AODA Alliance
November 6, 2006
SUMMARY
With the Legislature’s public hearings on the controversial bill 107 resuming in
Toronto on November 15, 2006, a major counter-proposal is being made public for reforming Ontario’s under-funded, back-logged human rights system. Below please find this 4-page Blueprint, co-authored by David Lepofsky (the AODA Alliance’s Human Rights Reform Representative), Margaret Parsons (executive director of the African Canadian Legal Clinic) and Avvy Go (clinic director of the Metro Toronto Chinese & Southeast Asian Legal Clinic)
This Blueprint is based on the AODA Alliance’s draft brief on Bill 107. The AODA
Alliance Board has approved that draft brief in principle. It is also based on
the Discussion Paper on Human Rights Reform that the AODA Alliance made public last April, and the feedback received on it. This Blueprint also incorporates key ideas suggested by many of the 28 deponents who opposed bill 107 during the first three days of the public hearings, last summer in Ottawa, Thunder Bay and London.
Unlike the controversial bill 107 which has been widely criticized, this
Blueprint is based on an important bedrock principle: Ontario must have a fully
public system for investigating, prosecuting and enforcing human rights. The
human rights system should not be privatized. In summary this Blueprint
recommends that instead of the current Bill 107, effective human rights reform
should:
-protect discrimination victims’ existing rights that the Human Rights Code now
provides;
-ensure increased funding for both the Human Rights Commission and Tribunal;
-remove legal barriers to filing human rights complaints;
-improve the Human Rights Commission;
-streamline the Human Rights Tribunal;
-ensure the human rights system’s future effectiveness;
-ensure new legal supports for human rights complainants.
We encourage you to:
Endorse this Blueprint for effective reform of Ontario’s Human Rights system.
* Write Premier McGuinty and opposition leaders John Tory (Conservatives) and
Howard Hampton (NDP) to voice your endorsement. Let them know about any
additional ideas for reform you would add to this Blueprint.
* Tell the Legislature’s Standing Committee on Justice Policy if you endorse
this Blueprint, and any additional ideas for reform that you might have.
We will shortly provide further background and other information that will help you give your input to the Government, the opposition parties, and the Legislature’s Standing Committee on Justice Policy. As always, we welcome your feedback at:
A BLUEPRINT FOR EFFECTIVE HUMAN RIGHTS REFORM IN ONTARIO
Proposed by Margaret Parsons, Avvy Go and David Lepofsky
November 6,2006
OBJECTIVES
Effective human rights reform must:
a) ensure and strengthen enforcement of human rights through the public
enforcement process of the public human rights enforcement agency, the Human
Rights Commission;
b) provide a faster, fairer resolution of human rights complaints;
c) increase access by discrimination victims to a hearing before the Human
Rights Tribunal;
d) provide more expeditious, less legalistic and judicialized hearings before
the Human Rights Tribunal; and
e) increase availability of legal supports to discrimination victims who use the
human rights process.
To achieve these objectives, the bill should:
PROTECT EXISTING RIGHTS
1. Retain all aspects of the Human Rights Commission’s existing mandate. Human
Rights complaints will be filed with the Commission. Human Rights Commission
would retain its duty to investigate, and to prosecute where evidence warrants.
Retain the current mandate of the Tribunal, subject only to the following
changes.
ENSURE INCREASED FUNDING FOR THE HUMAN RIGHTS COMMISSION AND TRIBUNAL
2. Provide additional funding for the Human Rights Commission and Tribunal to be able to effectively handle more cases more quickly, ensuring that the new
funding will substantially be directed to the Commission’s capacity to investigate, conciliate and prosecute cases.
REMOVE LEGAL BARRIERS TO FILING COMPLAINTS
3. Extend the Code’s limitation period for filing complaints from six months to
two years.
4. Enable group human rights complaints, and complaints by community groups
regarding Code violations affecting the group in which they are interested.
IMPROVE HUMAN RIGHTS COMMISSION
5. Enact the unproclaimed amendment to the Code that would make it optional, not mandatory, for the Human Rights Commission to try to effect a settlement.
6. Mandate a process for the Human Rights Commission to fast-track complaints
where time is especially of the essence e.g. where a complainant is terminal, or
where a case may become moot if not fast-tracked.
7. Amend s. 34(1) of the Code (power to dismiss a complaint without
investigation) to limit the grounds on which a complaint can be dismissed by the
Human Rights Commission without first investigating or trying to mediate, to
prevent summary dismissal of a case where facts in dispute but there is an
arguable legal basis for the complaint.
8. Empower the Human Rights Commission to set deadlines by which a party must respond to a request for information, after which the Human Rights Commission can proceed in the absence of that information. i.e. to prevent respondents from bogging down the process.
9. Amend ss. 34(1) and 36 of the Code to amalgamate to the extent feasible the
Human Rights Commission’s three decisions on a complaint, so as to prevent a
respondent from delaying a case during a s. 34(1) application to dismiss. For
example, the amendment could give the Human Rights Commission the power to defer considering a s. 34(1) application to dismiss until it considers the case as a
whole under s. 36(1) for referral to the Tribunal for a hearing.
10. Provide that only three Human Rights Commissioners should preside to decide whether to refer a case to the Tribunal, or to dismiss the case as frivolous
etc. (reducing the cost and time needed to get a case decided at this stage of
the process).
11. Provide an exception for the Human Rights Commission’s duty to investigate
the case where the complainant agrees to waive the investigation.
12. Amend s. 36(1) of the Code to reduce the threshold that must be met for the
Human Rights Commission to refer a case to the Tribunal. For example, where the case can’t be settled, and the Human Rights Commission believes that the merits of issue or issues in the case may depend in whole or in part on assessing the credibility and/or reliability of witnesses.
13. Provide that where the Human Rights Commission decides not to refer a case
to the Tribunal, and where the complainant asks the Human Rights Commission to reconsider this decision under s. 37 of the Code, the complainant is entitled to
an in-person oral hearing before three Human Rights Commissioners who will
reconsider the question whether to refer the complaint to the Tribunal. This
amendment should provide that no evidence will be called on such hearings, nor
shall procedural motions be considered. The parties shall have strict time
limits e.g. 30 minutes per side, unless the Human Rights Commissioners exercise
their discretion to extend the time.
14. Add a strong privative clause to insulate from judicial review a decision by
the Human Rights Commission to refer a complaint to the Tribunal, except where
the respondent can show that the Human Rights Commission acted in bad faith.
This privative clause should not apply when the Human Rights Commission decides not to refer a complaint to the Tribunal.
15. Give the Human Rights Commission a clear mandate to monitor and enforce
Tribunal orders.
16. Provide for an external forensic audit of the Human Rights Commission by a
person to be appointed by the Government, for purposes of making its processes
for handling cases fairer and more expeditious, with a report to be made public
within six months.
17. Provide for the appointment of an advisory group to advise the Human Rights
Commission, as proposed in Bill 107’s new s. 31.1
18. Provide for the Human Rights Commission to report directly to the
Legislature.
STREAMLINE HUMAN RIGHTS TRIBUNAL
19. Broaden the Tribunal’s remedy jurisdiction e.g. to remove the case law
requirement that a remedy must flow from and be linked to the “subject matter of the complaint”, but not permitting legal costs or user fees to be ordered
against the complainant.
20. Amend the mandate of the Tribunal to emphasize its duty to adopt procedures that are expeditious without overriding the Statutory Powers Procedure Act, except,
a) Authorizing the Tribunal to require that any issue of procedure or of law or
mixed fact and law that does not finally dispose of the case may be decided
after written submissions in lieu of an oral hearing; and
b) Providing the Tribunal with a clear mandate to impose strict time limits for
any oral submissions.
21. Require the Tribunal to review and revise its rules of practice, after
holding an open, accessible consultation with stakeholders, to provide a less
judicialized, more informal procedure for expeditious hearings, without
overriding the Statutory Powers Procedure Act and the duty of fairness.
ENSURE HUMAN RIGHTS SYSTEM’S FUTURE EFFECTIVENESS
22. Provide for an independent non-partisan process for reviewing nominations
for appointment as a member of the Tribunal, or as an Human Rights Commissioner, with a mandate to give priority to expertise in human rights and discrimination issues.
23. Provide for a review of the Code to be undertaken within three years of
these amendments coming into force, to be conducted by an independent person,
appointed by the Government, with a report to the Legislature to be made public.
The review provisions should be similar to those in the Accessibility for
Ontarians with Disabilities Act 2005.
ENSURE NEW LEGAL SUPPORTS FOR COMPLAINANTS
24. Provide and fund community-based legal supports to advise prospective human rights complainants on whether to file a complaint, assist with drafting
complaints, advise and represent complainants through the Human Rights
Commission process leading to referral of the case to the Tribunal (e.g. in the
investigation process, at Human Rights Commission efforts to mediate and
conciliate the case, and in urging the Human Rights Commission to refer the case
to the Tribunal) and in some cases represent the complainant during Tribunal
proceedings.