May 8, 2008
A guest column by David Lepofsky appears in the May 8, 2008 Toronto Star. It details serious problems with the Ontario Human Rights Tribunal’s proposed new rules for handling discrimination cases after June 30, 2008. See the text of this column below.
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The Toronto Star May 8, 2008
Human rights reforms could trigger unfair proceedings; New tribunal has been given sweeping power to make rules that override legal safeguards
Graphic: PATRICK CORRIGAN TORONTO STAR ;
You probably don’t know Ontario’s Human Rights Tribunal is now considering adopting potentially draconian new rules on how it will handle discrimination claims. This should worry everyone, whether they look through the eyes of a discrimination claimant or through the eyes of a person or organization accused of discrimination.
On June 30, the controversial Bill 107 goes into effect. It privatizes human rights enforcement. For the first time, discrimination victims must take claims directly to the Human Rights Tribunal for a decision.
No longer will the Human Rights Commission first investigate, conciliate, screen and prosecute individual claims.
Weeks before June 30, Premier Dalton McGuinty’s appointees still scratch their heads over details on how this will work.
To cope with an anticipated tenfold-plus caseload increase, McGuinty gave the tribunal sweeping power to make rules that override long-standing legal safeguards – safeguards needed to ensure fair hearings. The tribunal proposes new rules to give itself excessive new powers. These are troubling, whether you support or oppose Bill 107.
Normally at a court or tribunal hearing, the parties choose which witnesses to present to prove their case, as long as evidence is relevant and not unduly repetitive. Violating this, the tribunal proposes rules that will allow it to refuse to hear relevant witnesses a party wants to present to prove their case.
The tribunal is the judge that hears the witnesses and decides who wins. It shouldn’t also be able to decide that a party can’t present all witnesses who are relevant and who the party wants the tribunal to hear.
As a lawyer, I know the party who investigates and prepares their case knows far more about the evidence and how to present it than the judge does. The tribunal is the umpire, not a player.
The tribunal proposes giving itself unbridled power to selectively exempt anyone it wishes from any of its rules, without having to give reasons.
Claimants and accused parties will not know for certain what the real rules of the game are. This tribunal needs firm, fair, predictable rules with a narrow – not open-ended – power to grant exceptions.
Usually, courts and tribunals first consult the parties before setting hearing dates. This tribunal proposes giving itself excessive power to set hearing dates without the basic courtesy of asking about the parties’ availability.
McGuinty’s government said Bill 107 makes human rights enforcement more accessible to discrimination victims. The tribunal is supposed to be less formal than courts. Yet the proposed rules make discrimination victims overcome more hurdles to launch a case than under the old human rights system or to file a court case.
The government said it is speeding up human rights cases. Yet the tribunal proposes giving itself the power to delay a case as long as it wants without having to give reasons.
These rules violate the pivotal promise of the McGuinty government that every discrimination victim’s case will get a hearing in person. The rules let the tribunal decide whether a case gets only a “written hearing,” not a hearing in person.
It’s a cruel irony that the small group of lawyers who advocated for Bill 107 slammed the old system for letting the Human Rights Commission dismiss claims without a hearing in person. Some of those lawyers now work at the tribunal that proposes giving itself the same power to decide or delay cases without a hearing in person.
The Charter of Rights gives parties and witnesses at legal proceedings the right to an interpreter. This is especially important in human rights cases.
Yet a Human Rights Tribunal policy says if you need an interpreter for a language other than French, English or sign language, you’ll have to bring one yourself, except in exceptional cases. The tribunal says it hasn’t refused requests for interpreters. If an organization posting discriminatory notices said in its defence that it didn’t follow its posted policies, the tribunal would give that defence short shrift.
These rules would practically force discrimination claimants and accused parties to retain lawyers earlier in the process than pre-Bill 107. That’s great for lawyers. It’s worse for the parties. It can entrench parties’ positions faster, making mediation harder.
After public criticism, McGuinty amended Bill 107, obliging the tribunal to hold public consultations before adopting rules. The tribunal takes an impoverished view of this duty. It refused to advertise for public input or hold a press conference or public meetings on its proposals. It just posted a notice on its website and emailed a few hundred people for feedback. If you didn’t visit that website or weren’t on its email list, tough luck.
Will the courts rein in the tribunal? Bill 107 reduced the power of the courts to overturn tribunal decisions. Many of us tried raising concerns before Bill 107 was passed in 2006. Facing a rising tide of public criticism of Bill 107, McGuinty shut down further legislative public hearings on the bill that had been promised, advertised and scheduled.
The tribunal should reopen its largely invitation-only consultation and extend its deadline for input. Even the Human Rights Commission needed an extension. It should revamp these proposed rules.
Recently, controversy and criticism swirled around some human rights cases, some valid, others excessive. The Human Rights Tribunal should adopt procedures that increase public confidence, not unfair ones that can fan the flames.
I know the old human rights system’s weaknesses and the need for reform. I used it to force the TTC to announce all subway and bus stops for us blind passengers.
Bill 107 was the wrong reform. The tribunal’s proposed rules make things worse.
David Lepofsky is a Toronto lawyer and activist for reforms to protect the rights of persons with disabilities.