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April 12, 2012
Here are two recent developments in our effort to ensure that persons with disabilities have full and meaningful access to Ontario’s system for enforcing the right to be free from discrimination guaranteed by the Ontario Human Rights Code.
As brief background to this update, in 2006, the McGuinty Government’s Bill 107 privatized the enforcement of Ontario’s Human Rights Code. Before Bill 107, the Ontario Human Rights Commission was responsible for investigating and publicly prosecuting individual human rights cases in Ontario. Bill 107 took this role away from the Human Rights Commission. Bill 107 now requires discrimination victims to investigate and prosecute their own human rights cases.
Last summer, the McGuinty Government appointed Toronto lawyer Andrew Pinto to conduct an independent review of Bill 107 and its implementation. The Human Rights Code required this Independent Review after Bill 107 had been in operation for three years.
Here’s what’s new:
1. On April 12, 2012, the AODA Alliance submitted a supplemental brief to the Pinto Human Rights Code Review. This brief supplements the main brief which we submitted to the Pinto Review on March 1, 2012. It summarizes and builds on a number of key points that we made to the Pinto Review during our March 2, 2012 Stakeholder Meeting with Mr. Pinto. Below we set out a summary of its contents. Our supplemental brief does not make any new recommendations. It reinforces our earlier submissions to the Pinto Review.
2. On March 13, 2012, the Human Rights Legal Support Centre (created and funded by the Ontario Government) wrote the AODA Alliance. Its letter criticizes certain statements we made in our March 1, 2012 brief to the Pinto Review, and our related web postings. On April 11, 2012 we wrote back to the Human Rights Legal Support Centre to answer each of its criticisms. Below we set out a short summary of that exchange. We also include those two letters at the end of our supplemental brief to the Pinto Review.
If you would just like to read this exchange of letters, without also reading our entire supplemental brief, you can download the Human Rights Legal Support Centre’s March 13, 2012 letter to the AODA Alliance, and the AODA Alliance’s April 11, 2012 response to it, in one MS Word file, by visiting: http://www.www.aodaalliance.org/docs/Exchange-of-letters.doc
We always welcome your feedback. You can also request that we directly email you our briefs to the Pinto Review or just the recent exchange of letters with the Human Rights Legal Support Centre, in MS Word format. Email your comments or your request for any of these documents to us at firstname.lastname@example.org
SUMMARY OF OUR APRIL 12, 2012 SUPPLEMENTAL BRIEF TO THE PINTO REVIEW
In our supplemental brief to the Pinto Review, we
1. show how our solutions to the current problems with Ontario’s human rights system should appeal both to Bill 107’s supporters and its opponents. In 2006, human rights advocates were sharply divided on whether Bill 107’s privatizing human rights enforcement was a good idea or a bad one. We show how our recommendations to the Pinto Review bridge this divide;
2. further explore the government’s broken promise of free lawyers for all human rights applicants. We answer issues raised with us by the Pinto Review, including where Mr. Pinto raised questions with us on whether the Government’s broken promise to provide free lawyers to all human rights applicants throughout the Human Rights Tribunal process is within the mandate of his Review;
3. build on an example of an accomplishment under Bill 107 that serves as a foundation for future reform. We show that the accomplishments during the transition period when Bill 107 was being phased in in 2008 demonstrates that it is workable to give human rights applicants the choice of either taking their own human rights case directly to the Human Rights Tribunal, or choosing to take their case to the Ontario Human Rights Commission for it to investigate and publicly prosecute it before the Human Rights Tribunal, if there is enough supporting evidence;
4. identify concerns regarding the Human Rights Legal Support Centre’s using a case’s “merit” as a criterion for deciding whether to represent a human rights applicant;
5. offer further concerns on the Human Rights Legal Support Centre’s appointing itself to judge which applicants can represent themselves at the Human Rights Tribunal. We don’t believe this is an appropriate role for the Centre;
6. describe why the option for a human rights applicant to go to the Human Rights Tribunal unrepresented is unrealistic for many human rights applicants, with an emphasis on persons with disabilities. This is an important question since so many human rights applicants do not receive full legal representation by the Human Rights Legal Support Centre, despite that organization’s best efforts with its limited budget;
7. show the ongoing need for and importance of individual case investigations in human rights cases. Under the new system for enforcing human rights that Bill 107 creates, the Human Rights Commission was taken out of the business of publicly investigating evidence in human rights complaints or applications that individuals file;
8. consider whether the old human rights enforcement system was a failure because 94% of cases never reached the Tribunal. This was a recurring claim by Bill 107’s proponents back in the 2006 public debates over Bill 107;
9. explain further why it would be wrong to give the Human Rights Tribunal a new power to order a losing party at a Human Rights Tribunal hearing to pay the winning party’s legal costs. This idea has apparently been suggested by some, to meet a need for a gate-keeper in the human rights system i.e. to screen out frivolous or meritless cases. The Pinto Review proposed to explore whether the Human Rights Tribunal should have the power to order a losing party in a human rights case to pay the winning party’s legal costs;
10. elaborate on the need for greater public accountability of Ontario’s human rights enforcement system;
11. explain why the Pinto Review should view with caution any submissions from others where they rely on the Human Rights Legal Support Centre’s claims about Bill 107’s successes;
12. summarize the AODA Alliance’s recent exchange with the Human Rights Legal Support Centre regarding our main brief(addressed further below);
13. provide further feedback on the Pinto Review’s process for conducting the Human Rights Code Review.
OVERVIEW OF THE RECENT EXCHANGE OF LETTERS BETWEEN THE HUMAN RIGHTS LEGAL SUPPORT CENTRE AND THE AODA ALLIANCE
The Human Rights Legal Support Centre’s March 13, 2012 letter to us in substance raised three objections to our March 1, 2012 brief and related website postings:
1. The Centre’s letter objects to a quotation that the Toronto Star’s March 2, 2012 on-line edition attributed to AODA Alliance chair David Lepofsky. Our April 11, 2012 response explains that the Toronto Star was incorrect in attributing that specific quotation to Mr. Lepofsky.
Our letter states that we do not assert that fewer persons with disabilities are accessing the new human rights system. We have no data of our own either proving or disproving such. Our letter also states that contrary to the claim in the Human Rights Legal Support Centre’s March 13, 2012 letter to us, we do not discourage and have not discouraged people from accessing the human rights system in general, or the Human Rights Legal Support Centre in particular.
2. The Centre’s letter to us objects to our March 1, 2012’s brief where it expresses a concern that according to the Centre’s 2009-2010 Annual Report, the proportion of disability cases at the Centre appeared substantially lower than the proportion of disability cases at the pre-Bill 107 Human Rights Commission . The Centre said we misinterpreted its Annual Report.
Our letter explains that we acted properly and cautiously in raising concerns over this issue. We explain that our interpretation of the Centre’s Annual Report is reasonable, and that if we were incorrect, there are still bases for warranting an exploration of this issue. Of interest, even if we did not cite the correct figure for the proportion of disability cases at the Centre in that year, the Centre has not said what the correct proportion of disability cases at the Centre was in that year.
3. The Centre’s letter objects to our website’s statement that thousands fewer people are trying to call the Human Rights Legal Support Centre each year under Ontario’s new human rights enforcement system, than called the Human Rights Commission under the old pre-Bill 107 regime. Our responding letter states that our statement which the Centre attacks is in fact accurate.
Our letter also debates the Centre’s claim that we have misused data on how many people in total are approaching the new system, as compared to the old system. That discussion is also responsive to an issue that the Pinto Review raised with us on the same point at our Stakeholder Meeting.
Our April 11, 2012 letter to the Centre ends with some important conclusions arising from this exchange with the Human Rights Legal Support Centre. We also bring these conclusions to the Pinto Review’s attention in our supplemental brief to that Review.
a) Our letter concludes that this exchange with the Human Rights Legal Support Centre further shows that there is a need for substantially more public accountability on the part of the human rights system, including the Human Rights Legal Support Centre. The debate between us and the Centre over some important statistics is just one example that illustrates how hard it is under the new human rights system in Ontario for the public to get a full handle on how this system is working.
b) Statistics in the Centre’s letter further illustrate in the broader context of the disability community’s needs, the shortfall in legal services the Centre can provide with its current budget and best efforts.
c) Our letter expresses concern with the Centre’s March 13, 2012 letter’s harsh, accusatory tone. We voiced concerns about the Centre using its staff time to find out who attended our Stakeholder Meeting with the Pinto Review, with the Centre’s copying its March 13, 2012 letter to all those whom it thought attended our Stakeholder Meeting (some of whom were not in fact at that meeting and may have known nothing about it), and with the Centre’s originally posting those private individuals’ names and email addresses on its website. The Centre has posted its March 13 2012 letter on its public website. In the face of our earlier raising our concerns about this via email to the Centre, the Centre said it took the partial step of removing those individuals’ email addresses from its website.
Our April 11, 2012 letter explains why we question this conduct by a human rights agency, whose mandate comes from the Human Rights Code, who receives its funding from the Ontario Government, and whose website bears the logo of the Government of Ontario. Our main brief explains how the Centre has in some ways gone beyond the role of explaining to the public its work under the new human rights system. It has in effect stepped into the shoes of those private individuals who successfully proposed and advocated for Bill 107 back in 2006. This latest development further illustrates that point.