May 28, 2008
Under five weeks from now, on June 30, 2008, Bill 107 goes into operation. It privatizes enforcement of human rights in Ontario.
On Day One, the Human Rights Tribunal of Ontario estimates that there will be 4,000 discrimination cases already in the works at the Ontario Human Rights Commission. What will happen to them?
We know that on and after June 30, 2008, any discrimination victims who want to launch a new individual discrimination case must investigate their case themselves. They must prosecute it before the Human Rights Tribunal themselves. They won’t have the Human Rights Commission as the public investigator and public prosecutor.
What about those who filed their complaint under the old human rights system, weeks, months or years before, and haven’t had their case fully investigated and resolved?
We still don’t know the complete answer, just weeks before D-Day, June 30. The 4,000 complainants now at the Human Rights Commission would certainly want to already know the full answer, so they can start planning.
Here’s what we know and what we don’t know.
- Normally, when a complicated new law like Bill 107 comes into effect to replace an earlier law, the Government includes “transition” provisions. These set the rules on how to deal with the backlog of people in the old system when the new system starts up. Normally, a new law’s transition provisions let those in the old system finish their cases in the old system. It’s easier and fairer than changing the rules in the middle of the case.
- When the McGuinty Government first introduced Bill 107 over two years ago in April 2006, it proposed a radical departure from that usual approach. It was going to require the vast majority of human rights cases in the old system to immediately have to start their discrimination cases all over again in the new system. The McGuinty Government never explained why it was doing that to the many people still in the old system.
- In 2006, the AODA Alliance was in the lead in pointing out to the Government and the public that this threatened to cause chaos. It would waste a great deal of money and be very unfair to the many in the old system. We proposed instead that all those in the old system should be able to finish their cases in the old system, with the Human Rights Commission staying on as public investigator and public prosecutor. Below we set out the four pages on this topic from our November 2006 brief to the Ontario Legislature. You can see the full brief by following the links from: http://www.www.aodaalliance.org/category/ontario-human-rights/
- In 2006, many community groups supported the AODA Alliance’s recommendations for amendments to Bill 107. A small group, mainly some lawyers, staunchly supported Bill 107. We aren’t aware of any of that small group who endorsed the proposal to dump all existing cases at the Human Rights Commission into the new system on Day One.
- In November 2006, as concerns about Bill 107 multiplied, the McGuinty Government invoked “closure” and cancelled the resumed public hearings on Bill 107 that it promised, scheduled and advertised. Groups like the AODA Alliance thus didn’t have a chance to publicly present to the Legislature its concerns, like those regarding Bill 107’s unfair proposed transition provisions.
- Late in 2006, the McGuinty Government brought forward a group of amendments to Bill 107 before that bill was passed. These included changes to the bill’s proposed transition provisions. These amendments were tabled in the Legislature shortly before the Legislature’s Standing Committee voted on them. There was no chance for public debate on them. The McGuinty Government’s closure motion prevented MPPs at the Legislature’s Standing Committee from discussing and debating the contents of the Government’s amendments to the bill’s important transition provisions. For more on the Government’s last-minute amendments, visit:
- In the end the McGuinty Government made some changes to the bill’s transition provisions, but it didn’t do all of what the AODA Alliance recommended. Bill 107’s final provisions on transition from the old system to the new, sections 52 to 55 are very unclear, complicated, badly-written, and hard to understand, even for lawyers with experience in the human rights field. Discrimination victims who don’t have a lawyer will find them even harder to figure out. What we know is this:
On June 30, 2008, if you are one of the 4,000 complainants whose case is now at the Human Rights Commission, you have a choice. You can opt to stay with the Human Rights Commission, or you can take your case to the Tribunal and start all over again.
However, it is not as simple as it seems. You face a “Catch-22.” For one thing, if you opt to stay at the Human Rights Commission under the old system, the Human Rights Commission only has six months to resolve your case. If it doesn’t work out a settlement, or win your case at the Tribunal within those six months, then when the six months are up on January 1, 2009, you are on your own. The Human Rights Commission drops out of your picture. You must start a new case all over again at the Tribunal after that. You won’t have the Human Rights Commission as public investigator or public prosecutor.
If you decide on June 30, 2008 (or any time for the next six months after that) to opt to take your case away from the Human Rights Commission, and to take it yourself to the Tribunal under the new system, the Tribunal won’t deal with your case under the new rules it is now developing for all cases in the new system. Instead, the Tribunal will have a special set of transition rules for coping with the transition cases that jump from the old system to the new system between June 30, 2008 and December 31, 2008.
- What will those special new rules be? You’d sure want to know what they are before you decide whether to jump from the old system to the new one.
Here’s the problem. The Human Rights Tribunal hasn’t adopted its transition rules yet. This is so even though Bill 107 requires the Human Rights Tribunal to adopt transition rules, and to consult with the public on them before adopting them. It has had almost 18 months to come up with these.
Very late in the day, on May 5, 2008 the Tribunal released a package of proposed transition rules to deal with this. It has invited public comment. As far as we can tell, this consultation is as “unpublic” as its inadequate consultations on its proposed permanent rules. For the AODA Alliance’s submission on the Tribunal’s permanent rules, visit:
- The Tribunal’s consultation on its proposed Transition rules is very short. It runs from May 7 to June 2, 2008.
- From our review of the Tribunal’s proposed transition rules, we can say this:
a) It appears that the 4,000 complainants who are now before the Human Rights Commission will unquestionably need the advice of a knowledgeable lawyer to decide whether to jump to the new system after June 30, 2008. If they do decide to make that jump, they will also clearly need a skilled lawyer to represent them when they navigate these complicated transition rules.
b) The Tribunal’s proposed transition rules threaten to generate even more delay for those among the 4,000 complainants, now in the old system, who don’t decide right away to jump to the new system. As noted above, if the Human Rights Commission cannot resolve their case before January 1, 2009, then after that six month period, they will have to start their case all over again at the Human Rights Tribunal, but without the help of the Human Rights Commission. For those who have suffered the most from the under-funding and delays in the old system, it appears that Bill 107 could make things even worse for them in terms of delay.
c) A discrimination victim whose case concerns disability issues may well find the Tribunal’s transition rules extremely ill-suited to them. The Tribunal’s proposed transition rules impose a serious barrier against calling expert evidence, except a doctor’s medical report. The proposed transition rules state:
5.15 The Tribunal will not ordinarily permit the introduction of expert evidence, other than medical reports, requests to add parties, consolidate applications or requests to intervene in the application unless exceptional circumstances exist and doing so will not adversely affect the highly expeditious nature of the case resolution conference.
In disability discrimination cases, especially those involving the duty to accommodate the needs of persons with disabilities, expert evidence can be especially important. Thus, this proposed transition system could disproportionately pressure discrimination victims with disability cases now in the old system to stay in the old system until January 1, 2009, and suffer the risks of further delays identified above. Disability is among the commonest grounds of discrimination claim that the Human Rights Commission receives.
d) The proposed transition rules also appear to suffer from many if not most of the problems the AODA alliance has identified, in the tribunal’s proposed permanent rules. We still don’t know whether the tribunal is going to act on the AODA Alliance’s recommendations regarding its proposed permanent rules. Under five weeks before Day One, the Tribunal hasn’t announced what the final version of the permanent rules is. Our recommendations for improvements to the Tribunal’s proposed permanent rules have been endorsed by a number of community organizations who share our concerns.
We therefore present these three recommendations to the Human Rights Tribunal regarding its proposed transition rules:
1. We recommend that the Tribunal remove the serious barrier in its proposed transition rules that impede many persons with disabilities from using them, namely the substantial barrier to using expert witnesses in transition cases that opt to jump to the new system between June 30 and December 31, 2008.
2. We recommend that the transition rules be amended to let a discrimination victim, whose case is already at the Human Rights Commission on June 30, 2008, keep their case in the old system until the case is finally decided, even if it takes longer than six months. The Tribunal should have the power to order, at the complainant’s request, that the Human Rights Commission stay on as public investigator and public prosecutor right to the end of the case, whether it resolves in a settlement or a full hearing that the Commission prosecutes at the Tribunal, and whether or not it is resolved by December 31, 2008.
3. We recommend that to the extent possible, the Tribunal amend the proposed transition rules in accordance with the AODA Alliance’s recommendations in its brief on the tribunal’s permanent rules.
To read the Tribunal’s announcement regarding its proposed transition rules, and to read the proposed rules themselves, visit these links:
Send the Human Rights Tribunal your feedback at:
Human Rights Tribunal of Ontario
Public Consultation – Proposed Procedural Rules for Applications under Section 53(3)
Attn: James Schneider, Counsel
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Human Rights Tribunal of Ontario
Public Consultation – Proposed Procedural Rules for Applications under Section 53(3)
Attn: James Schneider, Counsel
Facsimile: (416) 212-5638
Subject Line: Public Consultation – Proposed Procedural Rules for Applications under Section 53(3)
Send us at the AODA Alliance your feedback to:
EXCERPT FROM THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE’S NOVEMBER 27, 2006 BRIEF TO THE ONTARIO LEGISLATURE ON BILL 107
XVI. PROVISIONS FOR TRANSITION FROM CURRENT CODE TO BILL 107 CREATE CHAOS
As noted throughout this brief, Bill 107 makes massive changes to human rights enforcement in Ontario. As with any Bill which brings about major change, Bill 107 includes transition provisions. These are needed to provide for the transition period. They must indicate what will be done with the approximately 2,500 cases now at the Commission or Tribunal, and the additional complaints that will be filed before any new bill is passed and proclaimed in force.
Orderly transition provisions are extremely important. They need to ensure a smooth start to a new system. They must prevent any new body from starting its activities with an existing caseload or backlog problem. They must also ensure fair treatment of those who launched cases under the current Code, and who have been relying on the existing law as they worked their way through the current human rights process.
Bill 107’s transition provisions are seriously flawed. They fail to fulfil any of the foregoing goals. Instead, they create more delay and backlog, instead of fulfilling the Government’s stated aim of reducing delays and backlogs in the human rights process.
Sections 51 to 56 of Bill 107 are the provisions which address the 2,500 or so human rights complaints that are already in the human rights system when Bill 107 comes into force. These sections provide that virtually all of these cases will have to be re-initiated at the Tribunal. The only cases that will continue to proceed under the existing Code are the very small percentage of cases which the Commission will have investigated and referred to the Tribunal, and where the Tribunal has begun to receive at least some evidence in the case.
Under Bill 107’s transition provisions, all other cases must be restarted from scratch at the Tribunal. The complainants will lose whatever support or assistance they were receiving up to that point. These cases include:
i) cases that have been fully or partially investigated by the Commission.
ii) cases that are already in the process of being mediated by the Commission.
iii) cases that the Human Rights Commission is assessing, to decide if they should be prosecuted.
iv) cases that the Commission has investigated and has referred to the Tribunal for a hearing, but where the hearing hasn’t begun, or where the hearing has begun but no evidence has been called (e.g. cases before the Tribunal which are tied up in weeks or months of pre-hearing technical and procedural motions).
A. THE TRANSITION PROVISIONS HURT DISCRIMINATION VICTIMS
Sending the vast majority of cases now in the human rights system back to the starting gate at the Tribunal works real hardships on people who relied on the state of the law when they launched their human rights complaints. Engaging in a human rights complaint is time consuming and emotionally draining. Some cases at the Commission are seriously backlogged and have waited years for their investigation and public prosecution. To force these discrimination victims to go back to the starting line is unfair and for many, traumatic.
This transitional scheme is very unfair to complainants who took the time and effort to bring human rights proceedings with the reasonable expectation that they will have the benefit of the procedures and safeguards that the law now extends to them. It takes away such things as the right to a public investigation of their case, and the right to appeal to court, which were available to them when they embarked on the process. This will especially frustrate those discrimination victims facing a respondent who uses every opportunity and legal lever to delay and prolong the case, in the interests of demoralizing the complainant.
This same problem also confronts the many potential human rights complainants who haven’t yet filed a human rights complaint, but who now face unlawful sexual harassment or discrimination in their jobs, or in access to housing, goods or facilities. This transition provision leaves them in limbo. They cannot file a complaint under the new regime, because it is not on line yet. On the other hand, it will seem pointless to file a complaint under the existing Code, except perhaps to fulfil the Code’s short six-month limitation period. They may question whether to bother now taking part in a Commission investigation or mediation process that the Government could suddenly bring to a halt at any time by proclaiming Bill 107 in force.
B. THE TRANSITION PROVISIONS ENTAIL MASSIVE WASTE OF RESOURCES
Sending all these cases back to the starting point at the Tribunal also entails a massive waste of public resources. Many of the existing cases have been mediated or conciliated by the Commission, have had an investigator invest time, have been assessed by the Commission, and some have had a public prosecutor assess and begin preparing to take the case to the Tribunal for a hearing. Under Bill 107, this investment is largely lost. Bill 107 doesn’t ensure that complainants will get the benefit of any of the work done on their case, including any evidence which may have been unearthed by a Commission investigator.
C. THE TRANSITION PROVISIONS SHIFT BACKLOG TO THE TRIBUNAL
Bill 107’s scheme to send virtually all cases to the Tribunal on the day of Bill 107’s proclamation ensures that the line-up at the Tribunal’s door on the first day the new law goes into effect will be very, very long. The current Tribunal handles about a hundred cases annually. Bill 107 would initially multiply that caseload twenty-five times, on its first day.
Making this worse, nothing in this transitional scheme requires the Government to hold off proclaiming Bill 107 in force until the Government has finished all the tasks needed to ready itself for the new regime. Bill 107 doesn’t require the Government to have appointed enough new Tribunal members to handle twenty-five times its current case load. It doesn’t require the Tribunal to have hired enough staff to handle all the new work it must shoulder. It doesn’t require that the Tribunal members and staff have had the training they need to get started. It doesn’t require that the Government have provided the Tribunal with enough office space, phone lines, computers and other resources that it will need to deal with its mammoth new workload (including a flood of phone calls from the confused public as this new bill comes on line).
Under Bill 107, the Tribunal will likely be overwhelmed on its first day with angry and frustrated complainants, amplified by their loss of the Commission’s investigative or prosecutorial support and the return of their cases to the starting point.
D. ANY HUMAN RIGHTS LEGAL SUPPORT CENTRE WILL BE OVERWHELMED
Bill 107 doesn’t require that the Government hold off proclaiming Bill 107 in force until the promised new Human Rights Legal Support Centre is established, and has sufficient staff and infrastructure. Even if the Government does establish a new Human Rights Legal Support Centre before proclaiming Bill 107 in force, to advise and represent every human rights complainant, that Centre will be overwhelmed on its first day of operations. It would need major infrastructure and staff to cope with the sudden arrival of 2,500 or more cases at its doorstep on the first day it opens for business. The first day will see an onslaught of complainants, confused and angry about the transfer of their files from the Commission to the Tribunal, and the loss of the support they had prior to the passage of the Bill.
E. CABINET POWERS CAN CONFLICT WITH THE CURRENT TRANSITION PROVISIONS
Complicating this, section 56(4) of Bill 107 lets Cabinet make regulations governing the transition from the existing Code to the new system. These regulations can conflict with and override the provisions of the legislation. Section 56(4) provides:
(4) If there is a conflict between a provision in a regulation under this section and any provision of this Act or of any other regulation made under this Act, the regulation under this section prevails.
Cabinet is rarely given extraordinary power to override democratically-enacted legislation. Unlike legislation that the Legislature passes after public debate, regulations are made by Cabinet in closed session. Regulations require no public debate before they are passed.
There is no reason why Cabinet requires this excessive power. It could be used to even more substantially harm those discrimination victims who are now in the system, and who are already treated unfairly by Bill 107.
It is therefore recommended that:
#43. Sections 51 to 56 of the bill be amended to provide that any complaint that has been filed with the Commission before the date Bill 107 comes into force shall proceed and be dealt with under the existing Code, not under Bill 107’s new system. Only human rights complaints filed on or after the date the bill comes into force should be dealt with under Bill 107’s new system.
#44. Section 56(4) be eliminated from the bill.
Tied to the transition provisions is s. 12 of the bill. It lets Cabinet proclaim Bill 107 in force as soon as it wishes. It is necessary to ensure that the bill doesn’t come into force until the Government has ensured that all key institutions are in place and sufficiently staffed to serve the public. It is also necessary to ensure that a party who is at least somewhat independent of or removed from Government certify that these institutions are in place.
It is therefore recommended that:
#45. Section 12 of the bill be amended to provide that ss. 1 to 11 of the bill do not come into force until:
(a) the Ontario Human Rights Commission has certified to the Legislature that the key institutions are ready to serve the public under Bill 107 including, without limiting the generality of the foregoing, the Human Rights Tribunal, and the Human Rights Legal Support Centre, and
(b) the Lieutenant Governor proclaims this Act in force.