Ontario Hansard Monday December 4, 2006
HUMAN RIGHTS CODE AMENDMENT ACT, 2006 /
LOI DE 2006 MODIFIANT LE CODE DES DROITS DE LA PERSONNE
Mr. Bryant moved third reading of the following bill:
Bill 107, An Act to amend the Human Rights Code / Projet de loi 107, Loi
modifiant le Code des droits de la personne.
The Acting Speaker (Mr. Ted Arnott): Mr. Bryant has moved third reading of Bill
107, and I’ll return to the Attorney General for his leadoff speech.
Hon. Michael Bryant (Attorney General): Thank you, Speaker. We have today an
opportunity to speak to Bill 107. This is third reading debate. I would
anticipate that there will be some discussion about the process that got us
here. There will be some discussion about the process that is the current
system, and I will be speaking to that as well. Of course, we have had a debate
around the process. We have had a debate on the time allocation motion, and all
parties were heard on that subject. That matter went to the House, on which
there was a vote, and now we are here to speak, I hope, to the substance of the
bill. I am concerned that we will end up having a debate about the process that
led to this moment, and maybe the process that is the current system.
As I went back and looked at the third reading debate for the legislation that
consolidated all of the human rights laws in Ontario and established in law the
Human Rights Commission — and at the time it was the commission alone; there
was no Human Rights Tribunal — you will see that the debate was all about the
substance. In fact, they were debating an amendment to the bill as to whether or
not age discrimination ought to be a part of our human rights system. The
government position was that the ability to enforce it was not yet there. The
government, led by Premier Robarts, and the official opposition’s position was
that we needed to enshrine that right and address issues of enforcement, I
guess, on another day. It was discussion about not only the Universal
Declaration of Human Rights but also the innovations and statutes that existed
in Canada and in Ontario at the time. It was a debate about the substantive
rights that were covered under the human rights system and a specific debate
about whether or not the breadth of human rights were, under the Human Rights
Code as it was existing at that time during that debate on March 1, 1962,
adequately protected in the province of Ontario. It was a debate where the
government was concerned about the breadth of the Human Rights Code of the day, but also the importance and the ability to enforce those rights.
The leader of the official opposition has spoken with great pride about the fact
that he shares a party name with one Premier Robarts, who created our human
rights complaint system that we have today, and did so in 1962. I would
encourage him to read the speeches of Mr. Robarts of that time and to see that
the discussion was not around the legislative process. The discussion was not
around, in fact, the specific mechanisms to enforce human rights, although he
was concerned about the idea of having rights without a remedy, something that
this government is very concerned about many, many years later.
There has been some discussion about the historical accuracy of saying that this
is the first time that we have changed the human rights complaint system since
1962. It is the first time in which we have before the Legislature a bill that
will change the human rights complaint system since 1962; it is not the first
time that the Human Rights Code has been amended. It is not, and that point has
been made by several people quite helpfully. Certainly, nobody in the government benches means to suggest for a moment that the Human Rights Code has not been amended from time to time, because it has. It has been amended by the Conservative government; it has been amended, as was said by the Premier, by the Peterson government, specifically by Attorney General Scott. But the complaint system has basically been the same one that has existed since 1962, at least in legislation.
Of course, there have been changes to the complaint system over the years. It is
because of those changes that we have had, for some time now — for, I would
say, 20 years, but certainly this Legislature has been debating this subject
since 1990-91 — the prospect of reforming the enforcement procedures that exist
right now. The rough history that was presented to me in the last seven years
that I’ve been in this House with respect to the human rights system since 1962
is something like this: that the Human Rights Commission was given the ability
to resolve human rights complaints, and did so. But the commission had two
focuses: Firstly, to promote human rights and prevent human rights
discrimination was one of its focuses and, secondly, to resolve complaints.
I’m advised that for many years the system worked extremely well, was a model
human rights complaint system for the rest of the country, and the rest of the
country followed and formed human rights systems that are very similar, if not
identical, to Ontario’s. Then what happened over the years was — and, I’m told,
at some point in the 1980s — a series of rulings, a series of changes, a change
in terms of the volume of cases that went into the system.
A number of other factors led to what I would call process gridlock that
backlogs the system in a chronic way. It certainly did not help that from time
to time in governments past there were budget cuts to the Human Rights
Commission. I’m very proud to serve in a government where we have increased the budget for our human rights system every year that we’ve been in office. I know that I have made the point in question period before and in debate that
governments past, Conservative governments and NDP governments too, actually, back to back — there was a time there in the 1990s where they received
back-to-back-to-back-to-back cuts from both NDP and Conservative governments,
budget cuts, to the system.
I think it’s an error to imagine that resolving these backlogs could simply be
found through fiscal remedies, although, as I’ve said, we have made budgetary
increases to the human rights system and will continue to do so. But rather, we
need to address what Minister Ziemba said on December 10, 1991, when she rose in the House on International Human Rights Day. She was the Minister of Citizenship and the minister responsible for human rights at the time. She said, “Clearing the backlog of cases is absolutely critical to providing justice to complainants who have waited far too long.” This is in 1991. This isn’t 2001; this isn’t a couple of years ago. This is 15 years ago in this House that the minister
responsible for the human rights system said, “But the backlog is symptomatic of
a more fundamental problem: outdated enforcement procedures that cannot respond to the increasing and complex cases of today.” And so the government of the day announced the creation of a task force to undertake, in her words, “an
independent review of the procedures for the enforcement of human rights in
Ontario, and to make recommendations for amendments to the code to ensure a fair and practical enforcement process.”
The government appointed task force chairperson Mary Cornish, who was described as “a lawyer, co-founder of Ontario’s Equal Pay Coalition and long-standing human rights activist.” Minister Ziemba of the New Democratic Party said, in 1991, “We are very fortunate to have someone of her expertise and stature to head this review.”
The task force was given six months to complete their review and provide the
government with a report of the findings, conclusions and recommendations in the summer of 1992.
The minister talked about the consultations that she had had with a range of
individuals and groups across the province and the reform and what she referred to as the “informal process,” which “generated a lot of ideas and suggestions, but the top priority,” the government said in 1991, “is the need for an overhaul of human rights enforcement procedures.”
That’s what this bill —
Mr. Peter Kormos (Niagara Centre): On a point of order, Mr. Speaker: Quorum
The Acting Speaker: Would the table assist me to ascertain if there is a quorum?
The Clerk-at-the-Table (Ms. Lisa Freedman): A quorum is not present, Speaker.
The Acting Speaker ordered the bells rung.
The Clerk-at-the-Table: A quorum is now present, Speaker.
The Acting Speaker: I’ll return to the Attorney General.
Hon. Mr. Bryant: I appreciate Mr. Kormos’s intervention there. I don’t know if
it’s out of envy or embarrassment that he hears a former NDP minister talking
about his government’s commitment to reforming enforcement procedures. It is, in fact, a part of our history and a part of our Legislature that we’ve been
debating this matter for so long. It is important, I think, to understand not
only how many people have been calling for changes to our human rights system
and for how long, but also the broad range of people who have been calling for
changes to our human rights system, and that includes the NDP government of the day.
So what happened to that task force that was created and brought in by the NDP
government? It came in and the task force recommended a direct access system. A direct access system allowed a person who had a human rights complaint to go
directly to a tribunal to get a remedy for what they believed to be a moment of
discrimination. As I say, the purpose of the 1962 human rights complaint system
that was established in law was to provide remedies for these legal rights that
existed in the common law and in various statutes, had not been consolidated as
they were back in 1962 and did not have a place to which a person who was a
victim of discrimination could turn to to get a remedy.
My concern is that we have known for so long that the complaint system and the
changes that were brought upon it, in fact, brought us back, to some degree, to
a place where, for many, many people who were turning to our human rights
complaint system, they found that they had these rights on paper and in law, but
had no place to obtain a remedy. If I could sum up why this bill is before this
Legislature today, it is for that.
You’re going to hear about different processes. You’re going to hear about
different ways to achieve — I hope we’re going to hear about that — the goal.
But I would have thought that the goal is the same, and that is to provide a
remedy for people’s human rights. Yes, we have this great Human Rights Code in
Ontario that led the nation, but for too many Ontarians it has been the case
that it has been a Human Rights Code with too many dead letters, too many rights on paper that were not translating into rights with remedies for Ontarians.
The reason that the Cornish task force recommended to the NDP government of the day a direct access system was because they felt that was the best means to that end. The goal, the end, was not the process itself. It wasn’t about direct
access being the vastly superior and only way in which to deliver the remedy. It
was seen as preferable to the enforcement procedures of the day, based on the
experience of that time and, to a certain degree, also based on the evolution of
Canadians’ experience with human rights.
Do you remember 1962? There was not even a Canadian Bill of Rights at the time.
There was certainly no Canadian Charter of Rights and Freedoms. So in 1962, a
complaint system was set up. Now, it was set up for a lot of very good reasons.
If somebody felt they were a victim of a human rights injustice in early 1962,
before the bill was before the Legislature, basically that person could retain
counsel at their own expense, not with publicly supported legal support, they
would have to bring their matter and sue the respondent via either existing
statutory right or under the common law, tort law, and they would go before the
superior court of the day. Without meaning to in any way be critical of the
superior court of the day, this was not a court which had the human rights
expertise that a human rights commission or tribunal would have. So the system
at the time was: You’re on your own.
Again, if I can sum up in brief what we are trying to do today, it’s to better
provide public support to people who are seeking to get a remedy for their human right. Instead of going to the Human Rights Commission — although they’ll be able to go to the Human Rights Commission under this new system, if this law
passes in a vote before this Legislature, for systemic matters. They will be
able to get assistance from the Human Rights Commission and see the Human Rights Commission as an intervener in matters that go before the tribunal — an
intervener, I should add, as a right under this legislation, thanks to
amendments that were brought to the bill at the behest of the Human Rights
Commission to entrench the powers they felt were important. We listened to them and ensured they were in this bill by way of the amendments that we brought before the standing committee on justice and social policy.
The goal is to provide a human rights legal support centre, which was not seen
as having appropriate clarity in the original form of Bill 107. That led to the
call for amendments to clarify the role of the human rights legal support
centre, which was provided in the amendments that were brought to the justice
committee. The human rights legal support centre will be there, a new pillar of
the human rights system, alongside the commission and the tribunal, that will
provide support to Ontarians as they come forth with complaints to the human
rights system; a place where people can get advice and representation; a place,
obviously publicly funded, where Ontarians will be able to get the public
support that they did not have before the human rights complaint system was
brought in prior to 1962. So you get that support, but you also get expertise.
The Human Rights Commission has long embodied the expertise in the human rights system that made the Human Rights Commission, at the time it was created, a leader in the nation, one which people in other provinces and other countries turned to.
I think, going back to the two purposes of the commission, that at some point
along the way, one of those purposes was not being served, not because the
commission did not want to serve it — believe me, it did — but the Human
Rights Commission at some point — and I don’t know if it happened in the 1980s,
I don’t know when it happened in the 1980s, but it certainly happened at some
point, and it was recognized by the NDP government in 1991 — became primarily a complaint resolution institution. If you look at the work of the commission, the
way in which it spends its money and the way in which it does its work and its
budget, the vast majority of the work that the Human Rights Commission has been doing in the last few years — I would argue, in the last 15 years — has been
overwhelmingly focused on the complaints resolution process. Yet every year,
they have still managed to do an incredible job to educate the public, to be
sure, to bring forth very independent reports, to hold governments and other
public and private institutions’ feet to the fire. In doing so, it has played
that role of promoting human rights and seeking to prevent human rights
discrimination. But its ability to do so is significantly limited by the fact
that most of its budget is devoted towards the complaint resolution process.
What this new system that we’re proposing in this bill will do, the bill that is
before the Legislature in the form of Bill 107 that we are debating today, is to
give the commission the ability to, yes, promote human rights and prevent human rights discrimination by allowing it to focus primarily on that, but also to do something that is very important. It is part of a response to — I’m sorry to
call it the new generation of human rights discrimination; it’s not all that new
at all — systemic discrimination, which in the case of some institutions
unfolds unwittingly, in some cases not so unwittingly, whereby statistically it
becomes very clear that there are barriers, often glass ceilings — not the kind
of discrimination that was the focus of the debate in 1962, where they were
debating whether or not to add age discrimination as a grounds of discrimination within the Ontario human rights system, but something that is far more subtle, pervasive and arguably extremely destructive.
The Human Rights Commission will have powers under this bill to bring forth
claims of systemic discrimination on behalf of Ontarians; not just the 2,000 or
3,000 Ontarians who bring complaints to the human rights system every year, who, I am arguing and this bill argues, the Cornish task force argues, the United
Nations Human Rights Committee reports argue, the La Forest commission argues and many Ontarians who came and spoke to this government and spoke to the justice committee also argued by way of a direct access system — it’s a
preferable way to provide remedies for human rights infringements. Not only does this bill allow for that direct access to provide a real, timely and effective
remedy for Ontarians facing discrimination, but it allows for the commission to
go forth and bring systemic claims on behalf of those Ontarians who don’t come
to the human rights system.
Maybe they don’t come to the human rights system because they have heard and
understood that if they go to the human rights system, they will not see a
remedy for years, notwithstanding the hard work and all of the efforts
undertaken by the people who work in our human rights system, and the commission in particular, because of the process gridlock that unfolded over the years. In fact, it was brought upon the commission, and this process gridlock is upon the commission; it was upon the commission, I would argue, in 1991. It wasn’t just me who argued it; it was Minister Ziemba who said that the backlog “is symptomatic of a more fundamental problem: outdated enforcement procedures that cannot respond to the increasing and complex cases of today.”
That was 1991. So much time has passed and so many people have continued to be caught up in the web of this process gridlock. So many people thereby have been denied the remedies that they deserve and they expect, and they should expect. They read in the Human Rights Code that they have these rights and then they turn to the system and find that the remedies are not forthcoming, in many
cases, for just far, far too long.
By enabling this focus on systemic discrimination by the Human Rights Commission and giving them powers under this bill, through the amendments in particular — amendments that they asked for and that we worked very closely with the commission to develop — the commission will be able to bring remedies for so many thousands of Ontarians who right now would not otherwise have that opportunity. They can do so by way of complaints, applications, if you like,
directly to the tribunal, or they may bring it as an intervener before the
tribunal as the tribunal is considering a particular case. That is what this
bill is all about. As we hear calls for rights to a particular process, I would
ask Ontarians to consider the many people who work in our human rights system and have contributed to the task force’s studies, consultations, papers, reviews and reports. I’d ask them to consider the fact that this Legislature has been considering for many years the importance of providing a remedy for these
rights, these rights that are Ontarians’ rights and these remedies that they
Bill 107 has been discussed. It has been considered. It has been praised. It has
been criticized. It has been debated in academic forums, in conferences, in
meetings, in community halls, in news conferences held by a whole variety of
groups. Certainly we’ve seen a considerable amount of attention in newspaper
columns and opinion pages, in committee hearings, in the halls, the corridors of
the Legislature and, of course, here in this chamber as well. We’ve heard from a
wide variety of advocates in our human rights system. We’ve heard from women’s organizations, human rights groups, community activists, cultural organizations, disability groups. We’ve heard from the academy, from legal clinics, from former human rights commissioners. We’ve heard from the people who work in the system every day and have been working in the system every day. We’ve heard from labour organizations. We’ve heard from individual citizens. We’ve heard from complainants past and their experiences. Their testimony speaks to the real injustices that come from justice delayed and justice denied that was flowing from the process gridlock that has been in place for so long and so clearly needed change in 1991, as was acknowledged by the NDP government of the day and is being recognized and accepted. We’re moving forward with those Cornish task force recommendations in this bill.
We proposed a number of amendments to improve the bill. We heard from a wide variety of groups. We heard from groups who disagreed with this bill and who brought forward changes nonetheless. I appreciate the fact that the people who disagreed with the direct-access approach nonetheless brought forward
recommendations for changes. Many of those recommendations are found in the
amendments that were put before the justice committee. I recognize that in the
time that I have here, it is important to recognize the contribution they made,
but there are a lot of amendments, and a lot of people who contributed to those
amendments. In addition to the commission, I also —
Hon. Mr. Bryant: The justice critic for the third party laughs at the
contributions made by the Human Rights Commission. In fact, the commission did participate, I say to the member, in these amendments. As I acknowledged at the time, the work that the commission did resulted in a lot of changes to the bill.
It is a great credit to the people who worked on those changes that the vast
majority of the changes they asked for are found in this bill.
I know the justice critic for the third party is going to want to talk about the
process that led to this debate and I know he’s going to want to talk about the
right to process; that is his clarion call. I’m more interested in, and I
believe that Ontarians are more interested in, what the NDP government said they were interested in in 1991, and that was providing remedies for those rights.
The discussion in the debate in 1962, the discussion in 1991, when there was
talk finally about addressing the fundamental problem of outdated enforcement
procedures, was about the substance, the rights, the problem of somebody being
denied their human rights in Ontario and how quickly we can get their remedy —
not the process rights that I know the third party today clings to with enormous
fervour, but the substance, the need to provide remedies to injustices that take
place to Ontarians. It is my view, and I believe it is the view of most
Ontarians, that to heap another injustice on top of that by providing people
with nothing more but year after year after year of no remedy at all heaps
injustice upon further injustice.
Who came forward to support Bill 107? The individual and organizational
advocates of women’s equality rights, including the Ontario Coalition of Rape
Crisis Centres, the Chatham-Kent Women’s Centre, the Metropolitan Action
Committee on Violence Against Women and Children, the Centre for Equality Rights in Accommodation, the coalition of community legal clinics, including Ruth Carey of the HIV and AIDS Legal Clinic Ontario, Kathy Laird of the Advocacy Centre for Tenants Ontario, and the Canadian Auto Workers, as well as a number of individuals who have had an opportunity to work in our human rights system.
I’m looking in the members’ gallery at a former human rights chief commissioner, Raj Anand, who not only made a contribution to this debate but has been working in this system for so many years and came to the standing committee to talk about his experience in the system, not only at the time in which he was the chief commissioner of the Human Rights Commission, but also his experience in terms of trying to assist people who were working in the system today. We heard from past Chief Commissioner Frazee, who also lent her voice of support for Bill 107, who again talked about her experience in the system, not only at the time in which she was leading the system, but also the time in which she was working in human rights, the most recent past, and of course again today.
I want to spend the remaining time talking about the future in the event that
Bill 107 receives the support of this Legislature, because anytime you change a
complaints system for the first time in more than 40 years, you’re going to have
a tough, hard and vigorous debate. That has happened. As I said many times,
we’ve been having that debate in this Legislature quite literally for more than
15 years. We’ve been having that debate by way of question period, second
reading debate — now third reading debate — and committee time for more than
200 days, in addition to the time that we spent consulting with Ontarians, and
in addition to, of course, the task force brought about by the NDP government.
But in the event that Bill 107 receives the support of this Legislature, people
are going to be, obviously, working with the government to try and ensure that
this bill is implemented in the way that I would hope everybody would want it to
be implemented — again, not presuming to know what the Legislature will do with this bill.
So I can thank in advance not only people like former Chief Commissioner Raj
Anand and former Chief Commissioner Catherine Frazee, and I can not only thank in advance the people who have supported Bill 107, but I certainly want to say on behalf of the government that we also very much want to work with those
people who I understand played a significant role in this debate. They may not
have agreed with the direct access system, but I know they agree with public
assistance and support for complainants, I know they agree with having effective
remedies for victims of discrimination and I know they agree that the goal is
timely access to justice. We may have to agree to disagree on how much process
rights we need to surround the substantive rights that need to be delivered to
But I do want to say that this government does wish to work with those people —
and I mean everybody — who have participated in the past and will be
participating in the future in our human rights system, no matter what happens
with this debate and not presuming to know what the Legislature will do with
this bill. I want to say to all those people that we do wish to sit down with
you, that we do wish to work with you, that we do want to have you working
together on the implementation of this bill, that we do want to ensure that in
fact people are getting that public assistance and we want to work with you to
determine the best way to deliver that. We want to do what I hope all members of this Legislature want to do, and that’s to deliver timely remedies to the rights
that Ontarians deserve. I hope that is what all members of this Legislature
want. That’s certainly what this government wants. I look forward to working
with members of this Legislature and all Ontarians on this important reform in
The Acting Speaker: Further debate?
Mrs. Christine Elliott (Whitby-Ajax): Bill 107 was meant to be about hope, about
equality and about justice for all Ontarians. Instead, it’s about a denial of
justice for the most vulnerable people in our society. The people who most
needed the government to be their advocate, to protect and advance their rights
as valued citizens, have been betrayed. It did not have to be like this.
I was not a member of this Legislature when the Accessibility for Ontarians with
Disabilities Act was passed in June 2005, but I’m told it was considered to be
tremendously significant in advancing the cause of accessibility and inclusivity
for disability and racialized minority groups in Ontario. At the time however,
many were concerned about the enforcement provisions of the act. But they were assured by the Attorney General that the Human Rights Commission would be strengthened and would be the appropriate enforcement agency.
In February 2006, the Attorney General announced that there would be an overhaul of the Human Rights Code and that all interested groups would be given the opportunity to provide input with respect to the changes that would be required to enhance and strengthen the commission and the tribunal. No one at this time had any reason for concern, based on the Attorney General’s previous assertions that the commission would be the appropriate enforcement agency and that full consultation would take place.
Imagine, then, the sense of betrayal felt by so many individuals and groups when
the Attorney General announced first reading of Bill 107 on April 26 of this
year. Reaction from the communities most affected was immediate. There was
outrage when the Attorney General implied that he had been engaging in
consultation prior to the introduction of the legislation. During first reading,
he stated, “This legislation is the culmination of perhaps more study and
consultation than ever before in the history of this Legislature.” The day
following first reading, the Premier stood up in an attempt to corroborate this
statement and said, “To provide a bit more information to the Leader of the
Opposition and to the House with respect to with whom the minister consulted,
just some of those groups include: the Metro Toronto Chinese and Southeast Asian Legal Clinic, the African Canadian Legal Clinic, the Ontarians with Disabilities Act Committee” — and the list continued.
In a letter dated May 1 to the Premier, Margaret Parsons, executive director of
the African Canadian Legal Clinic, stated, “We read with great concern your
remarks in the Legislature on April 27, 2006, with respect to your government’s
human rights bill. The African Canadian Legal Clinic has not been consulted at
any time by the Attorney General on this bill. To the contrary, we have been
ignored and deliberately excluded by the Attorney General and his staff from
consultations on this bill, despite our many requests.” She continues on to say
at the end of her letter, “It is indeed a shame that your government continues
to mislead the public on the consultation process.”
In fact, several groups announced quite forcefully that they had not been
consulted. Interestingly enough, I should point out that three of the groups the
Premier chose to highlight as groups with whom the Attorney General had
consulted would later form a coalition to express their indignation at the
government’s decision to invoke closure on this bill without consultation.
At any rate, at the time the Attorney General said, “No problem” to all these
groups: “we are going to be consulting with you,” and he went on to state, “With
this introduction of the bill, we are seeking to advance the debate. We need to
continue to have public debate and consultation. That must continue. We will
continue to meet with those in the human rights community to get their input as
the bill progresses through the Legislature, and I look forward to province-wide
public hearings on this bill to take place as soon as possible.”
So even though there were still significant doubts on the bill, everyone wanted
to believe that it would be amended and that they would be consulted, and so it
I should note at this point that there’s no question that all of the parties —
the official opposition and the third party, as well as the government — agreed
that there need to be changes to the Human Rights Code, that there are
significant delays and backlogs, it needs to be modernized and so on, but at no
point did we ever have the opportunity to have a discussion with respect to
anything other than the direct-access model. That was the only thing that was
presented. That was the only thing we were allowed to continue to debate.
There were a number of groups that were quite frustrated at the lack of some
other ways of dealing with modernizing and amending the bill. There were some
interesting comments that were made by a number of presenters on this point,
specifically Ms. Elisabeth Brückmann from the Parkdale Legal Clinic. I have some
significant quotations from her evidence before the justice policy committee.
Also, Mr. John Rae from the Alliance for Equality of Blind Canadians and the
Accessibility for Ontarians with Disabilities Act Alliance had some suggestions
about how the existing system could be reformed in a much more cost-effective
manner, but again that was something we were never really allowed to fully
In any event, the justice policy committee hearings were then scheduled, after
the announcements by the Attorney General, and took place in early August in
London, Thunder Bay and Ottawa. It was known at that point that the hearings
would also take place in Toronto at a later date.
In the spirit of co-operation and based on the Attorney General’s assertion that
full consultation was necessary in order to realize meaningful and effective
change to the Human Rights Code, it was unanimously agreed in committee in
August that every attempt would be made to accommodate everyone who wished to present, because it was such an important and fundamental issue. Arrangements were therefore made to lengthen the hours for the hearings, and I should note that the committee staff went above and beyond in order to accommodate that. We had some quite lengthy hearing days that were attended of course by all members of the committee, and the staff was very gracious in accommodating those requests.
But in all three locations essentially the same points were made. The
overwhelming number of presenters were, first of all, upset that the Attorney
General had proceeded to committee hearings without consultation on the drafting of the bill in the first place, and with respect to the content of the bill,
they were concerned that the direct-access model, coupled with the reduced role
of the commission, would mean that complainants would be left without adequate representation and would be forced to act on their own behalf throughout the entire process. This would, in their view, and as expressed to us in committee, be even worse than the existing system, because at least with the existing system, the commission staff investigate the complaints and assist in bringing issues before the tribunal if a case is warranted.
It should be noted that even the supporters of the bill in the committee
hearings supported the bill with such significant caveats that it really could
be argued that in fact they didn’t support the bill at all. The major problem
with the bill from their perspective was the fact that the legal support centre
which was the supposed third pillar of the legislation, along with the Human
Rights Commission and the Human Rights Tribunal of Ontario, was not entrenched in the legislation itself. There was a real concern that it didn’t have any substance and that it actually wasn’t going to be what it was supposed to be.
Instead, paragraph 46 of the bill, as originally drafted, provided that the
Attorney General could make financial arrangements with other service providers in order to be able to provide the necessary legal services. In fact, that’s the problem with the direct-access model being advanced in the bill, from the perspective of the PC Party. The notion of direct access is not in and of itself
objectionable, but the Cornish and La Forest reports, both of which advocated
the direct-access model, indicated that the direct-access model would fail if
the legal support centre was not fully funded. Though I wasn’t present, I can
imagine that these hearings were a little bit of a cause for concern at the
Ministry of the Attorney General because they didn’t indicate the level of
support that I believe was originally anticipated.
The matter lay dormant until late October, when the justice policy committee met again to plan and organize the hearings for Toronto. Both the member for Niagara Centre, Mr. Kormos, and I indicated that it was important that all who wished to present be given the opportunity to do so, given the importance of the subject and also the fact that the precedent had been established during the travelling committee hearings in August. There was general agreement that the hearings would be fully advertised, at a total cost of $106,000. It was also understood that the hearings would need to continue into the winter months in order to accommodate the many, many groups and individuals who wished to present. The list outstanding from the first ads contained over 160 individuals and groups, and it was certainly anticipated that the second round of ads would result in many more presenters.
The report by the subcommittee was presented to the committee on the first day
of Toronto hearings on November 15 and was unanimously accepted by all members of the committee. The Attorney General had asked to appear before the committee on the 15th, and again, in the spirit of allowing everyone who wanted to appear before the committee to do so, there was unanimous consent. The Attorney General indicated at that time that he would be tabling a number of amendments to the bill that would strengthen and clarify it. He provided a document which purported to explain the amendments, but in fact it did nothing more than muddy the waters and cause even greater anxiety, concern and frustration on the part of the many individuals and organizations concerned about the bill.
At this point, I would like to quote from a letter that was sent by Ms. Toni
Silberman — she is the immediate past president of the League for Human Rights
of B’nai Brith Canada — to Premier McGuinty on November 21. She indicated, “A
subsequent technical briefing delivered by Ministry of the Attorney General’s
staff confirmed our fears that the amendments were not, in fact, amendments, but further amorphous promises with neither the fullness of thought nor the
wherewithal necessary to implement them.”
Then, without warning, the McGuinty muzzle motion was introduced on November 21. The effect of the motion was to invoke closure on Bill 107 and to choke off all further debate. All presentations after November 23 were summarily cancelled, even though there were still ads appearing in local newspapers for winter hearings. Among other things, what a total waste of taxpayers’ money.
To say that there was outrage among the communities most affected is an
understatement. I would like to quote from a sampling of the comments made by a number of groups and individuals with respect to the McGuinty muzzle motion.
Again, in her letter to Premier McGuinty of November 21, Ms. Silberman stated,
“We now understand that the government has filed, without warning, a motion, not only to cut off public hearings on the bill, but also to force short debates …
on so-called amendments and third reading. We find this action unconscionable
because the first four days of hearings were replete with supporters of the
bill. Many of those who oppose the bill were scheduled to appear through the
rest of the month and throughout December, having submitted their request months ago. They will no longer be afforded that opportunity, having spent months preparing their submissions. These are the very individuals and groups that the Attorney General did not consult prior to drafting its widely criticized reform of the human rights system. And their views are being muzzled. It is ironic that the government is denying them the right to a hearing before the standing committee, when the government’s strongest argument in favour of Bill 107 is the fact that it supposedly ensures everyone a right to a hearing at the Human Rights Tribunal.” How ironic indeed.
I’d like to quote from a letter sent by Ms. Barbara Hall, the current human
rights commissioner, also to the Premier and also dated November 21, wherein she stated, “I wish to express my profound dismay at your government’s notice to
invoke closure and prematurely end debate on Bill 107,” an act to reform the
human rights act.
Further on in the letter she also stated, “It may seem trite to remind you that
justice must not only be done, but must be seen to be done. This is an essential
truth within the law and, particularly, in regard to human rights. Such rights
have come to form the foundation of our democratic principles. There are those
who will see your actions as a denial of those principles.”
In conclusion, Ms. Hall stated, “On behalf of the commission, I urge you to
withdraw the motion for closure. This should be a time to encourage discussion,
for consultation and for healing of divisions. All sides share the goal of a
stronger, more effective human rights system for Ontarians and care passionately about human rights. It is crucial in this context to seek common ground, for the sake of the people we both serve. Please, let their voices be heard.”
Finally, in a further letter from Ms. June Callwood, also addressed to the
Premier and to the Attorney General and dated November 21 — it should be noted
that Ms. Callwood was one of the early proponents of the direct-access model —
she stated, “To my great dismay, these hearings have been cancelled, and the
government will not have the benefit of listening to thoughtful analysis of
those elements which could in future cause some injustice.
“This bill is much too valuable to be hurried through these critical final
stages. I beg you, I urge you, to reschedule the hearings.
“We all want what you want — the finest solutions to the human rights process
that can be produced.”
Notwithstanding the comments made by these very eminent and incredible people, the government refused to budge.
There are many significant concerns with respect to the substantive provisions
of Bill 107 that remain unresolved because of the McGuinty muzzle motion.
First, the Liberal members of the justice policy committee defeated our proposed
amendment — that is, proposed by the official opposition — that would entrench
in the bill a person’s right to have their case heard within one year. The
Attorney General had stated that, under this bill, cases would be heard within
one year. During debate on the motion to invoke closure on this bill, the
Attorney General stated, “This is a process where somebody can go to the human
rights system and within a year you can get a result. That’s justice.” If that
were his intention, then why was he not prepared to entrench it in the
legislation? Nothing in this bill, as amended, sets any timelines within which a
case must be heard.
Secondly, the Attorney General promised that the new process would be “stronger, faster and more effective to better serve the people of our province.” Well, there are several reasons why this is unlikely to be the case.
Pursuant to sections 37, 38 and 39 of the bill, the Human Rights Tribunal can
make its own rules and establish its own procedures, subject to the requirement
of fairness. Although I believe it was intended that the process be made more
flexible so that it would be easier for complainants to present their case
before the tribunal, the fact is that the issue of fairness is subjective.
Fairness to the members of the tribunal might not be fairness to the complainant
who’s trying to advance his or her complaint before the tribunal.
The situation is also made much worse by the fact that the tribunal is not bound
by the rules of natural justice that are established within the boundaries of
the Statutory Powers Procedure Act. In the case of a dispute between the rules
set out in the SPPA and the rules established by the tribunal, the latter will
Moreover, the bill gives the tribunal the authority to independently examine
witnesses and even to conduct its own inquiry to review a complaint. This is a
huge departure from the commonly established rules for administrative tribunals, and has the potential to lead to an inquisitorial system wherein the tribunal members can potentially hijack a proceeding and leave both complainants and respondents without the ability to control their own presentations, arguments and evidence. It certainly can be argued, and I would submit to you, that this is not a course of action that should be followed and it is not in the best interests of all Ontarians, particularly when it comes to the advancement of human rights.
There’s also the significant concern remaining regarding the role of the Human
Rights Commission in the future. The Attorney General has indicated that the
intention of the change was to free the commission from the requirement of
investigating individual complaints and to allow it to pursue education,
advocacy and investigation of complaints of discrimination that are systemic in
nature. Many presenters, however, expressed the concern that it was difficult,
if not impossible, to separate individual from systemic cases of discrimination.
This was commented on by a number of presenters, but I would like to quote from one of the presenters who was quite eloquent and very aptly made a number of arguments with respect to this point. Her name is Elisabeth Brückmann, and she’s a staff lawyer with the Parkdale legal clinic. She noted that there was a long list of legal aid clinics on the list of supporters of the bill but, in fact, very few of these clinics had any experience with matters before the Human
Rights Tribunal. I’d like to quote directly from her testimony before the
justice policy committee on November 22 on several occasions, the first of which
“We were really quite surprised when we saw that 55 legal clinics had signed on
to a letter urging the government to move forward with this supposed reform. We were dismayed when a number of our colleagues at other clinics — Kathy Laird from ACTO and a number of others from two other clinics — spoke and said they were speaking for the clinic system. I took a look at the list at the back of
this letter. I realized that what was not noted is whether these clinics
practise human rights law. I can tell you that the vast majority do not. It’s
not really surprising, because legal aid clinics in Ontario are extraordinarily
underfunded. Clinics across the province lack the resources to assist people
with human rights violations because they barely have the staff to help
low-income people maintain housing or social assistance. There’s just no staff
time for human rights.”
She then went on to say: “The debate over this crucial piece of legislation,
which speaks directly to people’s need for equal accessibility, is now
inaccessible. A piece of legislation founded on the premise that everyone should
have a right to be heard is being rammed through without everyone being heard.
The promises we received from the Attorney General that the consultation notably missing from the beginning of the process — apart from one that was held 15 years ago — those promises that consultation would be held have been broken. I find it depressing and demoralizing and hypocritical. I am also, as a clinic lawyer, desperately worried, because this bill is profoundly flawed.”
Finally, with respect to the separation of systemic and individual complaints,
she indicated that, “First of all, the notion that systemic and individual
complaints can be separated from one another is completely unrealistic. I find
it very, very hard to believe that there is an expert in human rights out there
who would suggest otherwise. I have never presented an individual human rights case that did not have a systemic element, because all individual cases are
located in a societal context and that societal context of discrimination is
brought to our attention through those individual cases. To attempt to separate
the individual from the systemic is to fundamentally miss the point of how
“Under Bill 107, the role of the crown is lost. Each complaint loses its
systemic context and it loses the societal support provided by the crown. The
violations become just another private dispute between two parties. It’s a
contract dispute or a personal injury. While this sort of neat, private dispute
may be very attractive to lawyers who want to have their matter neatly bounded,
it’s not what is wanted by the communities for whom maintaining a basic human
rights system is an element of survival. They need to know that what they
suffered is a harm that has been suffered by us all and that we all perceive
ourselves as needing the crown to step forward to prosecute.”
Finally, one must consider the linchpin of the bill, the most fundamental piece
of the legislation, which is the legal support centre. This is where the flaws
of this bill, both substantively and procedurally, converge. Bill 107, as
originally drafted, provided in section 46.1(1) that “The minister may enter
into agreements with prescribed persons or entities for the purposes of
providing legal services and such other services as may be prescribed to
applicants or other parties to a proceeding before the tribunal.”
The statement by the Attorney General on November 15 before the justice policy
committee did nothing to allay the concerns of those who suggested that, given
the fact that the justice sector budget was flatlined through 2008-09 and that
the existing legal aid system is stretched to the limit and can barely maintain
and carry on with its current mandate, there’s no way a fully funded legal
support centre is going to be possible under this legislation.
Yet, on two occasions in this Legislature, the Attorney General assured everyone
that there would be a lawyer for everyone who needed one, to and through the
tribunal, in the full prosecution of their complaint. Contrast this to
statements made by the minister’s staff at the so-called technical briefing to
stakeholders following the Attorney General’s statements before the justice
policy committee on November 15 and you’ll see the discrepancy.
I was not in attendance at that technical briefing, but again, Ms. Bruckmann
was. She also commented on that in her statement before the justice policy
committee. What she had to say about it is quite revealing. Again, I’ll quote:
“For me, the most serious” — and this is with respect to concerns about the
bill — “of these is the gaping hole that is the human rights support centre.
This centre, we’ve been told, is the third pillar of a shiny new system, the
pillar that will make direct access work. It’s the pillar that’s going to make
our new, innovative system the envy of all. Every time a critic raises concerns
about low-income people trying to navigate this new system alone, we are told,
`No, no, there will be a human rights support centre and everyone will be
supported.’ It is the answer for everything in Bill 107. But what does a pillar
look like? We tried to find out at this technical briefing. We don’t know, I
don’t think that any of you know, and at the technical briefing, it became clear
that the Attorney General’s staff don’t know. When pressed, they said, `It’s too
soon to know.’ We were actually told that we needed to stop thinking about
worst-case scenarios and be more optimistic — you know, these are the smart
people. When we pointed out that we weren’t optimistic to begin with and
proceeded to ask further questions, we got the same answer. Is there a budget
for the centre? They don’t know. Has a model been chosen? They don’t know. Would it look like a legal clinic? They don’t know. The Attorney General’s staff does not know, and I find that terrifying. You’re being asked to endorse a
dramatically different model of human rights enforcement, one which failed in
another province, based on `I don’t know.’
“One thing they do know, though, is that not everyone will get representation —
they were clear about that — and not everyone will get a lawyer. The support of
a lawyer is crucial. Human rights are very complicated; it is a complicated area
It’s pretty clear that Ms. Bruckmann didn’t put a lot of faith in what was going
to be done in order to advance the human rights centre, and, it would appear to
me, with good reason. This is the most important part of this bill, and it’s no
wonder that people are outraged, because there are still no answers and this
bill is about to be passed.
As I said at the outset, it didn’t have to be this way. Since it’s clear that
this government has no idea yet how it’s going to fund the centre, how much it’s
going to cost or even how it’s going to operate, there is no big rush. It’s
clear the consultations could and should have continued on this bill, yet
they’ve been summarily cut off and now we’re never going to have the opportunity to know what the best system would be for the enforcement of human rights in Ontario.
Ms. Bruckmann, again — I’ll quote her one more time because she was very
eloquent on the subject. She summed it up with these comments: “The bill is a
disaster waiting to happen. The bill will not make Ontario a leader in human
rights. It’s going to reproduce the embarrassment that the government in British
“But the political fallout is not my clinic’s problem. My problem is going to be
the low-income people who come to our door, when all this is said and done, and
say, `I went to the commission and they sent me to the tribunal. I went to the
tribunal and they sent me to the legal support centre. I went to the legal
support centre and they said they couldn’t take my case.’ Then I’m going to have
to say to them that I can’t take their case either because I’m stretched thin; I
can’t take any more. I’m going to have to tell them that the human rights
protection that they thought they had under the Human Rights Code is
meaningless. This isn’t just a political disaster, it is a tragedy that robs the
people of Ontario of any hope of a functional human rights system.”
In my submission, Ms. Bruckmann is right. How sad that a piece of legislation
that could have had so much promise and could have done so much to reform the human rights system in this province has been ignored. Debate has been choked off. We’ve only been given one opportunity to debate on one proposed model. I fear it is a disaster that’s waiting to happen.
To conclude, we’re being forced to deal with one day of third reading on this
debate, and we’re going to have to vote on it tomorrow. How ironic that the
debate happens on the International Day of Disabled Persons. It’s a really sad
day in Ontario.
Mr. Howard Hampton (Kenora-Rainy River): I want to inform everyone that I will
be sharing my time with the member for Niagara Centre, who has been our very
able critic with respect to this legislation.
I want to confine my remarks to the process of how we got here. I want to start
out by saying that I think most fair-minded people would recognize that human
rights legislation is in the nature of quasi-constitutional legislation, that it
is legislation that is more important than regular bills that we might see from
time to time in the Legislature. There’s a good reason for that: because it
defines people’s human rights in the sense that the Universal Declaration of
Human Rights of the United Nations sets out rights that are universal not just
to this society but to all nations, all societies in the world. So we’re not
dealing with just run-of-the-mill legislation here; we are dealing with
quasi-constitutional legislation that can have very deep and long-lasting
effects upon people’s lives and can have very deep and long-lasting effects upon
whole identifiable groups of individuals.
This is the kind of legislation which in fact should receive more debate, more
discussion, more examination and more cross-examination than any other bill
which might proceed through this Legislature. That, I think, would be the
expectation of the average citizen of Ontario. It would certainly be the
expectation of anyone who has any knowledge of human rights and human rights protection. That’s what we should be doing. But alas, human rights protection is being sacrificed by the McGuinty government in the political interests of the McGuinty government.
As I read Ian Urquhart’s column today in the Toronto Star, I think Mr. Urquhart
has correctly perceived the government’s decision. This is a government that
knows it’s headed to an election within nine and a half months and doesn’t want
any discussion about this kind of fundamental issue in the run-up to an election
campaign. So it has made the crass political decision and sacrificed human
rights protection in order to protect the government’s narrow, political,
partisan interests. That’s why we are here now. That’s why the government has
cancelled the public hearings. That’s why the government has taken a battering
ram to shove this legislation through the Legislature with a minimum of debate
I’ll let the government defend that kind of decision going forward from here.
But I believe any fair-minded individual who looks at the process so far could
not help but come away with the conclusion that I’ve just set out.
The government offers up excuses. One of the excuses that was offered up was
that my colleague Mr. Kormos was going to filibuster. If all nine New Democrats
in the Legislature used all of our allotted time in the debate and discussion of
this bill, we might be able to examine it for about a day and a half of
legislative time. Apparently, what the McGuinty government is saying is that a
day and a half of debate and discussion would be too much, that that is too much
discussion, too much examination and cross-examination of their human rights
scheme. If that is the position of the McGuinty government, then what they have
put forward must indeed be flawed, because if it can’t stand a day and a half of
discussion by nine New Democrats, if that’s their definition of filibuster, then
this must indeed be fundamentally flawed, and the government doesn’t want to
subject it to any kind of inspection or any kind of analysis.
Why would the government not want to have its legislation subjected to that kind
of analysis? Let me suggest a couple of reasons. It has been the tradition in
this province that the protection of human rights is not just a private matter
but a public matter, that the public has an interest in advancing and protecting
human rights, that the public has an interest in ensuring that where there has
been discrimination, where there have been human rights breaches, not only is
the complaint of the individual person addressed, but we look at the systemic
issues as well and we look at what is needed to ensure that whatever the
particular breach of human rights may be, we take effective action publicly to
guard against it. The McGuinty government says that there are flaws and problems with that, and there may indeed be. But what the government wants to offer up now is what we New Democrats call, in effect, the privatization of human rights. The public is going to assume a much, much smaller role, and, according to the McGuinty government, they want to see more and more private litigation. As a lawyer who’s dealt with private litigation, here is the reality that is
presented all too often across Ontario every day: If you have money and you can
afford to litigate, you count; if you don’t have money and you can’t afford a
lawyer, you don’t count.
The government will then say, “Oh, yes, but we’re going to put some money in a
legal aid account” or, “We’re going to put some money in a community legal
clinic” or, “We’re going to set aside some money to look after those folks who
cannot afford a lawyer.” Actions speak louder than words. The legal aid system
has never been in as much trouble as it is now under the McGuinty government.
Literally tens of thousands of people across Ontario are written off every day.
They cannot retain a lawyer with their own resources they cannot get a legal aid
certificate under the McGuinty government. They’re simply told, “You don’t
count; you don’t matter.” I suggest that, given the spotty record that the
government has put forward with respect to this human rights scheme, we’re going to see more of the same, only now it won’t just be with respect to workers’
compensation; it won’t just be someone who needs representation with respect to
criminal law, family law or poverty law issues. Human rights issues now will
also fall into the same sort of category. If you have money and you can afford
to retain a lawyer in Dalton McGuinty’s Ontario, your human rights count. If you
don’t have money and you can’t afford to retain a lawyer, then join the waiting
list for legal aid and discover how little your human rights count. I suggest
that’s where we’re headed.
What is a real travesty here is, first of all, that this is a government that
once again promised that it would be different. This is a government that
promised not that long ago that it was going to hold extensive hearings, that it
wanted to hear from all those people it had not spoken to and had not raised
these issues with. And what do we find? Just as people were prepared to answer
the ads in the papers, just as they were prepared to ask for time to be heard,
the McGuinty government slams the door and says, “We don’t want to hear from
you, and whatever you have to say doesn’t matter to us.”
In the time I’ve been around here, I don’t think I have seen a more cavalier
attitude on the part of a government, any government, with respect to human
rights than we’re seeing now from the McGuinty government — a completely
cavalier attitude, an arrogance that says, “We don’t need to talk to you; we
don’t need to hear from you; we don’t need to consider your point of view. We’re
not interested in your arguments; we’re not interested in your insights; we’re
not interested in your experience and we’re not interested in how this may
affect you. We, the McGuinty government, in our arrogance, know better than any and all of you. Therefore, we’re simply going to roll over democratic rights.
We’re going to put the selfish, narrow, partisan political interests of the
McGuinty government ahead of human rights protection, and people can just get
If I may suggest, I don’t think people are going to just get over it. This is
one promise that I sincerely believe is going to come back to haunt the McGuinty
government in a very big way in many communities across this province. Never
have human rights or human rights protection been treated in such a cavalier
fashion by any government.
Earlier today, we had an opportunity to pay tribute to a former Liberal Attorney
General, Ian Scott. Let me say, if Ian Scott were here today, he would be one
very angry individual. He would be very upset at the course this government has
taken. He would be very upset at the process, or the lack of process, the lack
of democratic process, that this government has tried to force down the throats
of vulnerable groups across this province.
This is completely, completely out of line with any measures, any process taken
with respect to human rights in this province in not just the last 10 years, not
just the last 20 years, but the last 30 or 40 years. This will come back to
haunt the McGuinty government over and over again.
Mr. John Tory (Leader of the Opposition): I wanted to come and join what is
unfortunately the tail end of this third reading debate because I just thought
it was worth following on some of the comments of the leader of the New
Democratic Party and others who have spoken, and of course the very excellent
job that’s been done by our critic, the member for Whitby-Ajax. I really just
wanted to state my profound regret at the fact that in an area such as this,
where over the years we’ve had so many good traditions established as to how
things are done in this area, this government has chosen, as the leader of the
New Democratic party just said, to place its own political interests ahead of
protecting and preserving and respecting those good traditions that have been
established in this most important area of legislating.
I’m not sure there is another area that’s more important in terms of the role we
play here and the function that we perform here than the protection of basic
human rights. When I talk about good traditions, I talk about the tradition that
has existed throughout time. I referred in the speech I gave earlier on this
subject — I’ve forgotten what debate it was in, but it was on Bill 107 — to
the fact that in years gone by there was great care taken to make sure there was
multi-party co-operation on the development and passage of human rights
legislation. That tradition has been abandoned.
The next point I’ll come to, which is about community consensus — I’m not
complaining about the fact that perhaps we haven’t had time to state our point
of view, but we’re here on behalf of people who need to have a voice. We haven’t
had time because we’ve been choked off in our ability to talk about this matter.
So the tradition of multi-party co-operation has been abandoned.
The tradition of community consensus around human rights legislation has been
abandoned. It was always the case that you worked and you worked and you took the time that was necessary to make sure you had the consensus of the community, standing behind something that has been described accurately as
quasi-constitutional legislation, and you tried your best to make sure that
happened. That has not only been abandoned; it’s been stomped on by this
government under the instructions of the Premier’s office. I’ll come back to
that in a moment. The Attorney General has not stood up and done his job in
terms of making sure that that tradition, which was a good tradition, an
honourable tradition in this province, was respected. There was a good tradition
that complainants would know, could know and did know that when they complained, there would be someone in their corner and that they didn’t have to go out and hire somebody or pay somebody. They wouldn’t have to reach into their own pocket in order to advance a complaint in respect of their own human rights.
I experienced that when I was a business leader. You would get the
communications from the Human Rights Commission of Ontario acting on behalf of people who had filed a complaint and who had worked for or somehow dealt with the company. The fact is that those were good people who did a good job. They may not have been resourced adequately, and I’ll come back to that too, but the fact is that they did their job. People didn’t have to lay out a penny from
their pockets to get it done, and in many cases they settled satisfactorily
those very same complaints without people ever having to reach into their
pockets or get involved in something that was excessively legalistic.
Another good tradition was that the commission had a role to play that was
clearly defined and understood in terms of ensuring that systemic issues were
aired and addressed. I think that, notwithstanding suggestions and amendments
that were put as to how that could be made better in this legislation, which
this government is in such an incredible rush to get passed for political
reasons and because it’s Christmas and they want a more peaceful winter, the
good tradition that the commission had its clearly understood role to play in
advancing and airing systemic issues has been seriously called into question.
I regret to say this, but the last one I want to mention, which I think is a
good, important and time-honoured tradition around here and in other
British-based Parliaments, is that the Attorneys General of the province in past
years, including the one we paid tribute to earlier today, who was a great
Attorney General in this province — and Attorney General McMurtry and Attorney General Wishart and so on — somehow always managed to position themselves, because they saw it was an important part of their office, in a slightly
different position from all of the other cabinet ministers in terms of how they
did things: how they moved legislation through here, how they actually listened
to and respected that desire to have multi-party co-operation on the issues that
related to the legal and justice system and human rights and how they actually
respected the need for community consensus, in terms of having that before you
could proceed forward with something as important as quasi-constitutional human rights legislation.
I will say, putting the best possible light I can on it in this instance, that
it is unfortunate that the Attorney General has allowed the Premier’s office to
stomp on that tradition too — whether it’s in the questions and answers we’ve
had in this House, whether it’s how the amendments have been treated and dealt
with — and, most particularly, how so many members of the public, hundreds of
people representing thousands of people who have the biggest and most profound concerns about this legislation and about their rights going forward, have been stomped on, have been shut out, have been told to shut up. They’ve been told their views don’t matter; there’s no time to listen to them.
I will put the best interpretation possible on it by saying that that is a
construction of the Premier’s office, which has forced this Attorney General to
abandon the time-honoured manner in which that office is conducted in this
Legislature and as part of the government of Ontario. The only disappointment I
have is that the Attorney General hasn’t stood up and said, “I object to this
abandoning of that tradition,” which I think is an important one that speaks to
the effectiveness of the Office of the Attorney General and the role it plays.
I have a short time available to me, but of course we have the bad tradition
that is being followed through on. I’m not going to give a lot of comments about
closure or time allocation and so on. People are fond of saying that it was done
103 or 603 times. What does it matter? We’re talking here today about this piece
of legislation. We’re talking, as the leader of the New Democratic Party said,
about the fact that Mr. McGuinty — the Premier — said in the election
campaign, “I will be different.” He said he would bring change to Queen’s Park.
All that has happened since he got here as Premier is that Queen’s Park has
changed him. The man who said he was going to come down here and stand up for the right to have this kind of open discussion, to listen and take the time to
listen, to respect people and what they had to say, especially on matters as
fundamental as human rights, has certainly changed, because we’re seeing
absolutely none of that now.
Instead, what we have is the adoption by this government of the bad tradition,
which is that you pass a piece of legislation now and ask questions later:
“Don’t worry. Everybody’s going to a lawyer. There’s no need to worry about
that.” “Okay. How much is the budget?” “We don’t know that.” “Where is the
clinic, and who’s going to run it?” “We don’t know the answer to that question
either.” “How about putting a guarantee into the bill, as the member for
Whitby-Ajax and others did? As the Attorney General himself said, `Fine. People
should be guaranteed that their case will be dealt with in a year.'” “No, no, we
can’t have that. We’re voting that down.” There were all kinds of amendments of
By the way, I should say that I don’t apologize for one second for anybody, or
on anybody’s behalf, including our own party, for the fact that a backlog
existed. That’s not acceptable, but there was never any opportunity given to
people to come in here and say how you might properly have funded the current
system to make it work better, how you might have developed some other system
that wasn’t developed by this government in the dark recesses of their own
little corners without any input. There just wasn’t. They said, “Look, this is
the way we’re doing it. If you don’t like it, lump it. We’re going to jam it
down your throats.” The very fact that it’s a bad tradition that they’ve
adopted, which is to take steps, pass legislation and ask questions and answer
them later, I think is inexcusable. That’s the way it has always been done and
that’s why people have no faith in this place. Good traditions are gone, bad
traditions are picked up by this government — very unfortunate when it’s a
matter as fundamental as this.
Mr. Kormos: I’m not pleased at all to be speaking to this bill on third reading
under these circumstances and in these conditions: but two hours permitted by
this government in their McGuinty muzzle motion for third reading debate on one of the most substantive, and at the same time incredibly flawed, bills that this government has put forward. The government promised score after score of
individuals and organizations that wanted to speak to this legislation that they
would have their chance to speak to it. The government published over $100,000
worth of advertising, that continued to appear after it shut down the
committees, telling people they had under December 15 to apply to appear before
committees that would meet throughout the winter months, when this Parliament was in the course of its winter break and when legislators had all sorts of time on their hands to listen to those people.
The government, in the course of promoting its agenda around Bill 107, either in
its own right or through its spokespeople, defamed, libelled and slandered
people working in the Ontario Human Rights Commission, those front-line workers and their managers and, inherently, the commissioners. The government members of the legislative committee promised that those front-line workers would have a chance to appear before the committee to respond to some of the incredibly scurrilous — and, I say to you, we would have discovered in no small part mythical — stories being told about them, and so-called delays, delays that are undeniable. We’ve been raising this in the Legislature over the course of the last decade and change; of course we have. An understaffed, underresourced
commission is not going to work very efficiently or very effectively. And a
gutted commission, a commission that’s been abandoned, a commission that’s been locked and padlocked and simply left to rot with no staff and resources and no legislative structure, is going to be even less effective.
“Debate is not a sin, a mistake, an error or something to be put up with in
Parliament. Debate is the essence of Parliament.” Stanley Knowles said that in
our federal Parliament in 1968. It was as valid then as it was 20 years earlier,
and it’s as valid today as it was then. What is government afraid of? This
government broke some very significant promises to a huge number of people in
this province in its flight from the debate on this legislation, its flight from
the debate, its refusal to hear from people who have something very important to
say about not just the legislation but about the principles involved, the fact
that this is the privatization of human rights enforcement in the province of
Ontario. Just as we prosecute criminal code offences, crimes, publicly, and we
investigate them publicly with our police forces and prosecute them at the crown
attorney’s offices, and the style of the action is the Queen versus whomever, if
I in turn want to sue the thief who stole the radio from my car, I can go to
Small Claims Court or Superior Court, and the style will be Kormos versus thief.
They’re two very different concepts, two very different approaches with two very
different rationales. One is for the individual to get individual redress and
the other is to address the broader issue and the public concern around crime,
and the development and assurance of safe communities.
You see, it’s not called the individual rights code, it’s called the Human
Rights Code. Individuals who are complainants are but that, and that’s a good
thing. You can’t talk about an individual complaint without talking about
systemic concerns, because if there weren’t systemic concerns, there wouldn’t be
individual complaints. Discrimination doesn’t happen in a vacuum. It doesn’t
happen one on one. It’s not a binary thing. Discrimination is a societal thing
that lives in a structure, that feeds on attitudes, misbeliefs and certain
perverse values. It’s not about the relationship between me and another person;
it’s about the fact that discrimination can thrive, the fact that we have to
address it, expose it, confront it and eliminate it, and you don’t do that by
privatizing the human rights system here in the province.
Let’s talk about some of the amendments that the government brought forward. The government insists that the commission is going to focus its attention on
systemic discrimination, but of course there will be no investigative capacity
on the part of the individual complainant. Just like people don’t tend to commit
crimes in full view of others, people don’t tend to discriminate while scribes
are recording and documenting the evidence. Discrimination, as so many victims
know, can be so insidiously and sometimes politely subtle, yet have as
significant an impact as the literal slap in the face, the literal blow to the
Let’s look at what this government in its wisdom proposes for investigative
powers on the part of a commission. I recall in committee — because I made
notes on the government amendments that I had read; I’d be reading around 7:30, 8 o’clock in the morning, and Mrs. Elliott was there — I had written, “Stupid,
stupid, stupid,” on this particular amendment.
Let’s look at what the government proposes for search warrant powers on the part of the commission conducting an inquiry. The commission may go to a place, knock, knock, knock on the door and in writing request the production of a
particular document if it’s conducting an investigation into discrimination and
it believes that that document is relevant. The party is not compelled to turn
over the document. It is only after the commission — knock, knock, knock —
attends at the place and in writing requests a copy of that document that the
commission, if it’s denied that document, can go to a justice of the peace and
obtain a search warrant. Oh, please. Why don’t we start telling our police, “You
can go down to the outlaw biker club. You have to go there first and request
their drugs. It’s only when you go there and request them, identifying
yourselves as police officers, and they say `Sorry, I don’t think so,’ and slam
the door in your face that you can go to a justice of a peace and get a search
warrant”? That’s what the government’s amendments were to Bill 107 in terms of
the investigative powers of the commission. That’s what the commission has to do before it can get a search warrant. Have you people never heard of paper
shredders? This is 2006, for Pete’s sake. People who discriminate — corporate
entities that discriminate, employers that discriminate — sure as hell aren’t
going to keep the evidence sitting around for a commission investigator to go
running after, after they’ve attempted to knock: “I want those employment
records that we believe will demonstrate continuing discrimination against a
particular applicant. And if you don’t give them to us, we’re going to come back
with a search warrant.” Do you really think they’re going to be there when you
Even more insulting, you give the tribunal the authority to appoint an
investigator, but you don’t even give that investigator the capacity or the
opportunity to obtain a search warrant. The investigator on behalf of the
tribunal is entirely at the mercy of the volitional participation by the subject
of an investigation in providing evidence of their discrimination against a
person or persons. Regardless of where you stand on the issue of privatization
of human rights enforcement or retaining that very important public role, that’s
just bad legislation, and it is, with all due respect, Speaker, as I noted a
week ago at 8 in the morning in my office, stupid, stupid, stupid.
I know that the Attorney General has somehow expressed nothing but disdain for process. I for one think that process is important. That’s why we have
principles like due process that are so thoroughly embedded in our sense of
fairness in the application of law. Understand that the tribunal makes its own
rules, that the tribunal can make rules in contravention of the Statutory Powers
Procedure Act. Understand that there isn’t a single section of the Statutory
Powers Procedure Act that the tribunal has to comply with if the tribunal so
chooses. This isn’t the result of regulation passed by the Lieutenant Governor
in Council. It’s not the result, even, of an edict by the Attorney General,
never mind law passed in this Legislature. It’s about the tribunal being able to
override one of the most fundamental pieces of codified natural justice, amongst
other things, that’s ever been — the Statutory Powers Procedure Act was a
turning point in the development of law, of administrative and tribunal law here
in the province of Ontario. This is a cornerstone of the assurance of justice in
Take a look at 37.1, yet again an amendment to Bill 107. This is scary, scary,
scary stuff. This should even cause the advocates for Bill 107 to stop and think
“The tribunal shall dispose of applications made under this part by adopting the
procedures and practices provided for in its rules or otherwise available to the
tribunal which, in its opinion, offer the best opportunity for a fair, just and
It doesn’t even require that the standard they meet be one set by a third party
— rules that “in its opinion, offer the best opportunity for a fair, just and
expeditious resolution….” Reading the amendments that the government passed,
notwithstanding concerns and objections, Mrs. Elliott and I learned that there
doesn’t even have to be a hearing in person, there doesn’t even have to be
evidence given orally, there doesn’t even have to be evidence given by sworn
statement. The tribunal has the power to choose that it will determine a claim
on the basis of unsworn statements. That’s what the bill says. Those are the
government’s studied amendments to this legislation? I indicated in committee
that if I had voted for any of those, I would have felt compelled to report
myself to the law society. I’m serious. If I had voted for any of those
amendments, I would have reported myself to the law society. I would have
insisted that they discipline me in one way or another.
I’ve told you about how the tribunal’s search powers in the course of its
investigations don’t provide for search warrants at all. The tribunal is invited
to enter the fray by performing in an inquisitorial manner. It can conduct an
examination in chief or cross examination of witnesses. “The rules may be of
general or particular application.” You know what that means? It’s subsection
39(4). The tribunal can create rules that are “one of,” that are tailored for
any given case. In other words, you don’t know what the rules are going to be
when you embark on your complaint or, as a respondent, when you embark on your defence, if you will, to the allegations made against you. This is oh, so
unattractively Soviet in its character and nature. People are being hauled into
or are calling upon someone else to enter into a litigation process when they
won’t even be assured that there’s any forenotice of the rules that will be
applied. This is the sort of stuff that drove Kafka to brilliance, because the
rules can change literally not just day by day, but hour by hour, never mind
case by case. How do we then develop a body of, as lawyers would call it,
jurisprudence around this stuff?
How do we avoid — because, don’t forget, we’re talking about the privatization
of the system. We’re talking about discriminators, people who abuse other
people’s human rights, being able to, well, settle the case — even, should the
tribunal deem it expedient, expeditious, to settle a case with a nondisclosure
clause. We know how notorious those have become in terms of the debate around them and whether or not they serve any valid public interest.
Is this an invitation? Is this a wide-open door for rich Human Rights Code
violators, for wealthy ones, be they employers, be they landlords, what have
you, to violate human rights helter-skelter as long as they can pick off, buy
off, pay out — so-called “compensate” — victims of discrimination one at a
time, one after the other? I say to you it is, and it’s very dangerous turf for
us to embark upon. It is the antithesis of what the model and structure has been
from its very beginning. It is the absolute antithesis. It is not only not in
the public interest; if it’s not in the public interest, it can’t be in the
individual interest either. It doesn’t serve our ultimate goal, which has to be
to design a human rights enforcement system that has as its final, ultimate goal
the eradication of human rights abuses, of discrimination, of violations of this
code here in our province and beyond.
This is serious stuff. We witness escalating levels and rates and frequencies of
discrimination in any number of areas. I tell you, Ontarians with disabilities
who counted upon this government to maintain the Human Rights Commission, as it promised, when they supported this government’s Ontarians with Disabilities Act are not just shocked and horrified; they’re afraid, because an ODA without an effective commission is nothing more than literally mere paper, like this. That’s it; nothing more than that.
Tell me, friends, how this indicates on the part of this government any sincere
commitment to fighting racism. The government buries an anti-racism secretariat in the skeleton, in the shell of the commission it maintains: no independent minister, be he or she with or without portfolio; no independent budget. Indeed, on behalf of concerned people, Ms. Elliott and I moved amendment after amendment that would have given the anti-racism secretariat its own budget and a capacity to function in its own right, hopefully with the specialization and expertise developed by virtue of being an anti-racism secretariat, to deal with racism in every facet, including the prosecution of racist discrimination. The government has defeated that amendment. It did the same with the disabilities secretariat. The government defeated that amendment. Make note that there’s no appeal on these decisions as a result of this government’s bill.
The government’s spokespeople were rather dismissive of those courts that had
acted as appellate courts in the current regime, in the current system. I say
that the government was being less than forthright, because there’s a litany of
cases cited where the courts of this province and this country have taken good
tribunal decisions and given them the strength of law.
This government says it’s going to shorten the waiting time. Well, by
eliminating the section 34 function, this government is going to expand the
waiting time. This government will create a two-tier system of human rights
enforcement for those with the money, those with the pocketbooks, those with
bank accounts, those with the Mercedes-Benz S600s. Oh, isn’t that ironic? They
will be able to buy their way to the front of the line with high-priced lawyers.
A support system? What, like the Office of the Worker Adviser, Mr. Attorney
General, who have their own waiting list of two and two and a half years before
you can even get an appointment because your government won’t fund them? Like legal aid clinics that have had to limit the scope of their practice because you won’t fund them? Like legal aid certificate programs where women who are victims of violence in their homes and whose lives are at risk because of that domestic violence can’t get family lawyers to represent them on a legal aid certificate because you capped the number of hours, and a competent lawyer knows he or she can’t perform the job that has to be done for those women with that limited number of hours? Is that what you have in mind?
People on this side of this chamber care just far too much about the future of
human rights enforcement in this province to permit you to simply say, “Oh,
we’re tired of the debate.” “We’re bored,” the Attorney General says. “We’re
bored; we’ve heard it all before.” Yet in fact, if it weren’t for the Brückmann
evidence, the evidence of Elisabeth Brückmann given on November 22, 2006, we
would not have been advised of the outright fraud that was perpetrated on
committee members by presenters who purported to act for human rights
complainants but who were revealed to be so far removed from human rights
advocacy activity in this province as to merely, on a good day, imagine
themselves in that role.
New Democrats don’t support this legislation. It’s wrong, it’s bad, it’s
The Acting Speaker: Pursuant to the order of the House dated November 21, 2006, I am now required to put the question.
Mr. Bryant has moved third reading of Bill 107, An Act to amend the Human Rights
Is it the pleasure of the House that the motion carry?
All those in favour of the motion will please say “aye.”
All those opposed will please say “nay.”
In my opinion, the ayes have it.
Call in the members. This will be a 10-minute bell.
I wish to inform the House that I have received a deferral notice from the
representative of the government whip:
“Pursuant to standing order 28(h), I request that the vote on the motion by
Minister Bryant for the third reading of Bill 107, An Act to amend the Human
Rights Code, be deferred until tomorrow at the time of deferred votes.”
It being close to 6 of the clock, this House stands adjourned until later on
this evening at 6:45 p.m.