed application form than in the past. It is not safely completed without a lawyer. Once in the front door, the rules set up a series of demanding procedural steps and exacting time-lines, leading to a hearing. All of these are very risky to navigate without being represented by a lawyer.
Regrettably, the Tribunal rejected our main feedback when developing its rules of Procedure. It did this despite the fact that other voices in the disability community and elsewhere endorsed our brief.
During consultations on its Rules of Procedure, the Tribunal stated that it was trying to use accessible, plain language in its long, detailed application form. Whether or not the form uses plain language, that application form, and the Rules of Procedure that relate to it, remain a trap for the unrepresented discrimination victim.
10. THE REALITY AT THE HUMAN RIGHTS TRIBUNAL – MOST DISCRIMINATION VICTIMS ARE UNREPRESENTED
As we detail in Appendix 1, during the 2006 debates on Bill 107 the McGuinty Government promised that all discrimination victims would receive full public independent legal representation by counsel at Tribunal proceedings. As is also detailed in Appendix 1, the McGuinty Government said Bill 107 implements two key reports on human rights reform, the Cornish Report and the La Forest Report. Excerpts of these reports in Appendix 1 show that it is fundamentally unfair to subject a discrimination victim to a human rights hearing without proper representation.
The reality since June 30, 2008 falls miles short of these Government commitments. We understand from information that the Human Rights Tribunal is to table at these Standing Committee hearings, that the Tribunal estimates that only some 40% of claimants who filed new human rights applications under Bill 107 since June 30, 2008, have legal representation when dealing with the Tribunal.
For another category of human rights cases, we know from the Human Rights Legal Support Centre’s website that that Centre refused, as a matter of posted policy, to provide legal representation to any complainant who had a case at the Human Rights Commission on or after June 30, 2008, and who opted over the next six months to take their case from the Commission and lodge it directly with the Human Rights Tribunal. The Human Rights Legal Support Centre website states:
"The Human Rights Legal Support Centre cannot assist you in deciding if you should abandon a complaint currently at the Commission or in completing the Tribunal’s short-form application to transfer your complaint from the Commission to the Tribunal’s expedited process."
We understand from the Human Rights Tribunal that over 900 cases jumped to the Tribunal from the Human Rights Commission, under the Tribunal’s transition rules. The Tribunal advises us that it has not tracked what percentage of those claimants had a lawyer. It would likely not be any higher than the 40% of new applicants who had legal representation. The Human Rights Legal Support Centre has provided legal representation to some new applicants. In contrast, it has refused categorically to provide any legal representation to complainants who had their case at the Human Rights Commission before Bill 107 came into force.
It is fundamentally unacceptable for most human rights claimants before the Tribunal to have no lawyer. This is especially so since it is so important to have a lawyer to safely navigate the Tribunal’s new Rules of Procedure. This creates a very serious barrier to access to justice for discrimination victims.
The need for discrimination victims to have effective legal representation throughout the Human Rights Tribunal process is amplified by the fact that quite often, respondents at the Human Rights Tribunal [the parties accused of discrimination] are represented by legal counsel. We asked the Human Rights Tribunal for information on the percentage of cases in which the claimant is not represented by counsel, but the respondent is represented by counsel. No information on this was provided. It appears that the Tribunal may not be tracking that information. This is critically important information that should be tracked to assess the effectiveness and fairness of Bill 107.
If the discrimination victim isn’t represented, but the respondent has a lawyer, it is not a fair fight. It is important not to underestimate the resources that a respondent can marshal against a discrimination victim. As one example, the Toronto Transit Commission spent fully $450,000 of the taxpayers' money defending two human rights cases, to require TTC to audibly announce all subway stops and bus stops, for the benefit of passengers with vision loss. The Ontario Government, municipal governments, school boards, colleges and universities, hospitals and other major organizations can mount similar well-funded defence teams against a single discrimination victim.
11. HUMAN RIGHTS LEGAL SUPPORT CENTRE – THE NEW GATEKEEPER
In 2006, the McGuinty Government and Bill 107’s major proponents argued that a fundamental problem with the old system was that at the doorway to the human rights system, there was a gatekeeper, the Human Rights Commission, which could decide if your case would get a hearing at the Human Rights Tribunal. That was wrong, they said. There should be no gatekeeper, they argued. We were told Bill 107 would get rid of this gatekeeper barrier.
We have now confirmed that under Bill 107, the old gatekeeper (the Human Rights Commission) has in effect been replaced by a new gatekeeper, the Human Rights Legal Support Centre. For practical purposes, the Human Rights Legal Support Centre now decides for so many cases whether a discrimination victim gets a lawyer, and if so, whether the lawyer will just advise him or her, or will fully represent him or her throughout the Tribunal’s proceedings. If he or she does not get a lawyer, to navigate complex and exacting Tribunal rules for which they need a lawyer, this will often be tantamount to being turned away from the human rights system. For the government to tell a discrimination victim that they can bring their own case without a lawyer would be hollow rhetoric, not a meaningful right.
No matter how hard-working and dedicated be its staff, the Human Rights Legal Support Centre cannot represent all discrimination claimants before the Tribunal. The Human Rights Legal Support Centre has less than half the budget that the Ontario Human Rights Commission used to get. It isn’t possible for that Centre to do a better job than did the backlogged Human Rights Commission, with far, far less money.
Moreover, as indicated earlier, it is now clear from the Tribunal’s information that the majority of discrimination claimants before the Human Rights Tribunal are not represented by the Human Rights Legal Support Centre's lawyers. Moreover, statistical information disclosed to us in preparation for these hearings by the Human Rights Legal Support Centre show that only a fraction of the thousands of individuals who have called the Human Rights Legal Support Centre since June 30, 2008 have received legal representation at the Tribunal by that Centre. We differentiate between a discrimination victim getting some advice, while being left to represent themselves, and a discrimination victim receiving full legal representation throughout the Tribunal process. The latter was what the McGuinty Government promised and what discrimination victims need under Bill 107 and the Tribunal’s new Rules of Procedure.
Unfortunately, the Human Rights Legal Support Centre has not been able to fully answer a number of the questions we presented to them, that are critical to an assessment of this question. From the information we received from the Legal Support Centre, it is clear that the Centre is not providing full legal representation throughout the tribunal process to every discrimination claimant who contacts the centre for assistance. The Legal Support Centre appears to be making its own internal decisions on which cases to act on, and on the extent to which they will provide legal support and representation. This is the very "gatekeeping" role which the Human Rights Commission previously had.
It is especially important for the Standing Committee to investigate how the Legal Support Centre is making these decisions, and how it will be held publicly accountable for the gatekeeping decisions it makes. Under the old system, there was substantial public interest and attention on how the Human Rights Commission discharged its gate-keeping role. Bill 107’s proponents were in the lead in criticizing how the Commission did this, and condemning the lack of public accountability. We recommend that the Standing Committee explore questions such as these: Does the Legal Support Centre make such decisions behind closed doors? Does the Legal Support Centre give a discrimination victim written reasons for any decision not to provide them with legal representation at the Tribunal?
12. NEW TRIBUNAL RULES OF PROCEDURE THREATEN UNFAIR HEARINGS
In 2006, we warned the Government and public that Bill 107 gives the Human Rights Tribunal excessive powers to develop unfair rules of procedure. Specifically, Bill 107 gives the Human Rights Tribunal power to override the Statutory Powers Procedure Act.
For a hearing to be fair, the parties to the hearing must enjoy certain basic, inalienable rights. These rights have been time-honoured and time-tested. These include, for example,:
A party can bring a lawyer to represent them.
A party can call relevant witnesses.
A party can cross-examine witnesses who testify for the other side.
A party is entitled to advanced specific notice of any charges of misconduct against them.
In Ontario, during hearings held by non-court Tribunals, these rights are specifically spelled out in the Statutory Powers Procedure Act (SPPA). These rules are summarized by the term "due process."
Under the old Human Rights Code before Bill 107, Human Rights Tribunal hearings had to obey the rules in the SPPA. In sharp contrast, Bill 107 gives the Tribunal arbitrary power to make rules of procedure for the Tribunal's hearings, which can override and disregard the SPPA. The right to a fair hearing should never be sacrificed for expediency's sake.
On May 8, 2006, during Second Reading debate on Bill 107, Attorney General Michael Bryant said that one of the goals of this bill's reform is to provide due process to those who appear before the Human Rights Tribunal. He stated:
"The purpose of a direct-access system, I have said before, is partly to address the delays and the inability of the commission to deal with systemic issues, but it is also partly to provide access to those, give that due process and give timely justice to those who appear before the Human Rights Tribunal."
In 2006, the McGuinty Government disregarded our call (a call which was echoed by many others) that the Human Rights Tribunal should not have the excessive power to disregard the SPPA. After Bill 107 was passed, we called on the Human Rights Tribunal not to use this arbitrary power. (See Appendix 3: Our brief to the Tribunal on its proposed Rules of Procedure. See also Appendix 6: David Lepofsky’s guest column in the May 8, 2008 Toronto Star.) A number of other community organizations endorsed our position.
Unfortunately, the Human Rights Tribunal rejected these recommendations. It enacted rules of procedure which flatly contradict the right to a fair hearing, guaranteed by the Statutory Powers Procedure Act. We strongly encourage the Standing Committee to vigorously inquire into the Tribunal's closed-door deliberations that led to the enactment of those unfair rules of procedure, and to the Tribunal’s disregarding community input that opposed such rules being enacted. We also recommend that the Standing Committee thoroughly investigate how the Tribunal is using this power.
We here bring to the Standing Committee’s attention one Tribunal ruling, under those new Rules of Procedure. It exemplifies the risk of unfairness, when a Tribunal is empowered to disregard the basic requirements of the Statutory Powers Procedure Act. In Persaud v. Toronto District School Board, 2008 HRTO 25, Interim Tribunal Decision May 1, 2008 by Tribunal Vice-Chair Mark Hart, the Tribunal took the extraordinary step, before the hearing had even begun, to dictate to the parties how much time each witness could testify, in chief or in cross-examination. The Tribunal ruled in material part:
“ With regard to the parties’ request for 62.5 hearing days, and with all due respect, the estimated length of hearing seems wholly out of proportion to the matters at issue and the scope and extent of evidence that is reasonably required to determine this matter. Bearing in mind the need to fairly and justly, yet also expeditiously, determine this matter what follows below is my estimate of the time which should be required to complete an effective examination-in-chief and cross-examination of the proposed witnesses, which includes the three former personal respondents to the reprisal complaint. These time estimates will not be applied rigidly but, in my view, they are both fair and reasonable. Where further time is requested, I will want to be satisfied that effective use has already been made of the time allotted, what areas of examination remain to be covered and why those areas are relevant to the determination of this matter. I have not included time estimates for any potential expert witnesses, as no determination has yet been made as to whether expert evidence is necessary in this case; and a process was set out on the pre-hearing conference call to make this determination.
|Andrew Persaud||1 day||1 day|
|Raymond Persaud||½ day||½ day|
|Pat Persaud||½ day||½ day|
|Natasha Persaud||½ hour||½ hour|
|Elis Boci||1 hour||1 hour|
|Arlind Qatapi||1 hour||1 hour|
|David Bartfai||1 hour||1 hour|
|Suzana Greenaway||1 day||1 day|
|Paul Corner||½ hour||½ hour|
|Roy Evely||½ hour||½ hour|
|Hartley Rosen||½ hour||½ hour|
|Anthony Masciello||½ hour||½ hour|
|Heidi Gollert||½ hour||½ hour|
|Jan Stewart||1½ hours||1½ hours|
|Sonja Weber||½ hour||½ hour|
|Anna Serykh||1 hour||1 hour|
|Chris Nokes||1 hour||1 hour|
|Andrew Robinson||1 hour||1 hour|
|Peter Donaldson||1 hour||1 hour|
|Harold Wright||1 hour||1 hour|
|Roberta Bergman||1 hour||1 hour|
|Renata Gonsalves||1 hour||1 hour|
Note: The time estimates for the examinations-in-chief of the Commission’s witnesses include examination by both the Commission and the complainant, as do the time estimates for cross-examination of the respondents’ witnesses.
 With regard to the remaining witnesses on the lists submitted by the parties, if any party still wishes to call any of these witnesses to give evidence at the hearing, I will want to know who these individuals are and what relevant evidence they have to contribute to this proceeding. In addition, if a party takes issue with the time estimates for the examination of any of the witnesses, the party may provide submissions seeking a modification of the time for examination or cross-examination together with their witness summaries in advance of the hearing.
 For all of the foregoing reasons, the Tribunal makes the following Order:
…d) by the time the parties are required to serve and file their witness summaries in advance of the hearing, the parties shall serve and file any submissions:
i) regarding why a longer or shorter time for examination or cross-examination may be required for any witness listed on the time estimates set out in paragraph 33 of this decision; and
ii) regarding to any other witnesses any party wishes to call to give evidence, who this witness is, what relevant evidence they have to contribute to this proceeding, how long their evidence is expected to take, and why it is necessary to call their evidence.”
We have no involvement in the specific case in which that Tribunal ruling was made. We express no views on the specifics of that human rights case. However, we point to this ruling as illustrating our concerns with the Tribunal’s Rules of Procedure.
a) We question how the Tribunal can know in advance how long a witness needs to testify in chief to give their core evidence. The Tribunal has not interviewed the witness, is not conducting the case for the discrimination victim or respondent, and doesn't know all the information that a party to the proceeding nose in order to formulate these assessments.
b) The Tribunal would know even less about how much time would be needed for cross-examination. This difficult part of the trial process is an art, not a science. It is quite often very unpredictable. The cross examiner usually has not had the opportunity to interview the witness, since the witness is being called by the opposing party. Cross examiners must change and adapt their strategies in the middle of cross-examination on a moment's notice, often without being able to predict this in advance.
c) In this ruling, the same amount of time is given for examination in chief as was given for cross-examination of each witness. Yet quite often, a witness's evidence in chief can be shorter than in cross-examination. At times, it can be the reverse. This is a very fluid process. It changes as the trial unfolds.
d) This is made even more complicated where, as here, the allocated times must be shared by different parties. If the Tribunal gives the human rights commission and the complainant a total of one hour for examining a witness, which they must share, that places these two parties in the difficult position of potentially having to wrestle over that limited time. The examination in chief might not unfold as expected. Witnesses often testify differently in chief from what was expected when the witness was being prepared for testimony by the party calling them.
e) The Tribunal may have been trying to accommodate these concerns by leaving it open to the parties to ask for an extension of the time allocated to them. However, the ruling requires a party seeking an extension, to first show that they made effective use of the time allocated to them, before they can get an extension. Yet by this approach, the party questioning the witness will not know whether they will get an extension until they have used all or most of the time allocated to them. This places them in a hopeless Catch-22. They won’t know if they will get that extension until it is too late.
Under the SPPA, the Tribunal has the power to stop questioning of a witness that is irrelevant or unduly repetitious. This should be sufficient to prevent the kinds of problems that the Tribunal seems to be trying to address, without sacrificing the hearing’s fundamental fairness.
13. THE EVISCERATED HUMAN RIGHTS COMMISSION
We recommend that the Standing Committee's examination of the Human Rights Tribunal should, of necessity, include an appraisal of the Human Rights Commission’s effectiveness under Bill 107. In 2006, the Government made important commitments about the Human Rights Commission under Bill 107. It said the Human Rights Commission would be strengthened, not weakened. The Commission would be freed up to devote its resources to itself launching public interest cases at the Tribunal. It would be in the vanguard, litigating against systemic discrimination. It would be able to far more effectively do this under Bill 107, without having to direct its resources to handling individual discrimination cases.
After seven months under Bill 107, we have learned that the Human Rights Commission is not meeting these commitments. It is a mere shadow of its former self. Beyond public education and policy activities, it has virtually disappeared as a relevant player in the enforcement of human rights in Ontario.
The Human Rights Commission’s resources were not freed up and re-directed to investigating and litigating public interest cases. Instead, the Government took away much if not most of those resources from the Commission. The Commission has shrivelled down from its high point of around 200 staff some years ago, to under 60 positions.
We offer six important observations about the gutted Human Rights Commission under Bill 107.
a) Is the Human Rights Commission litigating public interest cases?
In 2006, the McGuinty Government committed that the Human Rights Commission would play an important, leading role in combating systemic discrimination, by investigating and launching its own public interest cases before the Human Rights Tribunal. Yet the Human Rights Commission has revealed to us that it has not launched a single Commission-initiated case before the Tribunal since Bill 107 went into effect on June 30, 2008. Under the old Human Rights Code, it had a broader power to do this than exists under Bill 107. The Commission advises us that it only has one Commission-initiated case before the Tribunal that was instituted under the old Code, before Bill 107 went into effect.
b) Is the Human Rights Commission using its power to investigate systemic barriers as a prelude to launching a Commission-initiated human rights complaint at the Tribunal?
In 2006, the McGuinty Government added provisions to Bill 107 to let the Human Rights Commission initiate inquiries into public issue matters, like systemic discrimination, and to investigate and gather evidence. We have now learned from the Human Rights Commission that it has only initiated one such inquiry under Bill 107, with respect to the issue of providing housing for students. Even then, the Commission has not yet used its investigative powers in section 29.1 of Bill 107.
We have also learned from documents obtained from the Human Rights Commission that it is now laying off all its investigators. In its Spring 2008 Organization Chart (Appendix 4), the Commission planned to have three investigators to investigate public interest systemic barrier cases right across Ontario. In its January, 2009 Organization Chart (Appendix 5), it has eliminated those three remaining investigator positions.
Put simply, Bill 107 dramatically reduced the Human Rights Commission’s public investigation powers. The Government’s quiet re-organization of the Commission has subsequently eliminated what little remained of the Commission’s public investigation functions. We recommend that the Standing Committee investigate who is responsible for all of this.
c) Is the Human Rights Commission using its power to intervene in individual human rights applications?
In 2006, the McGuinty Government said that one of Bill 107’s positive features was that the Human Rights Commission would have the power to intervene in individual human rights applications that discrimination victims brought before the Tribunal e.g. to present matters of broad public importance.
We have learned from the Human Rights Commission that since Bill 107 came into effect on June 30, 2008, the Human Rights Commission has only intervened in one new human rights application before the Tribunal.
d) Has the McGuinty Government obeyed the Human Rights Code requirement to establish Disability Rights and Anti-Racism Secretariats at the Human Rights Commission?
In 2006, the McGuinty Government promised that it would establish within the Human Rights Commission a Disability Rights Secretariat and an Anti-Racism Secretariat. Sections 30 and 31 of Bill 107 require the Government to establish these two new secretariats at the Human Rights Commission.
Fully seven months after Bill 107 was proclaimed in force, and over three years since the Government first announced that it would establish these new offices, the Human Rights Commission still has no Disability Rights Secretariat and no Anti-Racism Secretariat.
In 2006, we and many others thought the Government’s promise of those Secretariats was mere window dressing. We stood to be proven wrong. After the Government legally obliged itself to establish these secretariats, but failed to do so, they don’t even rise to the threshold of window dressing.
e) Has the Human Rights Commission made disability discrimination a priority in its new Strategic Plan?
In 2006, during Bill 107 public debates, the McGuinty government made it appear that disability issues would be a big priority at the reformed Human Rights Commission. Under the old Code, disability discrimination cases were the largest category of discrimination claims that the Human Rights Commission received.
In the past days, we have learned that the Human Rights Commission's new January 2009 Strategic Plan does not generally make disability a major priority for the Human Rights Commission. Among its list of major themes on which the Commission will be focusing is mental health, but no other physical, mental or sensory disability issue. That Strategic Plan states:
The Commission has identified the following themes as our priority areas of work during the term of this strategic plan.
- race/hate crimes
- work with police
- aboriginal people
- family status
- mental Health
- legislative review
We recognize that these themes overlap; vulnerable people of many groups face barriers to housing, for example.”
Of course, the Human Rights Commission’s activities are not limited to those listed in its Strategic Plan. We acknowledge, for example, that in 2007 and 2008, the Human Rights Commission commendably tried to help support the development of strong, effective accessibility standards under the Accessibility for Ontarians with Disabilities Act. However, the Commission's outline of its major themes in its Strategic Plan clearly signals that disability will be a lower priority in the future. This makes worse the adverse impact of Bill 107 on the broad spectrum of Ontarians with mental, physical or sensory disabilities.
f) Has the McGuinty Government honoured its understanding with the disability community on the disabilities act?
Beyond the foregoing, Bill 107 remains a fundamental breach of the McGuinty Government's understanding reached with representatives of Ontario's disability community, during the development and passage of the Accessibility for Ontarians with Disabilities Act, 2005.
In the 2003 election, Premier McGuinty promised a new Disability Act with effective enforcement. After that election, the disability community consulted with the Government as the Accessibility for Ontarians with Disabilities Act was being developed. In those discussions, it was very important that nothing be done that would weaken or take away rights that persons with disabilities enjoyed under the Human Rights Code.
Several disability groups called for the new Disability Act to establish a new, independent enforcement agency to enforce removal and prevention of barriers against persons with disabilities. The McGuinty Government said Ontarians with disabilities don't need a new independent enforcement agency, because Ontario already has the Human Rights Commission, with all its powers to receive, investigate and publicly prosecute human rights complaints.
In 2005, many in the disability community applauded the final Accessibility for Ontarians with Disabilities Act 2005 as a good total package, even though it didn't include everything the community wanted. After that, in 2006, the Government decided to seriously weaken the Human Rights Commission via Bill 107. That has undermined the Accessibility for Ontarians with Disabilities Act.
The disability community negotiated the AODA on the firm premise that persons with disabilities would retain full access to the Human Rights Commission's then-existing enforcement powers. The McGuinty Government never even hinted that they might turn around and strip from the Human Rights Commission its core mandate to investigate/prosecute individual discrimination cases, at any of their many Disability Act public forums, round-tables, bargaining sessions or public hearings between 2003 and 2005. It was understood throughout that the Disabilities Act would be a supplement to the Human Rights Code and Commission. All the AODA's Provisions were designed on that firm foundation. For the Government to subsequently repeal that Commission mandate is to rip the foundation out from under the Accessibility for Ontarians with Disabilities Act, and the negotiations that led to it.
Over three years after the AODA was passed, its implementation has been too slow and too weak. More than ever, Ontarians with disabilities need a strong Human Rights Commission that makes disability discrimination a major priority, to help rectify this.
We would be pleased to return to again appear before this Standing Committee to provide further input, once we have been able to obtain and analyze all the information we have requested from the major public agencies charged with enforcing the Human Rights Code.
We recommend that this Standing Committee hold public hearings, in which members of the public can fully take part, to further explore this topic. So many were unfairly denied this opportunity in 2006, because of the Government’s closure motion.