SUMMARY OF WHAT’S WRONG WITH
Ontario’s human rights enforcement system must be significantly improved. It is
too slow and backlogged. This is because it has been seriously under-funded for
years and needs administrative reforms. The Human Rights Commission’s
gatekeeping function can benefit from procedural reforms so meritorious cases
are taken to the Human Rights Tribunal. The Tribunal also needs significant
Bill 107 doesn’t solve these problems. It makes things worse, not better,
It takes away discrimination victims’ right to a public investigation of their human rights complaint by the Human Rights Commission, armed with investigation powers. It strips discrimination victims’ right to have the Human Rights Commission publicly prosecute their case if the evidence warrants it, and if the parties don’t voluntarily settle the case. Victims will have to do their own
investigation/prosecution, or find someone to do it.
Contrary to Government commitments, it doesn’t ensure that every human rights complainant will have free publicly-funded legal advice and representation. It just lets the Government fund legal assistance if it wants. Government needn’t spend a dime. Funding cuts can be a provincial election or cabinet shuffle away. It doesn’t entrench the Government’s promised Human Rights Legal Support
Centre. It doesn’t require that legal services be delivered by lawyers.
It lets the Tribunal charge user fees. It could let the tribunal order human rights complainants to pay their opponent’s legal costs at Tribunal hearings if they lose. Now the Tribunal can only order the Commission, not the complainant, to pay legal costs of the party accused of discriminating. The bill will make
discrimination victims afraid to bring their case forward.
It lets the Tribunal make rules that strip the right to be represented by a lawyer at a hearing, to call relevant evidence, and to cross-examine opposing witnesses.
It dramatically reduces the right to appeal from the Tribunal to court. Now, anyone losing at the Tribunal has the broadest right to appeal to court. Bill 107 only lets the loser go to court if the Tribunal decision is patently unreasonable, a far tougher test.
It unfairly forces thousands of discrimination cases now in the human rights system to start over again in the new system, without the Human Rights Commission’s help. Many spent years trusting they could use the current system.
It doesn’t keep the Government’s commitment that all discrimination victims will have a Tribunal hearing. It lets the Tribunal reject a case without a hearing, or defer a hearing.
It doesn’t reduce the backlog. It shuffles the line-up from the Human Rights Commission to the Tribunal. It doesn’t set enforceable deadlines to ensure that cases are promptly heard and decided.
Breaching Government commitments, Bill 107 weakens, and doesn’t strengthen the Human Rights Commission’s ability to bring its own cases to challenge systemic discrimination. Now the Commission can launch a complaint in any case (not just systemic cases). It has investigation powers to get evidence. It can
seek sweeping remedies to compensate discrimination victims for past wrongs
and prevent future discrimination.
Bill 107 only lets the Commission launch its own case in systemic cases. It
doesn’t define “systemic.” It’s based on the false idea that cases are
either “individual” or “systemic”. It strips the Commission’s investigation
powers. It stops the Commission from seeking remedies to compensate victims
for past wrongs.
It largely privatises human rights enforcement. It removes the Commission from most discrimination cases. This makes the Commission less effective when it does public policy, advocacy and public education.
It dramatically shrinks the human rights system’s capacity to protect the public interest. Now the Commission can seek remedies both for individual discrimination victims, and to address the broader public interest. It can do so when settlements of cases are negotiated, and at Tribunal hearings. Under Bill 107, the Commission won’t be involved in negotiating most case settlements. It won’t have carriage of or even be at many if not most Tribunal hearings.
By Bill 107, the McGuinty Government seriously breaks faith with 1.5 million Ontarians with disabilities. In the 2003 election, Premier McGuinty promised a new disability act with effective enforcement. After the election, the McGuinty
Government rejected disability community requests to create a new
independent agency to enforce the new disability act. The Government said it
isn’t needed since persons with disabilities can use the Human Rights
Commission’s complaints process to enforce their rights. The disability
community applauded the new 2005 disability act, though it created no new
independent enforcement agency. Now Bill 107 extracts most of the Human
Rights Commission’s enforcement teeth.
Bill 107 doesn’t correct this breach of faith by setting up in the Human
Rights Commission a weak Disability Rights Secretariat. That Secretariat has
no public investigation and prosecution powers. The Commission previously
had a stronger version of that Secretariat.
SUMMARY OF HOW TO IMPROVE BILL
It would be better if the Government started from scratch, held a proper
time-limited public consultation, and then introduced an appropriate human
rights reform bill. However, if the Government presses Bill 107 forward, the
bill should be amended to address these themes:
to ensure it doesn’t take away any rights the Human Rights Code now gives.
to ensure it does what the Government says it does, and
to Ensure it doesn’t breach the Ontario Government’s understanding with Ontario’s disability community over enforcement of the Accessibility for Ontarians with Disabilities Act, regarding continued availability of the Human rights Commission’s investigation’/enforcement powers.
Therefore amendments are needed to:
let complainants choose to take their case right to the Human Rights Tribunal, or to opt for the Human Rights Commission to investigate their case, and to prosecute if evidence warrants.
guarantee all complainants a publicly-funded lawyer at all Tribunal proceedings.
ensure that all complainants opting for direct access to a hearing get a hearing within 90 days of filing their claim, that the Tribunal can’t dismiss or defer a case without a hearing, and impose enforceable deadlines for major steps in the proceeding.
Ensure hearings are fair, e.g. stop the Tribunal, the judge, from also being the investigator.
strengthen, not weaken, Commission enforcement powers, including expanding its role to monitor and enforce Tribunal orders, and to plan for removal and prevention of barriers in the human rights process. Expand the remedies the Tribunal can order.
Involved the Commission in all cases, at settlement discussions and at Tribunal hearings, to advocate, e.g. for the public interest and for public interest remedies.
give the Disability rights and Anti-Racism Secretariats meaningful enforcement powers.
make the Commission meaningfully independent of Government.
let complainants retain their right to appeal to court if they lose at the Tribunal.
ensure the public has input into any Tribunal rules.
make mediation available, without forcing it on those not wanting it.
protect discrimination victims from financial barriers like user fees.
ensure that cases now in the human rights system are completed under the current Code, and needn’t start all over under Bill 107.
If the Commission’s mandate over disability rights isn’t preserved, establish a strong, effective independent enforcement agency under the Accessibility for Ontarians with Disabilities Act, including power to receive, investigate and prosecute disability discrimination cases.
ensure periodic public reviews of the Code’s effectiveness.