AODA Alliance
MAKING SURE THE NEW HUMAN RIGHTS TRIBUNAL IS FAIR, ACCESSIBLE AND LIVES UP TO THE GOVERNMENT’S COMMITMENTS – A DISCUSSION PAPER ON OPTIONS FOR
THE ONTARIO HUMAN RIGHTS TRIBUNAL’S IMPLEMENTATION OF BILL 107
March 22, 2007
INTRODUCTION
In December, 2006, the Ontario Legislature passed Bill 107. That bill gives the
Human Rights Tribunal dramatic new powers and responsibilities in receiving,
mediating, investigating and hearing, and deciding human rights cases in
Ontario. The bill requires the Tribunal to hold a public consultation on what it
should include in the new Rules of Procedure that it will write for handling
human rights cases.
This Discussion Paper sets out some constructive ideas on how the Tribunal
should conduct this public consultation, and on what the Tribunal’s new Rules of
Procedure and its practice in human rights cases should include. These ideas are
all based on and faithful to the positions which the AODA Alliance included in
its brief to the Ontario Legislature on Bill 107, submitted last year, and
available at:
We circulate these constructive ideas to help get discussion going. The AODA
Alliance welcomes everyone’s input before it finalizes its position on these
issues. Please circulate this Discussion Paper widely. Encourage everyone to
give us their feedback, and of course, to take part in the Human Rights
Tribunal’s public consultation on Bill 107’s implementation. Send your feedback
to: aodafeedback@rogers.com
Under Bill 107 (which the Government says it won’t proclaim in force for up to
18 months), the human rights enforcement system would dramatically change. Until now, a discrimination victim would file their human rights complaint with the Human Rights Commission. The Human Rights Commission was required to investigate the case, and to try to negotiate a settlement of the case where possible. When the Commission had cases that it investigated and couldn’t settle, and that appeared to have merit, the Commission could publicly prosecute the case before the Human rights Tribunal. The Human Rights Tribunal was the “judge” that heard and decided the case. Very few cases got to the Tribunal.
Under Bill 107, discrimination victims would file their human rights complaint
with the Tribunal, not the Human Rights Commission. The Tribunal would be
responsible for intake of all cases, for trying to mediate settlements, and for
holding hearings in all cases that don’t settle. The Human Rights Commission can
launch its own public interest cases before the Tribunal, and can seek to
intervene in cases that others bring before the Tribunal.
This discussion paper looks at two issues:
1. How should the Ontario Human Rights Tribunal consult the public on its
implementation of Bill 107?
2. What should the Tribunal’s new Rules of Procedure and its other practices
include for its work under Bill 107?
THE TRIBUNAL’S UPCOMING PUBLIC CONSULTATION PROCESS
(i) The Need for the Tribunal’s Public Consultation to be Open, Accessible and
Inclusive
It is very important that the Human Rights Tribunal hold a full, inclusive,
accessible, province-wide public consultation on Bill 107’s implementation. This
is because:
* Bill 107 massively transforms and expands the Tribunal’s role. Under Bill 107
the Tribunal would have the most important role to play in the new human rights enforcement system.
* During public debates over Bill 107 last year, commitments were made that the
Tribunal would undertake a public consultation, especially before taking any
action that would override fair hearing rights guaranteed for decades in the
Statutory Powers Procedure Act (SPPA). (The SPPA is discussed further below.)
* Section 39(7) of Bill 107 requires the Tribunal to hold public consultations
before it can make any new Rules of Procedure.
* Many, including many from disadvantaged equality-seeking communities, are
skeptical about Government pledges of consultation on Bill 107’s implementation. The Ontario Government didn’t hold open, inclusive public consultations before announcing its plans for reforming the human rights system on February 20, 2006. It later promised that the Legislature would hold public hearings on Bill 107, at which all could present their views. Then, on November 21, 2006 the Government passed a “closure motion” that cancelled further public hearings that had been promised, advertised and scheduled. Many were denied an opportunity to present at those hearings. The Government principally adopted amendments to Bill 107 proposed by the Bill’s few supporters and rejected most proposed by those concerned about the bill. Amendments that were rejected included ones that would constrain the Tribunal’s dramatic new powers. This all cast a major cloud over Bill 107.
(ii) What Steps Would Ensure an Open and Inclusive Consultation Process?
* The public consultations should be open to all members of the public, not just
lawyers. It must include those from disadvantaged groups protected by the Human Rights Code, and all other affected and interested groups, such as Human Rights Commission staff (who have unique knowledge about the front line work in enforcing human rights).
* The consultations should be open to all who wish to take part. They should not
be “invitation-only.”
* The public consultations should be widely publicized and advertised well in
advance in a wide range of languages and media, and in accessible formats, to
ensure that as broad an audience will learn about the opportunity to take part
in them.
* Opportunities to file written submissions alone are not enough. Among any
other avenues for gathering public input, the Tribunal should hold open public
consultation sessions around Ontario, and not just in Toronto. They should be
public, and not behind closed doors.
* The consultation should not be limited to the content of the Tribunal Rules of
Procedure (on which the Tribunal is required by Bill 107 to consult). The
Tribunal should consult on all aspects of the Tribunal’s implementation of Bill
107, whether to be spelled out in the formal rules or not. This is not just a
consultation on minor technical details like whether parties should have seven
days or ten days to file some document with the Tribunal. Bill 107 would have
the Tribunal assume the central role in processing all human rights cases from
beginning to end.
* Before consulting with the public, the Tribunal should circulate an options
paper that explains in plain language to the public (including those not
familiar with Bill 107’s technical details) the issues on which the Tribunal is
consulting, and some of the options that are open to the Tribunal on each issue.
The options paper should serve as a guide. The consultations should not be
limited to the issues or options in the options paper.
* Individuals and organizations should be given sufficient time to develop their
input to the Tribunal, including input on any options paper. The Tribunal should
be aware of the time needed by community organizations to obtain feedback from their membership and communities before formulating their input to the Tribunal. There is enough time for the tribunal and the other major institutions in the Ontario human rights enforcement system to do this. This is Because according to media reports, the Government may take up to 18 months before proclaiming this bill in force.
* It is far better if the Human Rights Tribunal, the Human Rights Commission and
the Ontario Government hold simultaneous public consultation sessions on Bill
107’s implementation at the same place and time. This would let interested
individuals and groups go to one place and give their feedback to each of the
key public institutions that will be implementing this bill. If the Human Rights
Legal Support Centre is up and running in time, it too can receive public input
at these joint public consultation sessions.
* After getting input from the public and before enacting its rules, the
Tribunal should make public a report of the results of the consultation,
including the feedback it received. It should also publish Draft Rules for
public input before finalizing the rules. It should then give the public a
chance to give written feedback on its draft rules before finalizing the rules.
PRELIMINARY PROPOSALS ON THE CONTENTS OF THE HUMAN RIGHTS TRIBUNAL’S NEW RULES
AND PRACTICES
To help get discussion going, we offer for consideration some general
suggestions.
(i) Fundamental Principles
The Tribunal’s rules and practices should:
* fulfill commitments that the Government made on what Bill 107 would achieve;
* ensure the Tribunal’s accessibility, transparency and accountability;
* facilitate access to effective remedies for victims of discrimination,
including minimizing delays for the complainant caused by respondents;
* address the inherent power and resource imbalances between discrimination
victims and those they complain against;
* preserve the full rights of those appearing at the Tribunal to fair procedures
at all times. Speed and efficiency cannot be achieved by sacrificing the right
to have hearings that are fair. This is particularly important since the
Tribunal’s case load is going to rapidly balloon.
(ii) Government Commitments
Among the Ontario Government’s commitments on what Bill 107 would achieve are the following:
* Under Bill 107, all human rights complainants will get a hearing before the
Human Rights Tribunal within one year of filing their complaint.
* Under Bill 107, the Government will assure to every human rights complainant a free, independent legal counsel during proceedings at the Human Rights Tribunal;
* Under Bill 107, the Human Rights Commission will have its resources “freed up”
so it can devote those resources to actively pursue public interest cases before
the Human Rights Tribunal that it launches itself.
* Under Bill 107, the Human Rights Commission will have the right to intervene
in any case before the Human Rights Tribunal that an individual launches.
(iii) Accessibility and Transparency
* The Government promised that under Bill 107, every complainant will have free independent legal counsel at Tribunal proceedings. To fulfill this commitment, where a complainant has not been able to arrange legal representation, the Tribunal rules should give the Tribunal the power and the duty to appoint counsel to represent the complainant e.g. the Human Rights Legal Support Centre.
* The Tribunal rules should entrench a right to a Tribunal-ordered investigation
of a complaint on request of the complainant, particularly where the complainant is not represented by counsel, or where a complainant who is represented by counsel cannot obtain all information needed via the Tribunal’s disclosure requirements.
* The Tribunal rules should mandate that a case will be heard on the merits
within no more than one year of filing of a complaint, unless the complainant
waives this requirement.
* All pre-hearing procedural motions that do not address the merits of the case
should be dealt with in writing unless a party can show a need for an oral
hearing. This should not apply to any motion that would finally dispose of or
decide a case.
* Where there will be oral submissions on a procedural motion, the Tribunal
rules should set fixed time limits for oral arguments on any procedural motions
e.g. 30 minutes per side.
* Bill 107 gives the Tribunal sweeping power to defer the hearing of a case. The
rules should strictly limit this power. For example, the rules should set out a
very strong presumption against deferring a case. The rules should provide that
except in very exceptional circumstances, a deferral order should not be able to
defer a case for a more than six months. The rules should set out strict, tough
criteria which a party must meet to get an order deferring a case. The Tribunal
should be required to very promptly decide the motion, and to promptly give
reasons if it decides to defer a case. The process for seeking a deferral order
should not become self-fulfilling i.e. creating a deferral by injecting a
procedural delay while the deferral request is fought over.
* There has been a major concern with the Tribunal at times taking far too long
to decide cases. The Tribunal’s members don’t necessarily obey the requirement
in s. 41(7) of the existing Ontario Human Rights Code that once a hearing is
completed, a decision must be issued within 30 days. This threatens to become a
much bigger problem as the Tribunal caseload expands over 25 times under Bill
107. It is therefore necessary for the Tribunal’s rules to ensure that decisions
will in fact be rendered in a timely fashion. They should create a fast,
effective mechanism for a party to take effective action to enforce this if the
Tribunal delays issuing a decision. A discrimination victim should not be forced
to shoulder the costs and delays of going to court to seek an order to force the
Tribunal to render a decision. For example, a Tribunal member should not be
assigned to any new cases if he or she has a decision to issue that is beyond
the required deadline.
* In order to ensure the protection of the public interest, the rules should
provide that the Human Rights Commission has the right to intervene in any case
before the Tribunal at any stage of the proceedings. Where the Human Rights
Commission intervenes, it should have the full right to call evidence, to
cross-examine witnesses, to make oral arguments, and to propose any remedy,
without being limited by the position taken by the complainant. The Commission
should also be entitled to take part in any settlement discussions or mediation
at the Tribunal in any case an individual launches, and should have the right to
intervene in that part of the proceedings.
* The Tribunal should proactively monitor and enforce its decisions and any
settlements reached between the parties.
* The Tribunal and its procedures and operations need to be fully barrier-free
to all equality-seeking groups. This is not limited to the content of the
tribunal’s formal Rules of Procedure. The Tribunal should undertake a full
barrier-audit with input from affected equality-seeking groups. The results of
this barrier audit should be made public. Before any rules of procedure are
finalized, they should be verified to ensure that they do not perpetuate any
existing barriers at the Tribunal or create any new ones.
* The Tribunal should develop from the audit and make public an accessibility
plan every year. The accessibility plan will comprehensively identify barriers
to access to the human rights enforcement system impeding Code-protected groups, such as persons with disabilities and racial and religious minorities, and shall specify the steps to be taken to remove and prevent such barriers, the time
lines within which those steps shall be completed, and the progress made in the
past year towards the identification, removal and prevention of those barriers.
(iv) Fairness and Natural Justice
* At present, the Human Rights Tribunal has been required to obey all the
requirements for a fair hearing that are set out in the SPPA. That law gives the
Tribunal a great deal of flexibility, and lets it hold a hearing that is not as
formal and technical as a court. Yet Human Rights Tribunal hearings have become far too formalistic and technical. Reform is needed, but not at the price of fairness at the hearings.
* Bill 107 gives the Tribunal power to make rules of procedure that override the
SPPA, so long as the rules remain fair. This appears to be contradictory. The
SPPA is designed to make sure the hearings are fair. Until and unless the
Tribunal makes rules that override the SPPA, Bill 107 provides that the SPPA
continues to govern hearings before the Human Rights Tribunal.
* It is objectionable for Human Rights Tribunal hearings not to live up to the
SPPA’s fairness guarantees. The Tribunal should make no rules that violate the
SPPA.
* If, despite this, the Tribunal contemplates making any rule of procedure that
may override the SPPA, it should go very slowly and cautiously. Before making
any rule that would override the SPPA, the Tribunal should first explain to the
public why it proposes to override a fair hearing right guaranteed by the SPPA.
It should then get public input on that specific topic. The SPPA fair hearing
rights should not be overridden absent a clear public consensus. Any such rule
should have a “sunset” clause providing that that rule expires in three years
unless the Tribunal renews it after a further public consultation.
* No rules should be made that take away the right to a hearing. The rules
should not take away or limit a party’s power to decide how to prove its case,
so long as its evidence is relevant and not unduly repetitious. The Tribunal
should not take over the role of calling witnesses to testify – a role that
belongs to the parties to the hearings.
* The rules should give a discrimination victim and the Human Rights Commission a broad right to be able to call evidence, including expert evidence, to inform the Tribunal about the circumstances of discrimination and inequality facing equality-seeking groups in issue in the case. It should not be assumed that just because someone is appointed to the Tribunal, that person has extensive
expertise in the inequalities facing all equality-seeking communities that the
Human Rights Code protects. The rules should carefully guard against a Tribunal
member deciding that he or she doesn’t need to hear such evidence because they
already know what they need to know.
* During the 2006 public debates on Bill 107, there were suggestions that the
Tribunal may adopt different kinds of hearings for different kinds of cases.
Little detailed was shared with the public at that time. Early in the Tribunal’s
public consultation, it should explain what it is considering. If this is to be
adopted, the Tribunal should specify what kinds of hearings are available, the
criteria for deciding which kind of hearing a case will get, and who and how
this decision will be reached. It should give the parties a fair opportunity to
make submissions on the kind of hearing that a case will receive.
* The Tribunal’s rules should be strengthened to sufficiently ensure that a
respondent makes timely production of all relevant documents. The rules should
impose strict, strong penalties against a respondent who doesn’t make timely
production of all relevant documents. For example, the Tribunal should either
deem the respondent to not contest any issue on which a document has been
withheld, or should be required to draw a strong adverse inference against the
respondent on that issue, especially absent a clear showing that the respondent
had been very diligent in searching for relevant documents. It is not enough for
the Tribunal to refuse to allow a party to rely on a document that was not
disclosed in a timely fashion. This gives the party no incentive to make timely
production of documents that hurts the party’s case.
MISCELLANEOUS ISSUES
* The Tribunal’s new rules should not apply to complainants already in the
current human rights system. They should only apply to cases that are launched
after Bill 107 is proclaimed in force.
* The Tribunal Chair should ensure through his or her involvement in the
appointment process that Tribunal members in addition to possessing a background and expertise in human rights in general, must also have expertise and experience in equality rights such as with respect to anti-racism and
disability, and must also be representative of the diversity of Ontario’s
population.
* The Tribunal should collect data on all complaints filed at the Tribunal in
particular on the number of complaints dismissed, whether pre-hearing or on the merits after a hearing, and disaggregated on the grounds upon which these
complaints were made.