Our Campaign for Strong, Effective Implementation of the AODA

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

EIGHT WEEKS BEFORE BILL 107 GOES INTO FULL OPERATION, IS THE NEW HUMAN RIGHTS ENFORCEMENT SYSTEM READY FOR DAY ONE?

May 2, 2008

June 30, 2008 is just around the corner. Thatís when Bill 107 goes into full operation. On that date, discrimination victims will no longer be able to go to the Ontario Human Rights Commission to conduct a public investigation of their individual human rights complaints, and to publicly prosecute it where thereís enough evidence. Starting that day, discrimination victims will have to investigate their own discrimination case, and prosecute it themselves.

The McGuinty Government has had over two years to get this new, widely-criticized system up and running. Will it be ready on Day One? An editorial in the April 21, 2008 Toronto Star, set out below, raises some serious questions. In addition, we raise these concerns:

*THE NEW HUMAN RIGHTS LEGAL SUPPORT CENTRE

Two years ago, the McGuinty Government promised that every discrimination victim would have a free publicly-funded lawyer to represent them at the Human Rights Tribunal. To see these commitments, visit: http://www.aodaalliance.org/reform/update-081806.asp

To fulfil this commitment, the McGuinty Government said it would establish a new Human Rights Legal Support Centre. We have known for some time that the McGuinty Government hasnít planned to fund that Centre sufficiently to enable it to keep that promise. That Centre will be a new human rights ďgatekeeper,Ē that decides which discrimination victims it will represent and which it will not.

We know that Toronto lawyer Raj Anand (a Bill 107 supporter) will Chair the Board of Directors of this new gatekeeper. Mr. Anand was Chief Commissioner of the Ontario Human Rights Commission (the former gatekeeper) in the late 1980s. At this late date, we still donít know who else will be on that Centreís Board of Directors, or how it will decide which cases to take up and which to turn away.

We know that the lawyers who will work at that Centre havenít even been hired yet. The Government just recently ran newspaper ads for those positions and other staff positions at that Centre. With only eight weeks to go, these lawyers and other staff must be interviewed, hired, started on the job, trained, and ready to go, all before June 30.

We have also seen no announcement that the Government has yet hired the Executive Director of that Legal Support Centre. That all-important post will be responsible for running the day-to-day operations of that Centre.

Eight weeks from now, that Centre will be expected to respond to inquiries and requests for legal advice and representation of potentially thousands of new discrimination victims who havenít yet filed human rights complaints. Also, starting on Day One, some four thousand cases now before the Human Rights Commission will have the option to switch into the new system, and to go to the Human Rights Legal Support Centre to take their cases forward. There could be quite a line-up at that Centre.

*THE ONTARIO HUMAN RIGHTS COMMISSION

The McGuinty Government promised that under this new system, the Ontario Human Rights Commission will be ďfreed upĒ to tackle public interest cases and systemic discrimination. By repeatedly talking about ďfreeing upĒ the Commission, this clearly meant that the Commission would keep the same resources, but be able to redirect them away from investigating individual discrimination complaints, and towards this sole focus of systemic and public interest cases.

We have received word that within the past three weeks, Commission staff were told that there will be very substantial layoffs as the number of staff positions at the Commission will be substantially reduced. This means that the Commission resources wonít be ďfreed upĒ for this new task. Instead, they will be significantly cut. The Government still hasnít announced publicly what the Commissionís new, reduced staffing levels or budget will be, once most of its mandate is stripped away, as of the end of 2008. AODA Alliance Human Rights Reform Representative David Lepofsky has filed a Freedom of Information request concerning this.

On April 9, 2008, the McGuinty Government issued a press release, announcing a new, once-only budget increase for the human rights system. (See their news release below). It says, among other things that this new funding is to help clear the backlog of cases at the Human Rights Commission. The McGuinty Government appears to have given an advance leak of this announcement to the Toronto Star. See the Toronto Star April 9, 2008 article below.

Had the McGuinty Government injected this funding into the human rights system three years ago, the Human Rights Commission could have cleared up its backlog, reformed and streamlined its internal processes, and implemented measures to ensure that cases were handled much more quickly. When the Government brought forward Bill 107 to privatize the enforcement of human rights in Ontario, its major reason for doing so was the Human Rights Commissionís backlog. It appears the Government in effect decided instead to maintain that backlog until now, to justify its agenda of privatizing human rights enforcement.

It appears that this announcement was carefully timed to take place just before the Human Rights Commission staff were notified of the substantial layoffs that will take place there. In other words, this budget spending announcement appears to have been aimed to create the image of expanded funding, to head off news of major downsizing at the Human Rights Commission.

Some of the numbers in this news release donít correspond with information we were given at the 2008 Budget Lock-up. We donít have the detailed figures to be able to reconcile these discrepancies. Regarding the 2008 Budget, visit:
http://www.aodaalliance.org/strong-effective-aoda/03252008-2.asp

The Governmentís news release refers to an added allocation this year to clear the current backlog. We suspect that the Commission will have to pay a substantial amount for severance packages for the many employees who will lose their jobs as the Commission is downsizing. If so, that funding doesnít serve to clear the backlog or to advance human rights. Instead, it would serve to pay for the dismantling of the public enforcement of human rights.

Until now, weíve been asking and asking the Government without success about how much funding there will be in this system. To the extent that under this newly-announced funding, money is going to clear the back-log, it is being announced and made available extremely late in the day, just weeks before the new system goes on line, and just over seven months before the Human Rights Commission will be substantially hutted of its current mandate and staffing.

This once-only funding that the Government announced on April 9, 2008 is no doubt needed because during the current calendar year the Government will be running two human rights enforcement systems, the end of the old public enforcement system and the start-up of the new, privatized Bill 107 system.

*THE ONTARIO HUMAN RIGHTS TRIBUNAL

Under the new system that Bill 107 establishes, the Human Rights Tribunal will receive and handle all discrimination complaints in Ontario. Central to its work are the Tribunalís Rules of Procedure that will dictate the rules of the game for these cases.

Eight weeks before Day One, the Tribunal hasnít finalized these rules. Discrimination victims who are in the old system, and who are trying to decide whether to switch on Day One into the new system, are left unsure what they will have to do to use the Tribunalís system. Discrimination victims who are holding off launching a case until the new system starts are left in a similar state of uncertainty, just eight weeks before Day One.

The Tribunal has proposed very troubling draft Rules of Procedure. The AODA Alliance has submitted a detailed brief with the Tribunal, setting out our concerns and recommending changes. You can see this brief at:
http://www.aodaalliance.org/strong-effective-aoda/03282008.asp

We are encouraged that an increasing number of community groups, from within the disability community and from other equality-seeking groups, have written to the Tribunal to endorse our brief. We donít know whether the Tribunal will act on our concerns when it finalizes its Rules of Procedure.

Central to these rules are the forms that a discrimination victim will have to complete to launch a discrimination case. The topic of Tribunal forms may at first sound boring. Yet the Tribunalís proposed Rules make these forms all-important. If an application form isnít properly filled out, the Tribunal can simply refuse to deal with it. If information is left out of the application form, a discrimination victim may later be barred from relying on it.

To date, the Tribunal hasnít finalized these forms, even though they will have to be finalized, publicized and ready for use on Day One. Bill 107 requires the Tribunal to hold a public consultation on any rule before it enacts it. Since the forms form part of the proposed rules, the Tribunal must hold a proper public consultation on its forms before it can adopt them.

A few of weeks ago, we learned via the grapevine that the Tribunal was holding focus groups on its forms, and was only inviting a limited number of organizations to take part in them. It was seeking input, among other things, on the proposed application formís accessibility and ease of use.

We contacted the Tribunal to find out why we were not invited to take part in these focus groups. We were advised that the Tribunal had decided to invite organizations with focused expertise on such accessibility issues. It had decided not to invite the AODA Alliance. It is hard to understand why the Accessibility for Ontarians with Disabilities Act Alliance wouldnít be a rather obvious source of expertise on accessibility.

Once we raised this, the Tribunal advised us that we could take part in the focus group if we wished. AODA Alliance member and Human rights Reform Representative David Lepofsky attended a Toronto focus group on April 14, 2008. He was given a chance to review the proposed forms, but was told that until the Tribunal posts these forms on its website in the next days, they cannot be publicly circulated, even for formulating input to the Tribunal.

Based on his assessment of the forms, he advised the Tribunal at its focus group that they are seriously problematic. They will be a trap for the unwary discrimination victim who doesnít have a lawyer. The Tribunal says it is trying to make the forms user-friendly for those discrimination victims who wonít have a lawyer, e.g. those whom the Human Rights Legal Support Centre wonít represent. It is thus 100% clear that the Tribunal anticipates that it will have a proportion of discrimination victims bringing cases forward to it who wonít be represented by a lawyer - a very troubling prospect.

At this focus group, the issue came up whether or when the Tribunal will make interpreters available for people involved in Tribunal proceedings who donít communicate in English, French or Sign Language. The Tribunal said at this focus group meeting it has never refused to provide an interpreter where needed. In sharp contrast, the AODA Alliance Brief on the Tribunalís proposed rules points out that the Tribunal has a Practice Direction that states the opposite. It states:

ďTRANSLATION AND INTERPRETATION OF HEARINGS

Sign language services are available from the Tribunal and in accordance with the French Language Services Act, R.S.O. 1990, c. F.32, the Tribunal provides translation/interpretation services from French to English and English to French for its hearings. Due to financial constraints, the Tribunal is unable to provide translation/interpretation services for any other language except in exceptional circumstances. It is expected that each party will be responsible for providing translation for its own witnesses, preferably through a court certified interpreter.Ē

The Tribunalís legal counsel, Ms. Kathy Laird (in 2006 a lead advocate for Bill 107) suggested that thereís a difference between what the practice direction says and what the Tribunal does. For the AODA Alliance, David Lepofsky pointed out that the public knows about the Tribunalís public practice direction, which is very problematic.

A matter of huge concern over this transition period is how the Tribunal will deal with the hundreds, possibly thousands of cases now in the current system, and who on Day One will be entitled to opt into the new system and go directly to the Tribunal. Bill 107 had an unusual provision to deal with this. Under section 53(4) of Bill 107, the Tribunal is required to make rules to deal with these cases which ďensure that the applications are dealt with in an expeditious manner.Ē Just eight weeks before Day One, the Tribunal hasnít made these rules. From our review of its website, it has not posted any draft rules of this sort for public consultation Ė a step it must take before making such rules.

It is very rare that legislation mandatorily requires a Tribunal to make rules. Usually legislation gives a Tribunal power to make rules if it wishes. Here Bill 107 requires the Tribunal to make rules to deal with this situation. To date it appears that the Tribunal has failed to obey this legislative requirement.

This leaves the many people in the current system in an even more difficult situation, as they make the important decision whether to stay in the old system or opt into the new system on Day One. This is not an easy decision to make in any event. If one chooses to stay in the old system, the Human Rights Commission has a limited time to finish handling the case. After that, the Human Rights Commission loses all its power to keep handling the case, if it has failed to deal with its merits or it hasnít been withdrawn or settled. The discrimination victim is then left all alone to fend for themselves in the new system on January 1, 2009.

In 2006, when the Legislature was considering Bill 107, the AODA Alliance was very active raising concern about the billís entire transition process. The McGuinty Government rammed through a series of confusing amendments on this subject that it tabled at the last minute. Its widely-criticized closure motion prevented any debate in the Legislature on these important provisions. The final provisions in Bill 107 on the transition from the old system to the new one for cases already in the system are complicated and badly written. The Tribunalís failing since then to obey its duty to make rules to clarify this transition process is therefore especially troubling.

*WHO WILL YOU CALL FOR FIRST CONTACT WITH THE NEW HUMAN RIGHTS SYSTEM?

Under the current system, the Human Rights Commission gets upward of 60,000 calls and inquiries per year. On Day One, the Commission will no longer be in the business of handling this ďintake.Ē Who will take on this role? It would seem important to know this well before the new system starts up.

At the April 14, 2008 Human Rights Tribunal focus group on the Tribunalís forms, Tribunal Chair Michael Gottheil said that it hasnít yet been determined which organization will take these calls. This contradicts the announcement at the November 2007 Toronto public forum on Bill 107, where it was said that the Human Rights Legal Support Centre will take on this role. See:
http://www.aodaalliance.org/strong-effective-aoda/02062008.asp

Send your feedback to:
aodafeedback@rogers.com

Send letters to the editor of the Toronto Star at:
lettertoed@thestar.ca

*****

The Toronto Star April 21, 2008
Editorial

Changing times for rights body

On June 30, sweeping changes to Ontario's gridlocked human rights system will come into effect.

Aimed at speeding up the resolution of discrimination cases, the controversial reforms will send complainants directly to the Human Rights Tribunal instead of funnelling them through the Ontario Human Rights Commission first. Freed from guiding individual cases through the system, the commission is supposed to refocus its efforts on systemic issues and public education. And a new human rights legal support centre is being set up to help complainants navigate their way through the process.

But as the deadline looms, questions are being raised about whether the new system will be up and running in time for the changeover.

David Lepofsky of the Accessibility for Ontarians with Disabilities Act Alliance says he and others "have been concerned for weeks and months that they wouldn't be ready, and our expectations are really being borne out."

Among his worries are that final procedural rules for the tribunal have not yet been posted. That creates uncertainty about the process for complainants filing new cases after June 30. (People with cases already in the system can remain under the old rules until the end of the year, or opt to start over in the new process.) Lepofsky is also concerned that hiring for some positions has been left to the last minute.

Attorney-General Chris Bentley admits that "any transformation will provide its challenges" but he adds: "We've got the resources in place to make sure that we achieve our goal."

Earlier this month, Bentley announced $14.1 million in one-time funding to ease the transition on top of the $17.6 million that had already been earmarked for the human rights system in the 2008-09 fiscal year. Raj Anand, a former head of the commission, was recently appointed chair of the legal support centre, and the government says a "transition director" has been developing the centre's structure and processes. Other positions at the centre, ranging from managers and lawyers to legal secretaries, were advertised last week.

Will that be enough to iron out all the wrinkles in time for June 30? With 4, 000 discrimination cases already in the system and an average of 2,500 new ones filed every year, those charged with running Ontario's new human rights regime will have their work cut out for them.

Given the heat the government has already taken from those who worry that the changes amount to "privatizing" human rights, a lot is riding on a smooth transition.

*****

Ontario Ministry of The Attorney General

Attention News Editors:

Ontario Improving Human Rights System
McGuinty Government Promoting Equality, Diversity And Tolerance

TORONTO, April 9 /CNW/ - Ontario is providing $14.1 million in new one-time funding to help build a faster, more effective human rights system, which will be launched on June 30, 2008.

This new funding is in addition to the $17.6 million already allocated to the human rights system for 2008-09. The new funding is building a faster, more effective system through:

The province's new human rights system, the first of its kind in Canada, will consist of the Ontario Human Rights Commission (http://www.ohrc.on.ca/en), the Human Rights Tribunal of Ontario (http://www.hrto.ca/english/) and a new Human Rights Legal Support Centre.

QUOTES

"Ontario has been a national leader on human rights since its creation of the first human rights code in Canada in 1962," said Attorney General Chris Bentley. "By creating a new, stronger human rights system, we are continuing our national leadership on this issue. The new system will address the underlying causes of discrimination and ensure the speedy resolution of human rights cases."

"This funding is an important part of ensuring the long term success of Ontario's new human rights system," said Michael Gottheil, Chair of the Human Rights Tribunal of Ontario. "It will help us construct new, state-of-the-art, accessible facilities, including human rights hearing and mediation rooms. In addition, by developing a new case management system, we'll be able to process cases in a timely way, and monitor and report on the performance of the new system."

"We're building towards an enhanced new mandate for the Commission, with a focus on proactive systemic work that seeks to address the underlying causes of discrimination," said Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission. "These new resources will allow us to begin that exciting change on June 30th."

QUICK FACTS

LEARN MORE

Read more details about this new funding for Ontario's new human rights system
(http://www.attorneygeneral.jus.gov.on.ca/english/news/2008/20080409-hr-bg.asp).

Read more about Human rights reform in Ontario
(http://www.attorneygeneral.jus.gov.on.ca/english/about/ohrc.asp).

Learn more about the Ontario Human Rights Code
(http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h19_e.htm)


ontario.ca/attorneygeneral-news
Disponible en franÁais

BACKGROUNDER


NEW FUNDING FOR ONTARIO HUMAN RIGHTS SYSTEM

ONTARIO'S HUMAN RIGHTS SYSTEM

A new and strengthened human rights system consisting of the Ontario Human Rights Commission (http://www.ohrc.on.ca/en), the Human Rights Tribunal of Ontario (http://www.hrto.ca/english/) and a new Human Rights Legal Support Centre is set to launch on June 30, 2008.

The Ontario Human Rights Commission will continue to promote, protect and advance human rights through activities including inquiries, research and analysis, education and training, policy development and by working to build an active human rights culture.

All discrimination claims will be filed directly with the Human Rights Tribunal of Ontario and all cases that are timely and within the Tribunal's jurisdiction will receive early access to an adjudicator to be resolved fairly, effectively and quickly.

A new Human Rights Legal Support Centre will offer independent human rights information and support services to individuals throughout Ontario, ranging from advice and support to legal representation.

FUNDING

As part of the 2008 Budget, the McGuinty government has committed to additional, one-time funding of $14.1 million in 2008-09 for Ontario's human rights system. These additional funds include:

This is in addition to the $17.6 million already allocated to the system for 2008-09.


ontario.ca/attorneygeneral-news
Disponible en franÁais

For further information:
Sheamus Murphy,
Ministry of the Attorney General,
Minister's Office,
(416) 326-1785

Brendan Crawley,
Ministry of the Attorney General,
Communications Branch,
(416) 326-2210

*****

Toronto Star April 9, 2008

Province injects cash to jump-start rights system reform; $14.1 million in funding to be announced today

Robert Benzie

Attorney General Chris Bentley will today announce $14.1 million in one-time funding to "fast-track" changes to Ontario's human rights system.

The cash infusion is designed to expedite reforms 16 months after the Liberal government enacted controversial legislation to streamline the processing of rights complaints.

"It helps to fast-track, to clear up, the cases that are outstanding so we can transition into the new system," Bentley said in an interview yesterday. "We want to make it more friendly for the people who might use it."

There is a backlog of about 4,000 cases and Bentley noted it can now take four or five years to resolve a complaint.

"It's very long. For many people, that's not what justice looks like. Our goal for most cases is (resolution within) a year or less," he said.

That's why Bentley and his predecessor, former attorney general Michael Bryant, pushed a three-pronged strategy that allows complainants to take their concerns directly to tribunals for adjudication rather than requiring them to go first to the commission.

Starting on June 30, the government will phase in an overhauled system consisting of the Ontario Human Rights Commission, the Human Rights Tribunal of Ontario and a new Human Rights Legal Support Centre. It is expected to be fully operational by Dec. 31.

Opponents of the changes - including the New Democrats, who voted against the legislation - argue that they effectively privatize the system because complainants would have to hire lawyers and investigators. The Progressive Conservatives also voiced concerns that the bill was poorly thought out.

Critics noted that under the old law, victims of discrimination could have the commission investigate their complaints and prosecute offenders regardless of whether they could afford private counsel.

Bentley insisted the government "listened very carefully" to such charges before modernizing an institution that dates back to 1962.

"We brought in the legal support centre to address the concerns about access" to lawyers, the attorney general said.

"It's important that we resolve complaints quickly," he said, adding the streamlining should allow the Ontario Human Rights Commission "more time and capacity... to identify systemic issues" in society rather than getting bogged down tackling individual complaints.

The $14.1 million is in addition to $17.6 million the province had already earmarked for the human rights system in 2008-09, and should jump-start the changes, Bentley said.

The transition money includes $7.6 million to build and start up the new system, $3.6 million for upgraded and accessible office space for the human rights tribunal and the fledgling human rights legal support centre, and $2.9 million to resolve the backlog.