ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE METRO TORONTO CHINESE AND SOUTHEAST ASIAN LEGAL CLINIC
July 2, 2008
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Presenters: Avvy Go, David Lepofsky and Prof. Lorne Foster
Good Morning. My name is Avvy Go. I am the Clinic Director of the Metro Toronto Chinese & Southeast Asian Legal Clinic. On my right is David Lepofsky. He is the Human Rights Reform Representative of the Accessibility For Ontarians with Disabilities Act Alliance. On my left is Professor Lorne Foster, a Professor at York University’s School of Public Policy and Administration with a strong background in human rights and social justice studies.
Forty-eight hours ago, the McGuinty Government privatized enforcement of human rights in Ontario. For almost a half century, it was the role of the Government in this province to publicly investigate and prosecute those who illegally discriminate, contrary to the Ontario Human Rights Code. This was done through the Ontario Human Rights Commission.
The McGuinty Government’s controversial Bill 107, passed on December 2006, which went into effect this past Monday in the middle of a holiday weekend, changed all that. As of this past Monday, , victims of discrimination can no longer go to the Human Rights Commission to publicly investigate and prosecute their complaints. Instead, they must investigate and prosecute their own cases and enforce their own rights without the case being spearheaded by a publicly funded law-enforcement agency. Bill 107 privatized the enforcement of human rights in Ontario.
Was the back-logged, under-funded human rights system great before June 30, 2008? Definitely not. Was change needed? Definitely. But there was a huge debate in 2006 on which change would make things better and which would make things worse. Regrettably, the Government shut down that debate right in the middle with a closure motion. The result is Bill 107.
The large majority of the people who file human rights complaints every year are people with disabilities and people from racialized communities. At least as much as anyone else, they needed reform to Ontario’s human rights system.
Two days ago, the McGuinty Government held its ribbon-cutting festivities. Now we offer you a different, non-government community perspective. Today, we take a sober look at what Ontarians were promised, what they should demand, and what they might expect. We ask tough questions about whether the Government can deliver on its promises.
We come not with Government-crafted news kits, but with internal government documents, obtained under the Freedom of Information Act, that we reveal to the public today. We bring copies of the internal government staffing charts for the Human Rights Commission, the Human Rights Tribunal and the Human Rights Legal Support Centre. We also have for you a list of key quotations on what the Government has committed to Ontarians, and some statements made by public officials that give us pause about whether they will be keeping all those commitments.
Our number one goal is a human rights system that really works for all victims of discrimination. We want this new system to work. However, we’re concerned that what will end up happening is that all discrimination victims aren’t going to be assured the level of support they need and were promised, when they go up against government agencies and big private companies with deep pockets and lawyers on retainer. We’re really worried that for many discrimination victims, the new system will be too hard to navigate on their own. We fear their cases just won’t get filed or will get abandoned. The current backlog will just be shuffled down the hall from the historically-under-funded Human Rights Commission to the even-more under-funded Human Rights Legal Support Centre that will fill its main role. Even worse, we fear that the current back log could well be replaced by a group of silent victims of discrimination who won’t have the support they need and will be left with even less justice than under the old system.
Mr. Lepofsky will speak about the legal support discrimination victims need, what support they’ve been promised and what support they are likely to get.
A discrimination victim cannot take on a government or private company at a hearing at the Human Rights Tribunal, unless the discrimination victim has a lawyer. Believe me, I know. I’ve twice taken on a big government agency, the TTC, and I am a lawyer.
Most organizations accused of discrimination get a lawyer to defend them. If the discrimination victim isn’t represented, it’s simply not a fair fight. That was not only the view of Bill 107’s many critics. It was also the view of many of its supporters.
The McGuinty Government said Bill 107 implemented two major reports on how to fix the human rights system, one written by Mary Cornish and one by former Supreme Court justice La Forest. Both those reports emphasized that a discrimination victim must have representation at a human rights hearing. You can see what they said about this on our list of Government commitments.
The need for a lawyer is greater under this new system now than ever before. The Human Rights Tribunal has set up a new set of complicated rules. No unrepresented lay person could navigate those rules without serious risk. The Tribunal has a new, longer, more detailed application form than in the past. It is not safely completed without a lawyer. We warned the Tribunal that their new rules would make it harder than ever for an unrepresented person to get in the front door. Regrettably the Tribunal rejected our plea and our key recommendations to correct that.
Under the old system, if a case got to the Human Rights Tribunal, the Human Rights Commission sent a lawyer to act as a public prosecutor, with carriage of the case. Bill 107 takes that leading role away from the Human Rights Commission.
The McGuinty Government promised that under Bill 107, each discrimination victim would get free publicly-funded independent legal counsel throughout the proceedings at the Human Rights Tribunal. What’s going to happen under the new system? The Government has set up a new organization, the Human Rights Legal Support Centre, to provide legal services to discrimination victims. Its new board chair is Raj Anand. Its executive director is Kathy Laird. Both were leading proponents of Bill 107. Before Bill 107 was passed, each spoke about the need for all discrimination victims to be represented.
At a June 13, 2008 Community Living Ontario panel on Bill 107 that I took part in, Ms. Laird went further. She committed that the Human Rights Legal Support Centre would investigate the cases where they represent discrimination victims, and would pay for the cost of expert witnesses where they represent a discrimination victim. Ms. Laird also committed that the Human Rights Legal Support Centre will meet with every person who comes to ask that Centre to represent them. You can download that entire panel discussion that I took part in, and listen to it at www.www.aodaalliance.org
We want to hold the Government to these pledges. We publicly urge everyone who may have a discrimination case to call the Human Rights Legal Support Centre. Ask for the free independent legal counsel the Government promised. Ask them to meet. Ask them to investigate your case. Ask them to pay for any expert witnesses your case may need. We’ve set up an email address so people can let us know if they got the free lawyer, the free investigation and the coverage of their expert witness fees that we’ve been promised. They can write us at: email@example.com
We want to alert you that there are reasons to question whether the Government is now able to keep these major commitments. Here’s what we know.
First, the Human Rights Legal Support Centre has much less than half the budget that the Ontario Human Rights Commission used to get. It isn’t possible to do a better job than did the backlogged Human Rights Commission, with far, far less money.
Second, there are over 4,000 discrimination cases at the Human Rights Commission in the backlog. As of last Monday, they have the right to jump to the new system. The decision to stay in the old system for the next 6 months, or jump to the new one, is a tricky, risky, complicated one. Complainants will desperately need independent legal advice. That’s legal advice that the Human Rights Commission cannot give private parties. The Human Rights Legal Support Centre’s website says flat out that it won’t give legal advice to these people on whether to switch to the new system now. On that one, they have to find their own lawyer. To them, the Ontario Government is breaking their word.
What about the other 3,000 people that are projected to come forward with new actual human rights cases per year, plus the tens of thousands that the Human Rights Commission annually it gets calls from? We’ve been asking for months, and in fact for years, what level of staffing there will be to serve them. For the longest time, no one had any answers.
This past April, right after the McGuinty Government issued a media release announcing how much money it was injecting into this system to clear the backlog, we found out that organizational charts were released to the staff of the Human Rights Commission. These are official internal government records showing how many staff there would be at the Human Rights Legal Support Centre, the Human Rights Tribunal and the Human Rights Commission. I had to resort to a Freedom of Information application to get them. We are releasing these to the public here. These are the inside story of what the Government was saying to those now working in the system. They were evidently delivered just a couple of weeks after this spring’s Ontario Budget. This was also just about a day or so after the McGuinty Government leaked to the Toronto Star a good news announcement about how generously they are going to fund the human rights system to clear the backlog and get this new system up and running.
These internal government documents show that the Human Rights Legal Support Centre will have a mere nine lawyer positions to advise and represent the estimated 3,000 or more people per year who file discrimination cases, and the tens of thousands more who annually come forward to seek legal advice. Remember Kathy Laird said they’d meet with every one of them. Even if every lawyer there argued two hearings per week, which leaves no real time to prepare for them, they’d still leave hundreds of cases with no lawyer.
But the numbers of lawyers gets murky. At the June 13 Community Living Ontario panel, Human Rights Legal Support centre executive director Kathy Laird told the audience the Human Rights Legal Support Centre would have fully 19 lawyers. She argued that this is more than the Human Rights Commission ever had. When I pressed her, it turns out that the Human Rights Legal Support Centre only has 9 legal counsel positions. It also has 12 spots for another kind of position. On the Organization Chart, they are called “legal support workers”. Ms. Laird used another name for them.
Either way, it turns out the Legal Support Centre was offering some of those jobs to lawyers. So underpaid lawyers are apparently being hired to fill non-legal-counsel positions. They evidently aren’t paid as lawyers. Yet the Legal Support Centre‘s executive director publicly calls them lawyers. We are not clear if they will be appearing at the Tribunal as legal counsel, or as non-lawyers. It is not clear if they will be providing legal advice (that only lawyers can do. It is not clear if the Law Society and Legal Support Centre will be holding them to the professional standards of lawyers or of non-lawyer para-legals).
Even with Ms. Laird’s numbers at their highest, there are still not enough lawyers at the Human Rights Legal Support Centre to keep the Government’s commitment. If there is any doubt about this, the Human Rights Tribunal has laid it to rest. The Human Rights Tribunal is planning, expecting and anticipating that some people will come to that Tribunal unrepresented. If the Tribunal knows that some complainants will come without legal representation, then the public should be concerned that the Government isn’t keeping its word.
Also, we know that the Government has anticipated for many months that the Human Rights Legal Support Centre will only give lawyers to some claimants. It will turn others away. It will give some claimants advice and let them go to the Human Rights Tribunal on their own. We know this because the Government hired a transition director, Ms. Helena Birt, to set up that Legal Support Centre. She told us this at a private meeting last fall and at a public forum on Bill 107, held in Toronto on November 16, 2007. Visit: http://www.www.aodaalliance.org/ontario-human-rights/mcguinty-governments-fall-2007-toronto-public-meeting-on-human-rights-reform-reveals-serious-problems-with-bill-107s-implementation/
I know what kind of resources can be marshaled against you at a human rights case. I won two hard-fought cases against TTC, one to get them to announce all subway stops and a second to get them to announce all bus stops. I used a Freedom of Information application to discover that between these two cases, TTC spent a full $450,000 on lawyers to fight me. Not every case will be defended by that kind of war chest, but many will. Try taking on the Ontario Government, or a city or board of education or a large company.
In section 45.6 of Bill 107 itself, the Government committed that legal services will be available to discrimination victims across the province. Is that happening? From what we’ve heard so far, the Human Rights Legal Support Centre will only have an office and staff in Toronto. It has talked since last year in general terms about being able to work out partnerships legal clinics or private lawyers on an ad hoc basis outside Toronto. That doesn’t give discrimination victims access to the specialized expertise you get when you consult an expert lawyer who only does human rights work.
We still haven’t seen any specifics on how these services outside Toronto will be delivered. How many lawyers will be funded outside Toronto? How many clients will be supported outside Toronto?
The Government promised that the services of the Human rights legal Support Centre would be open to all clients, regardless of their income. We don’t know how or if this will work in practice, because we don’t know how the Human Rights Legal Support centre, working behind closed doors, is going to choose which cases to take. However, at the June 13 Community living panel, Ms. Kathy Laird gave a bit of an insight that could raise concerns. She said the Centre will aim to represent those who are least able to represent themselves. This raises the real possibility of making income level a criterion for access to their services, contrary to what the McGuinty committed. We of course recognize the vulnerability of the poor. However, the Government made a specific commitment and should be held to it.
If you go to the Human Rights Legal Support Centre, and they turn you away, will they give you written reasons? I asked Kathy Laird at the June 13 panel. She wasn’t prepared to give any commitment that they would. We also don’t know what procedure the Legal Support centre will use for deciding which cases it will take and which it will not.
Is the Human Rights Legal Support centre going to be able to keep its commitment that it will investigate the cases it represents? Look at the organization chart. There is no position for investigator. Not one. The Human Rights Commission will be laying off most of theirs. Lawyers and legal support workers won’t have time to investigate if they are trying to actually represent the 3,000 cases per year before the Tribunal, and advising the tens of thousands who will be phoning in to see if they should file a case.
When the Government was promoting Bill 107, it committed that under it, every discrimination claimant would be entitled to a hearing on their case before the Human Rights Tribunal. That’s also what Bill 107’s promoters said. Bill 107 says the Tribunal has to give you a hearing, except of course if the Tribunal dismisses your case without a hearing, or defers it indefinitely.
How many hearings will the Human Rights Legal Support Centre be able to handle in a year? I asked Kathy Laird at the June 13, 2008 panel. She said she couldn’t say. Of course some discrimination claimants may negotiate settlements, and that can be very good. However, it was the Government and people like Ms. Laird who criticized the old system because so few cases got hearings instead of getting settlements or being turned away. They spoke of the need for everyone to be able to have a hearing on their case at the Tribunal. To know how this system will work, or if it will work, it is important to know if they can deliver a hearing for each complainant as was promised within one year, and a lawyer to represent each complainant to make that hearing manageable for the discrimination victim.
As I said, those most likely to file human rights complaints are people with disabilities and people from racialized communities. They made up about 80% of complaints the Human Rights Commission annually received. These two communities are also among Ontario’s poorest. They are least able to hire their own lawyers. They will be relying on the Human Rights Legal Support Centre.
From my experience representing discrimination victims, taking on a human rights case requires tremendous resources, especially when there are systemic issues. In reality, every race based complaint has systemic issues. In some cases under the old system, we needed to hire expert witnesses to bolster our client’s case. Without the Commission’s involvement, we cannot afford to pay for expert witnesses. In addition to these factors, is the fact that many people with disabilities and people from racialized communities will require accommodation in accessing legal services such as sign language and second language interpretation services. All these mean adequate resources, which the new Human Rights Legal Support Centre does not seem to have, and the Human Rights Commission was never given.
How many people who are unlawfully discriminated against will be turned away when they knock on the door of the Human Rights Legal Support Centre? In effect, the Human Rights Legal Support Centre will replace the Human Rights Commission as the new gatekeeper. Discrimination victims who are turned down for services by the Centre, especially those from the most marginalized among us, will have no resources to fight discrimination on their own.
Professor Foster will now look at what’s been promised regarding the Human Rights Commission.
Prof. Lorne Foster:
The Government made important commitments about the Human Rights Commission under Bill 107. They said that under Bill 107, the Human Rights Commission would be strengthened, not weakened. The McGuinty Government said the Commission would be freed up to devote its resources to bringing forward public interest cases, without having to direct its resources to handling individuals’ discrimination cases.
What is happening in reality? We’ve learned from the new Human Rights Commission organization chart, which we are making public today, that The Human Rights Commission’s resources are not being freed up to re-direct to investigating and litigation public interest cases. Much if not most of those resources are being taken away from the Human Rights Commission. We predicted this two years ago. The Commission is being shrunk down from its high point of around 200 staff to only under 60 positions in the new world of Bill 107. It will be a shadow of its former self.
How effective will this gutted Human Rights Commission be at investigating public interest cases? You cannot litigate them without a good investigation? Under this new Organization Chart, we’ve learned that the Human Rights Commission will have a grant total of three investigators for the entire province of Ontario. Most of their current investigation staff will be gone from that role.
This is hollow symbolism. I have argued in the past that is amounts to a policy of erosion not inclusion. It is an incremental degradation of benefits and services that have taken forty years to build up. Using the term “progress” to define a restriction of public services is misleading and potentially harmful in a diverse society.
The Government and Bill 107’s major proponents argued that one major problem with the old system was that there was a gate keeper, the Human Rights Commission, that could decide if your case would get a hearing before the Human Rights Tribunal. That was wrong they said. We were told that bill 107 would get rid of this gatekeeper barrier.
What we see in this new system is that the old gate keeper is being replaced by a new gate keeper, namely the Human Rights Legal Support Centre. It is going to decide if you do or do not get a lawyer. For the discrimination victim, whether the Human Rights Commission turns you down, or the new gate keeper the Human Rights Legal Support Centre turns you down, you are for practical purposes out of luck. For the Government to tell someone you can bring your own case without a lawyer is hollow rhetoric, not a meaningful right.
In the sixty years of the formal human rights movement in Ontario the province has changed dramatically in terms of demographic complexity. Ontario has been redrawn along linguist, cultural, ethno-racial and ability lines. We have argued that the McGuinty government needs listen, to have a nuanced understanding of the interests and complexities of Ontario’s diverse communities, if the province is going to develop a coherent set of prescriptions for progressive change to the human rights system.
When the McGuinty Government was making its case to the public about Bill 107 in 2006, one of its big selling points about its sensitivity to diversity, and showing that it really meant business about battling racism and disability discrimination was that it was committing to set up at the Human Rights Commission two new offices, an Anti-Racism Secretariat and a Disability Rights Secretariat. The Government is legally required to set these up, according to sections 31 and 31 of Bill 107. If you look at the Human Rights Commission Organization Chart, you will see no mention of either of these offices. David Lepofsky called the Commission on Monday to ask for them. He was told that they don’t have any. At the time, we thought the promise of those Secretariats was windowdressing, but we stood to be proven wrong. Well, if none are even established, 18 months after the Government legally committed itself to establish them, they don’t even rise to the threshhold of windowdressing. Unless we’re mistaken, the government seems to be disregarding its own law.
Let’s turn to one last important Government promise that Bill 107 affects. The Government’s weakening the Human Rights Commission seriously weakens the new disability access legislation that the disability community fought for for a decade. In the 2003 election, Premier McGuinty promised us a new disability law with effective enforcement. It even promised to expand the Human Rights Commission’s mandate if needed to enforce the new disability law.
After the Liberals won the 2003 election, when the disability community spoke with the Government as the Disabilities Act was being developed, it was very important in those discussions that nothing would weaken or take away rights that persons with disabilities enjoyed under the Human Rights Code.
Many disability groups called for the Disabilities Act to establish a new, independent enforcement agency to enforce removal and prevention of barriers against persons with disabilities, as a supplement to the Human Rights Code and Commission. The Government said we don’t need a new independent agency, because Ontario already has the Human Rights Commission, with all its powers to receive, investigate and prosecute individual human rights complaints.
In 2005, the disability community applauded the final Disabilities Act as a good total seamless package. We did so even though it didn’t include everything the disability community wanted, because it was a good deal. Then months later, along comes the McGuinty Government with Bill 107. Bill 107 ripped out the Human Rights Commission’s main enforcement teeth, stripped most of its investigation staff, and cut its legal department in half.
That undermines the Disabilities Act. After we applauded the Disabilities Act, it’s unfair for the McGuinty Government to turn around and rip out most of the Human Rights Commission’s teeth.
We urge everyone to use this new system. Let’s see if it works, and how it works. We would be delighted to find out our sincere concerns were misplaced. We urge everyone to call the Human Rights Legal Support Centre today to ask for their free lawyer, and to ask that their case be investigated.
We also urge the public and the media to monitor this new system. We sure will be monitoring it. If people don’t get the free lawyer they were promised, the investigation of their case, the hearing within one year, and the meeting with every possible claimant, we want to know.
We don’t defend delays, under the old system or the new. We hope we are wrong, and that the new system works better than we expected. Most important we hope that one and all use the new system, and that the Government keeps its promises. We’ll be watching.