ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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FOR AN Independent Review OF ONTARIO'S HUMAN RIGHTS ENFORCEMENT SYSTEM, THE MCGUINTY GOVERNMENT APPOINTS A BILL 107 SUPPORTER, WHO PUBLICLY OPPOSED THE AODA ALLIANCE'S POSITION ON HUMAN RIGHTS ENFORCEMENT

August 29, 2011

SUMMARY

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. Bill 107 is legislation that the McGuinty Government passed in 2006 to privatize the enforcement of human rights. We have serious concerns about this choice to conduct this important review.

Section 57 of Bill 107 requires this Independent Review of Ontario's new human rights enforcement system, now that Bill 107 has been in force for three years. (The person conducting this Independent Review should be armslength, independent and impartial.)

We most assuredly do not question Mr. Pinto's knowledge of and commitment to human rights. However, Mr. Pinto is, with respect, not armslength, independent and impartial about Bill 107.

We took active part in the hotly-contested public debates over Bill 107 in 2006. Mr. Pinto did, too. The AODA Alliance, like many others, was very critical of that legislation. In sharp contrast, Mr. Pinto was a strong proponent of that controversial legislation – one of a small group of lawyers who convinced the McGuinty Government to pass it, and spoke very publicly in support of it.

In 2006 Mr. Pinto publicly opposed the AODA Alliance's position on those human rights reforms. For example, on March 16, 2006, the AODA Alliance held a news conference at Queen's Park to make public our strong opposition to the Government's plan to privatize human rights enforcement in Ontario. Mr. Pinto came to that news conference uninvited, with a small group of his fellow Bill 107 proponents, and spoke to media in attendance after our presentation, to oppose our position and support the Government's plans.

On April 12, 2006 at a law conference in Toronto, he and another Bill 107 supporter took part in a public debate in support of the Government's plan. One of the two people whom he opposed on the other side of that organized debate was David Lepofsky, now chair of the AODA Alliance, and then, the AODA Alliance's spokesperson on human rights reform.

At this Independent Review, how is Mr. Pinto to fairly consider our concerns – concerns which he tenaciously spoke out against in 2006? It is important for this Independent Review not only to be impartial and fair, but for the public to see it as being impartial and fair.

We share concerns described in the August 18, 2011 letter from Ms. Avvy Go, the director of the Metro Chinese and Southeast Asian Legal Clinic, to the McGuinty Government. We especially note Ms. Go's statement that: "It is an especially cruel irony that your Government has taken this step when the only significant change to Bill 107 that your Government agreed to at the request of its critics back in 2006 was a strengthened requirement for an Independent Review after three years." We set Ms. Go's August 18, 2011 letter out below, along with the Independent Review's terms of reference, and the Government's announcement of Mr. Pinto's appointment. .

We endorse Ms. Go's recommendation on how to rectify this unacceptable situation. It is important to lift the cloud that remains over this Independent Review.  

We also call for this Independent Review to hold open, accessible public forums or hearings around Ontario, not just in Toronto. They should be open to anyone, and not "invitation-only". Presenters should be given enough time to be able to make meaningful, informative presentations.

In 2006, amidst much controversy, Bill 107 privatized the enforcement of human rights in Ontario. It took away from discrimination victims their decades-old right to have non-frivolous discrimination complaints publicly investigated by the Ontario Human Rights Commission, and to have the Human Rights Commission publicly prosecute them before the Human Rights Tribunal, where the evidence warrants it. Under bill 107, discrimination victims now have to themselves privately investigate and prosecute their own cases before the Human Rights Tribunal.

Bill 107 set up a new Human Rights Legal Support Centre to advise and represent discrimination victims. However a very troubling percentage of people who call that Centre either cannot get through on the phone, or have not been given full representation at the Human Rights Tribunal.

This is not the first time we have faced barriers to raising our concerns about Bill 107. We were frozen out of public hearings on Bill 107 back in November 2006-- public hearings that had been promised, scheduled and advertised. At the last minute, the McGuinty Government shut down those hearings in 2006 with a closure motion in the Legislature, as criticism of Bill 107 mounted. You can read all about the events of 2006 at http://www.aodaalliance.org/reform/default.asp
 
Last month, we publicly supported the call by Ms. Avvy Go that the person to be appointed to conduct this Independent Review be independent of the debate back in 2006 over Bill 107. Visit http://www.aodaalliance.org/strong-effective-aoda/07132011.asp

Send us your feedback. Write us at: aodafeedback@gmail.com

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August 18, 2011

Hon. Christopher Bentley                                           Via Email Only
Attorney General for Ontario
720 Bay Street, 11th Floor
Toronto, Ontario
M7A 2S9

Dear Minister,

Re: Mandatory Independent Review of Ontario's Human Rights Enforcement System

On behalf of the Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC), I am writing again about the mandatory Independent Review of human rights enforcement in Ontario. We wrote you on May 24, 2011, to remind you of your statutory obligation under Bill 107 to appoint an Independent Review of the system for enforcing human rights in Ontario by the end of June 2011. We urged you to select someone who is independent of, and not tied to either side of the public debate over Bill 107, to conduct this review.

As stated in our May 24, 2011 letter, when your predecessor, the Hon. Michael Bryant, brought forward Bill 107 in 2006 to reform the system for human rights enforcement in Ontario, it sparked a major debate among equality-seeking advocates. Some advocates, most notably a group of private bar lawyers, supported the Bill. Many others, mostly community organizations working with racialized communities and people with disabilities strongly opposed it as they considered the proposal amounting to the privatization of the enforcement of human rights in this province.

We appreciate that on August 12, 2011, you did announce the appointment of a reviewer, albeit a month and a half late. However, we wish to voice our serious concerns about your decision to appoint Mr. Andrew Pinto to conduct this Independent Review of the new system for enforcing human rights. We want to make it perfectly clear that we do not question Mr. Pinto’s expertise in the human rights field, nor his reputation as a lawyer with a long history of community involvement. Yet with the greatest respect to Mr. Pinto, your choice of reviewer lacks the arm's length independence and impartiality necessary to ensure that this Independent Review is conducted in a fair manner so as to earn the respect and confidence of the public. The review must actually be fair, and be seen to be fair by the public, especially in view of the longstanding and ongoing controversies surrounding the new human rights system your Government instituted in 2006.

In 2006, in the face of mounting criticism of Bill 107, your Government committed that anyone who wanted to, could appear to make presentations at public hearings on Bill 107 at the Legislature, before it was passed. Despite that commitment, on November 21, 2006, your Government used its majority to invoke closure. It thus shut down continued public hearings that your Government had promised, advertised at public expense, and scheduled. This prevented many from being able to appear before the Legislature to voice their concerns and propose amendments to Bill 107. It also prevented extensive debate on a significant number of amendments to Bill 107 that the two opposition parties proposed at the request of Bill 107's critics. Ultimately, your Government used its majority to defeat the vast majority of those amendments.

One of the only changes to Bill 107, proposed by the bill's critics, that your government allowed to pass, concerned an Independent Review of the effectiveness of the bill's changes to enforcement of human rights in Ontario. Section 57 of Bill 107 required your Government to appoint a person or persons by June 30, 2011, to conduct a full and independent review of the effectiveness of Ontario's new system for enforcing human rights, including public consultations. This section was enacted so that there would be a fair and impartial opportunity to see whether Bill 107 delivered the benefits the Government claimed, or created the problems its critics forecasted.

It is therefore essential that the report of this Independent Review have the confidence of the public, including, among others, both sides of the policy debate over Bill 107. This is necessary as a matter of good public policy. It is also necessary in light of other controversies that have hung over the human rights system, apart from the debate over Bill 107.

That is why we urged your Government to select a person to conduct this Independent Review who was not tied to either side of the Bill 107 debate. For this Independent Review to live up to the spirit of s. 57 of Bill 107, and for it to be a valuable process we also asked that you consult before making your final choice over who will conduct the Independent Review.

It is profoundly regrettable that your Government rejected our advice, and didn't take up our offer to be consulted on this issue. Mr. Pinto, whom you selected to conduct this Independent Review was a passionate, vigorous, and articulate proponent of the Bill – indeed one of the leading voices on that side of the debate.

To start, back in 2006, when your predecessor Mr. Michael Bryant introduced Bill 107, he largely left it to a small group of private bar lawyers advocating for the Bill to speak out in support of it in public, outside the Legislature itself. Mr. Pinto was one of the people publicly filling that role.

Since then, Mr. Pinto has continued to demonstrate his public support for the Bill. First, on March 16, 2006, the Accessibility for Ontarians with Disabilities Act Alliance held a Queen's Park news conference. The AODA Alliance was there to publicly voice its vehement opposition to your Government's plans to privatize human rights enforcement. Despite this news conference being launched on very short notice, a small group of Bill 107's proponents showed up, uninvited, at that news conference. After the AODA Alliance's formal presentation, Mr. Pinto and his associates approached reporters present to voice support the Government's plans, in direct opposition to the AODA Alliance's position.

Second, on April 12, 2006, Lancaster House, a well-known Canadian law publisher, held a conference panel debate in Toronto on the Government’s proposed reform for the human rights system. The undersigned was one of the two presenters on that panel speaking against the Government's plans. In contrast, Mr. Pinto was one of the two speakers on that panel, speaking vigorously in favour of the Government’s plans.

Third, on October 13, 2006, Mr. Pinto co-authored a brief on Bill 107 for the Legislature's Standing Committee on that bill, on behalf of the Ontario Bar Association. That brief strongly supported the Government's plans at the core of Bill 107.

Fourth, the January 22, 2007 edition of the Law Times newspaper quotes Mr. Pinto as congratulating the Government on its passage of Bill 107, including its acceptance of proposals for amendments to that bill that were proposed in the brief that Mr. Pinto co-authored.

Your Government has already populated the new human rights system with a number of people who were Bill 107’s architects and who stood along side Mr. Pinto in support of the Bill. Mr. Pinto is essentially being asked to judge the performance of his allies who work in a system that they collectively created. The basic tenet of our justice system calls for a fundamental separation between, and independence of judiciary, prosecution and investigation. The absolute adherence to that principle becomes all the more important when what is being “judged” is the human rights system itself.

It is an especially cruel irony that your Government has taken this step when the only significant change to Bill 107 that your Government agreed to at the request of its critics back in 2006 was a strengthened requirement for an Independent Review after three years.

By your now selecting an individual to conduct this Independent Review who so publicly advocated for Bill 107, the Government sends a signal to the many who opposed Bill 107 that their opinions are far less valued. Bill 107's critics were once shut out of the legislative debate by the Government’s closure motion in 2006; they are now again being marginalized by the Government’s decision to have the review conducted by someone who endorses the Government’s reform.

In sharp contrast to this unfortunate development, in 2009, your Government commendably selected an independent person to conduct the mandatory statutory review of the effectiveness of the Accessibility for Ontarians with Disabilities Act. As a result, the report of the Charles Beer Independent Review of that law earned public acceptance and confidence. It is important for the Independent Review of Bill 107 to win the same public acceptance and confidence.

While we do not dispute the sincerity of Mr. Pinto's dedicated, passionate, articulate and unwavering support for Bill 107, it would be preferable for Mr. Pinto to step aside, in favour of an impartial reviewer. You could choose any number of qualified, impressive, neutral candidates, from among judges or law professors with expertise in human rights and administrative law, who took absolutely no part – both public and private - in the Bill 107 debate.

Alternatively, if you insist on having Mr. Pinto take part, then we recommend that you appoint two additional individuals to collectively conduct this Independent Review with him. One of those should be a comparable individual drawn from among critics of the Bill. The other should be a judge or law professor, as suggested above, who will be respected as a neutral person on this issue. In such a team, Mr. Pinto can continue to vigorously press his position, informing the Independent Review's deliberations, but not pre-empting it.

We respectfully submit that either option is needed to bring legitimacy to an otherwise defective process. With the controversies that regrettably still plague the human rights system in Ontario, it is vital for your Government to act now, to lift the cloud over this Independent Review, and to ensure that regardless of the outcome of the October 6, 2011 election, this Independent Review will be a productive exercise which will strengthen human rights protection for all Ontarians.

Sincerely,

 

Avvy Yao-Yao Go
Barrister & Solicitor
Clinic Director
Metro Toronto Chinese & Southeast Asian Legal Clinic

cc.        The Hon. Dalton McGuinty, Premier of Ontario
            Tim Hudak, leader of the Opposition Party of Ontario
            Andrea Horwath, leader of the New Democratic Party of Ontario
            Ted Chudleigh, MPP
            Christine Elliot, MPP
            Barbara Hall, Chief Commissioner, Ontario Human Rights Commission
            David Wright, Acting Chair, Human Rights Tribunal of Ontario
            Kathy Laird, Executive Director, Human Rights Legal Support Centre
            Debbie Douglas, Executive Director, Ontario Council of Agencies Serving Immigrants
            Margaret Parsons, Executive Director, African Canadian Legal Clinic
            Shalini Konanur, Executive Director, South Asian Legal Clinic of Ontario
            Karen Sun, Executive Director, Chinese Canadian National Council Toronto Chapter
            David Lepofsky, Chair, AODA Alliance
            Michael Kerr, Coordinator, Colour of Poverty Campaign

*****

FROM THE MCGUINTY GOVERNMENT

HUMAN RIGHTS REVIEW
TERMS OF REFERENCE

The scope of this review is set out in section 57 of the Human Rights Code which provides:

Review

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.

The Reviewer will consider the following:

•           Whether the redesigned Human Rights Tribunal of Ontario 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 is effective in providing information, support, advice, assistance and legal representation for those seeking a remedy before the HRTO.

•           Whether the Ontario Human Rights Commission, 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.

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MCGUINTY GOVERNMENT'S AUGUST 12, 2011 ANNOUNCEMENT

The Ministry of the Attorney General has appointed Andrew Pinto to conduct a review of amendments to the Human Rights Code that came into effect on June 30, 2008

http://www.attorneygeneral.jus.gov.on.ca/english/news/2008/20080630-ohrc-nr.asp
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h19_e.htm

When the Legislature passed Ontario's human rights reform bill, it included a commitment to conduct a review of the new system's progress after an initial three-year period. The review is expected to be completed by spring 2012.

Attached please find a letter from the Attorney General and the Terms of Reference.

For more information on the review, please visit:
http://news.ontario.ca/mag/en/2011/08/strengthening-human-rights-in-ontario.html

August 12, 2011

All Ontarians have a right to live free from discrimination, inequality and intolerance, and the protection of human rights is a fundamental principle in this province.

When the Legislature passed the Government's human rights reform bill, it included a commitment to review the new system's progress after three years. I have asked Andrew Pinto, a prominent human rights and employment lawyer, to conduct a review resulting from the amendments to the Human Rights Code that came into effect on June 30, 2008.

Mr. Pinto, of Pinto Wray James LLP, is a past chair of the Administrative Law section of the Ontario Bar Association, and past chair of the Equity Advisory Group of the Law Society of Upper Canada.

Mr. Pinto is also an Adjunct Professor at the Faculty of Law, University of Toronto, teaching the Administrative law course which deals with tribunals, agencies, boards and commissions.

The scope of the human rights review is set out in section 57 of the Human Rights Code. The review will begin later this summer, and is expected to be completed in the spring of 2012. The terms of reference for the review are available on the Ministry's website and are attached for your information.

Mr. Pinto will initially be developing a plan for the review and will be providing further details shortly. An important part of Mr. Pinto's review will be consultations. For updates on the status of the review please consult the following web link: www.ontariohumanrightsreview.org

[Original signed by]

Hon. Chris Bentley
Attorney General