ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE
June 13, 2008
Less than one month before Ontario’s new human rights system goes into operation on June 30, 2008, the Human Rights Tribunal finally released its finalized permanent rules of procedure. These rules dictate how discrimination cases will be handled at the Tribunal beginning June 30, 2008 under Bill 107. You can read the Tribunal’s new rules at:
Bill 107 is the McGuinty Government’s controversial law reforming human rights enforcement in Ontario. It privatizes human rights enforcement. It takes away from the Ontario Human Rights Commission its main job of investigating and publicly prosecuting discrimination cases in Ontario. It requires discrimination victims to investigate and prosecute their own human rights case.
These rules are very similar to the draft rules which the Tribunal minimally circulated for input in February. In late March, the AODA Alliance submitted a detailed brief to the Tribunal. Although the Tribunal refused to convene public forums to get input from the public on its proposed rules, it did invite an AODA Alliance delegation to meet to discuss our concerns.
In our detailed brief, and our meeting with the Tribunal’s leadership, we pointed out numerous serious problems with the Tribunal’s draft rules. We offered a series of specific constructive recommendations for improvements. Several community organizations have told the Tribunal they endorse our brief. You can read our brief at:
You can read a short summary of our concerns in a guest Toronto Star column by David Lepofsky at:
It is now clear that the Human Rights Tribunal rejected most of the AODA Alliance’s recommendations, including all the most important ones, regarding these rules. The Tribunal has set up a very complex and detailed series of rules. These are accompanied by fully 24 different legal forms that you may have to use in human rights cases.
Any discrimination victim who brings a human rights case will need a lawyer to advise and represent them right from the very start of the Tribunal’s new process, to effectively navigate these rules. The Tribunal has provided a plain language guide, but it doesn’t give a reader all the information they need to be able to be their own lawyer. A discrimination victim who doesn’t have a lawyer representing him or her throughout the Tribunal process will be lost at sea, and at a huge disadvantage. This is even more so if they are up against an opponent who has a lawyer, which is often the case.
The rules still contain many troubling and fundamentally unfair features. It will be very important for the new Human Rights Legal Support Centre to vigorously challenge the unfairness of these rules before the Tribunal and in court, when they work unfairness on individual human rights claimants. The McGuinty Government promised that the Human Rights Legal Support Centre would be there to provide the needed legal representation to discrimination victims. Discrimination victims will need support and effective representation by lawyers when they challenge these rules.
In these final rules, the Tribunal did adopt a few of the more marginal or modest of the AODA Alliance’s recommendations. For example:
- the Tribunal accepted our recommendation that if it receives an incomplete human rights application and sends it back to the applicant, it should give an explanation on why it is incomplete.
- The draft rules had given the Tribunal the power to decide a case at a “written hearing.” That is one done in writing, where there’s no chance to speak directly to the Tribunal. This flew in the face of the Government’s promise that under Bill 107, everyone would get a hearing. The final rules addressed this by stating:
3.5 The Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate. However, no Application that is within the jurisdiction of the Tribunal will be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with these Rules.
- The Tribunal is proposing to adopt an Accessibility Policy regarding its work. We will have more to say about that soon. That Accessibility Policy may address some of the accessibility barriers in these rules, to some extent. We won’t know until we see the final version of that policy.
- The Tribunal eliminated an impediment in the draft rules to the Human Rights Commission intervening in individual cases.
One change in the rules might at first seem responsive to our concerns. It turns out to be more cosmetic than real. We were very concerned that under the draft rules, when a discrimination victim files an application with the Tribunal, they would have to list all important documents and witnesses.
It appears that the final rules have eliminated this excessive burden on discrimination victims, who just want to get their foot in the Tribunal’s front door. Yet the Tribunal’s forms still impose on discrimination victims this same duty to list key documents and witnesses. This change makes no practical difference. The only change the Tribunal made here that does make a difference is that the Tribunal eliminated from the rules the requirement that the application form list the “issues” that the claimant wants to advance. The claimant still must list all facts they want to rely on. This is a typical example of where this process is a trap for anyone who doesn’t have a lawyer to prepare the all-important application form.
On the other hand, the Tribunal mainly rejected the following important concerns that we raised:
a) These rules unnecessarily over-formalize and over-judicialize the Tribunal. The Tribunal is supposed to be more informal than the courts. These rules in some cases do the opposite.
b) These rules impose substantial new burdens on discrimination victims from the very start of the Tribunal process. For example, they impose on discrimination victims new burdensome requirements just to get a foot in the Tribunal’s front door. These demand more than do formal court rules for starting a law suit in court, and did the old Human Rights Code’s human rights complaint.
c) These burdens make it very important for discrimination victims to retain a lawyer from the very launching of a human rights application and throughout the Tribunal process. This is a significant, unjustified new barrier to access to justice for discrimination victims. It flies in the face of the Tribunal’s stated commitment to having an open, accessible process for resolving human rights cases.
d) These rules thereby create a new, serious, harmful barrier to access to prompt mediation of human rights cases.
e) The rules let the Tribunal violate the important right of parties to a human rights case to call whatever relevant evidence they wish that isn’t unduly repetitive, to prove their case.
f) The rules unjustifiably give the Tribunal excessive, sweeping power at every step of its process. They don’t set objective, clear criteria to ensure that the Tribunal doesn’t abuse its open-ended power or act arbitrarily. This is especially troubling since Bill 107 significantly reduces the courts’ power to review the Tribunal’s actions.
g) The rules don’t provide sufficient ways for a party to ensure that an opposing party obeys them.
h) The rules don’t adequately ensure that when the Human Rights Commission launches its own case at the Tribunal, the Commission gives equality-seeking groups, potentially interested in the case, timely notice of the Commission’s application. The rules don’t ensure that those equality-seeking groups will get sufficient opportunity to intervene in the case.
i) The rules don’t ensure that wherever possible, the same Tribunal member presides at all stages of a case (apart from mediation). This risks increasing the parties’ expenses. It risks the Tribunal’s inconsistent handling of a case.
You may wonder what the Human Rights Commission thinks of the Tribunal’s proposed rules. The Commission is supposed to be a strong advocate for fairness in the human rights process.
We cannot find out. We regret that Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission, has refused to disclose the Human Rights Commission’s submission to the Human Rights Tribunal on the Tribunal’s proposed rules. AODA Alliance Human Rights Reform Representative David Lepofsky had to file a Freedom of Information Act application to try to get that document from the Human Rights Commission. Chief Commissioner Barbara Hall refused to disclose it.
According to the Commission’s letter to Mr. Lepofsky, the requested document is being kept secret because to reveal this document would reveal advice or recommendations of a public servant, any other person employed in the service of an institution, or a consultant retained by an institution.
Yet the Human Rights Commission has made public a number of its submissions to various government departments and agencies. Disclosing those documents no doubt would reveal advice or recommendations that the Human Rights Commission has received.
The Human Rights Commission should be publicly accountable for its submissions on the Tribunal’s proposed rules. We urge the Human Rights Commission to make their submissions to the Human Rights Tribunal. It would be informative to see if the Tribunal listened to the Human Rights Commission any more than it did to our community and those who supported us, in developing these rules.
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