Ontario Human rights Reform - A call to Action

Bill 107's new s. 41 provides in material part:

Dismissal of proceeding without hearing

41. (1) The Tribunal may dismiss a proceeding, in whole or in part, without a hearing, if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal;

(c) some aspect of the statutory requirements for bringing the proceeding has not been met;

(d) the application is made under section 35 and the facts alleged in the application, even if true, do not disclose an infringement of a right of the applicant under Part I;

(e) the application is made under section 36 and the facts alleged in the application, even if true, do not disclose infringements of a right under Part I that are of a systemic nature;

(f) the application is made under subsection 45.1 (3) and the facts alleged in the application, even if true, do not disclose a contravention of a settlement; or

(g) the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of an application.

. Section 34 provides in material part:

34. (1) The Tribunal may make rules governing the practice and procedure before it.

(2) Without limiting the generality of subsection (1), the rules may,

(a) provide that the Tribunal is not required to hold a hearing;

(b) limit the extent to which the Tribunal is required to give full opportunity to the parties to present their evidence and to make their submissions;

. Bill 107's section 40 provides:

40. The Tribunal may defer an application in accordance with the Tribunal rules.

. The Toronto Star reported as follows:

June 26, 2006
Province appeals ruling allowing two inquests; Psych patients deaths at issue: Rights tribunal had given okay
Heba Aly

A ruling that two families have waited years for is now being appealed by the provincial government, leaving them wondering if justice will ever be served.

It seems Robert Illingworth and Renata Braithwaite rejoiced too quickly when the Ontario Human Rights Tribunal ordered inquests into the deaths of their loved ones.

Thomas Illingworth, 50, and Melba Braithwaite, 53, were both involuntary psychiatric patients in Toronto institutions when they died - the first after an alleged confrontation with staff, the second after falling in the shower unsupervised.

According to the Coroner's Act, inquests are mandatory when a person dies in prison or in police custody. But when a person dies in a psychiatric facility during involuntary detention ordered by a physician, inquests are up to the discretion of the coroner.

Last month, former Supreme Court of Canada Justice Peter Cory ruled this law was discriminatory.

But last week, the Attorney General for Ontario and the Chief Coroner filed a notice of appeal.

"I was so angry. I just hit the roof," said Robert Illingworth, who has waited 11 years to find out what happened to his brother. The attorney general's ministry argues that the tribunal disregarded the "public interest mandate of the Coroner's Act" by treating an inquest as a service to an individual and that it admitted testimony from people "who had no relevant expertise and who lacked impartiality."

The act already recognizes "a special need or vulnerability of the mentally ill" by requiring that all deaths be investigated, Chief Coroner Dr. Barry McLellan added.

But that's not good enough for Progressive Conservative MPP Cam Jackson, whose bill requiring inquests into the deaths of children in court-ordered custody was approved in the provincial legislature last week.

"An investigation is closed and a coroner's inquest is an open process."

NDP leader Howard Hampton said the government needs to show leadership by changing the Coroner's Act. "Simply allowing this to be fought back and forth in the courts is not satisfactory." A spokesperson at the attorney general's office could not be reached for comment. A spokesperson for the minister of community safety would not comment because the matter is before the courts.

This is all very "disappointing" for Renata Braithwaite. "She has fought for more than five years to get answers into her mother's death," said her lawyer Suzan Fraser.

. Bill 107's new s. 35 would provide in material part:

35. (5) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.2 with respect to the alleged infringement and the proceeding has not been finally determined; or

(b) a court has finally determined the issue of whether the right has been infringed.

This new provision invokes s. 46.2, a new provision that Bill 107 creates, which states:

46.2 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may order the party who infringed the right to pay monetary compensation to the party whose right was infringed for injury to dignity, feelings and self-respect.

Same

(2) Subsection (1) does not create a cause of action based solely on an infringement of a right under Part I.

...

(6) For the purpose of subsection (5), a proceeding or issue has not been finally determined if a right of appeal exists and the time for appealing has not expired.

. The Liberal party's 2003 election promise as set out in a letter from Dalton McGuinty to David Lepofsky, chair of the Ontarians with Disabilities Act committee, which read as follows:


Dalton McGuinty, MPP
Leader of the Official Opposition
Room 381, Legislative Building, Queen's Park
Toronto, Ontario M7A 1A4
(416) 325-7155
(416) 325-9895 fax

April 7, 2003

David Lepofsky
Ontarians with Disabilities Act Committee
1929 Bayview Avenue
Toronto, ON M4G 3E8

Dear Mr. Lepofsky,

I would like to take this opportunity on behalf of the Liberal Caucus to thank you once again for the work that you and your organization are doing to improve the lives of people with disabilities here in Ontario.

I would also like to share with you the Ontario Liberal Party platform for the approaching election regarding Ontarians With Disabilities.

We believe that the Harris-Eves government's Ontarians With Disabilities Act does not even begin to adequately address the needs and rights of countless Ontarians. We therefore commit that:

We will introduce, with the intent of passing within one year of forming government, a strong and effective Ontarians With Disabilities Act, following fully-accessible, province-wide hearings. It will incorporate all 11 principles that were adopted by the Ontario Legislature on October 29, 1998. The legislation and regulations will include timelines, standards and a mechanism for effective enforcement, and, at a minimum, will reflect the substance of amendments to the Conservative bill offered by the Liberal party in the fall of 2001.

As Premier, I will meet with ODA Committee representatives and my government will work together with the Committee to develop the new Act.

On forming government following the election, we will provide a Cost of Living increase for participants in the Ontario Disability Support Program.

I look forward to continuing to work with you to advance the interests of persons with disabilities in Ontario and I wish you the greatest possible success in that regard.

Yours truly,

Dalton McGuinty, MPP
Leader of the Official Opposition
Leader of the Ontario Liberal Party

. The following documents some of the public record exchanges on point:

Excerpts from the Hansard of the Standing Committee on Social Policy's January 31, 2005 Hearings on Bill 118, the Proposed Accessibility for Ontarians with Disabilities Act

(Underlining Added)

1. Ms. Martel: With respect to what the tribunal can do, I don't see a lot of guarantee about public access. First of all, I don't really see where there is an opportunity for people to make complaints if they are concerned about an accessibility standard -- not an organization to which the standard has been applied, but persons who are concerned that a standard may not be stringent enough or may not be implemented properly. I don't see much room for them at the tribunal, because the tribunal seems to be a place where you go to deal with an order. What is the mechanism for public input around complaints that accessibility is just not being achieved in a timely fashion, be it in one sector or another? Where do people have a chance to fit in here and have their complaints reviewed, investigated in a very serious manner, and adjudicated?

1010

Ms. Hewson: There is no individual complaints process provided for in the bill. Individuals who believe they have been discriminated against under the Human Rights Code can go to the Human Rights Commission. However, this bill is proactive in nature, with standards that have to be complied with, so the organization that is required to comply with the standard must do so. It must provide its report to the public, so there is public access to information there. It must file its report with the government, and there can be an inspection. So somebody who felt the organization was not, for example, complying with the standard could first of all go to the organization itself based on the report and say, "You say that you are doing X, but here we see that you are not doing it. Therefore, you should do it." That's one mechanism. It is not a legal complaints mechanism.

2. Ms. Martel: Let me just respond in this way, and then I'll move on to another point: I ask myself the question, "Are we really challenging ourselves" -- and I say that generally -- "with the 20-year time frame?" I can't believe that we are. There will be some employers who will drag their feet for as long as they possibly can because they don't want to comply. We can't work from their timetable, because they are not interested in making the changes that are necessary to ensure that everyone can participate. There are some other employers, as we already said, who are well on the way, and we should be working with their best practices and seeing how much of their best practices can be applied to other sectors and in other jurisdictions to move people forward. I remain very concerned. Twenty years is a whole generation of people who will continue essentially to be left out when they have an enormous contribution to make.

I guess the challenge I leave with you is that if, during the course of the hearings, groups come forward and say, "We think the time frame should be less; we think we can rise to this opportunity and this challenge and do it in a shorter time frame," I hope your government will be prepared to listen to that, accept that and make changes, either with respect to standards development and that cycle and/or -- and I hope both -- with respect to a final time frame that would be shorter, so we allow people to participate fully much sooner than 20 years from now.

The second point I want to raise -- it's funny that you mentioned court, because one of the concerns I want to raise is essentially with the purpose clause. Their reference for wanting a change had to do with whether or not people would end up in court because the interpretation of the statute might be challenged. Their concern had to do with the fact that the purpose clause currently talks about a benefit to all Ontarians, which is fine, when in their view the purpose of the act should be to ensure that Ontarians with disabilities can participate fully and there is an end to the systemic discrimination they have faced for so many years now. They very clearly believe -- and I agree with them -- that the purpose clause should very clearly talk about this legislation being anti-discrimination legislation. That is the purpose; that is the point. This is a group of Ontarians whom we are trying to benefit. So I'm asking -- I asked this to staff earlier, and I'm sure ARCH and, I hope, other groups will come forward and talk about the purpose clause -- if you would go back and have another serious review of the purpose clause to see how it can be strengthened so that the intent is clearly outlined: This is anti-discrimination legislation -- that's the point -- and it should be in the purpose clause.

Hon. Mrs. Bountrogianni: We will definitely take that under advisement, because that is the intent of the bill, or that was the intent of the bill. Indeed, any legislation that gives the most rights to the disabled will be adhered to, whether it's this legislation or the Human Rights Commission's. We are not taking anything away from the Human Rights Commission.


Excerpts from the Hansard of the Standing Committee on Social Policy's April 11, 2005 Clause By Clause Debates on Bill 118, the Proposed Accessibility for Ontarians with Disabilities Act:

(Underlining added)

1. We go to section 26, pages 59 and 59a.

Mr. Marchese: I move that section 26 of the bill be struck out and the following substituted:

"Tribunal

"26. (1) There is hereby established a tribunal to be known as the Accessibility Appeals Tribunal in English and Tribunal d'appel en matière d'accessibilité in French.

"Composition

"(2) The tribunal shall be composed of such members as may be appointed by the Lieutenant Governor in Council.

"Chair, vice-chair

"(3) The Lieutenant Governor in Council shall appoint a chair and may appoint one or more vice-chairs of the tribunal from among the members of the tribunal.

"Remuneration

"(4) The members of the tribunal shall be paid such allowances and expenses as are fixed by the Lieutenant Governor in Council.

"Employees

"(5) Such employees as are considered necessary for the proper conduct of the tribunal may be appointed under the Public Service Act.

"Rules

"(6) The tribunal may make rules regulating its practice and procedure and generally for the conduct and management of its affairs and such rules are not regulations within the meaning of the Regulations Act.

"Panels

"(7) The chair of the tribunal may appoint panels composed of one or more members of the tribunal to hold hearings in the place of the full tribunal wherever the tribunal is required to hold a hearing under this act and, where a panel holds a hearing, the panel has all the powers and duties, except the power referred to in subsection (6), given to the tribunal under this act.

1630

"Powers and duties

"(8) The tribunal may exercise such powers and shall perform such duties as are conferred or imposed upon it by or under this act."

The section simply replaces the current provisions that allow for multiple tribunals at some point in the indefinite future with a single tribunal to be established immediately. We think this is more effective and many of the deputants called for this as well. It's better than what the government is proposing, in my view.

The Chair: Any further debate on the amendment?

Mr. Jackson: I just want to reinforce that I too came away from the public hearings quite convinced that this was essential, so I will be supporting Mr. Marchese's motion. I have a similar one, but mine isn't as fulsome as Mr. Marchese's, so I will definitely yield to his better wordsmithing and tell him that I will support it for the same reasons.

Mr. Ramal: I believe that setting up another tribunal will duplicate the services and add more expense. Also, I would say that people with disabilities are already covered under the discrimination legislation and also under the Human Rights Code. So we are protecting them, and they have the right and ability to complain and send their complaint to the Human Rights Commission.

Plus, we believe the duplication in terms of a new tribunal would be a waste of time and effort and also a waste of money. If we can focus our efforts on one tribunal in order to achieve our goal, then settling complaints will be a lot better. Also, the director would not be the person who would be appearing before the tribunal to defend the case.

The Chair: Any further debate? If there is none, I will now put the question. Shall the motion carry?

Ayes: Jackson, Marchese.

Nays: Fonseca, Leal, Parsons, Ramal, Wynne.

The Chair: The motion does not carry.

2. Mr. Jackson: I guess what I'm trying to get at is that we don't want multiple tribunals, which currently exist in this legislation; we feel that there should be one. It's almost like having multiple human rights commissions.

You go to one commission, you have a specialty in that area and they deal with your ruling. That's kind of what we were trying to achieve here. This is after the work of the standards committee is completed, people aren't happy with the consensus and the government's regulations, and they want to appeal them. That's why I think it should be one august body that is very capable to handle the work.

Ms. Wynne: I just want to be clear what we're talking about here, because it's my understanding that under section 26, the appeal that we're talking about is an appeal of a compliance order. So someone is under an order to comply and can appeal that order to a tribunal. It's not about accessibility for individuals. That's not the kind of appeal we're talking about. Can I get some clarification about that, that those individual appeals could still go to the Human Rights Commission?

Ms. Hewson: You're correct, Ms. Wynne. These are appeals on whether a regulation or standard has been complied with or a report has been made.

Ms. Wynne: So it would be the person under the order --

The Chair: Excuse me --

Mr. Marchese: If I could encourage people to speak clearly into the mike. I can't hear very well.

The Chair: I would ask that you repeat what you answered, and then I'll go back to you, Ms. Wynne.

Ms. Hewson: I beg your pardon. Yes, Ms. Wynne is quite right that these are appeals from an order of the director.

1640

Ms. Wynne: So it's the organization or the person who has been ordered to comply who would be appealing to the tribunal; it's not someone appealing the accessibility of a building or a service.

Ms. Hewson: That's correct.

Ms. Wynne: So then, by being as clear as possible with standards, we're trying to cut down the number of appeals of this nature that there would be. There is still recourse for individuals who feel that accessibility is not adequate, with the Human Rights Commission. Is that correct?

Ms. Hewson: That is correct.

Ms. Wynne: OK. Thank you. That's the reason I won't be supporting this amendment.
. On December 10, 2001, the Liberal Party, while in opposition, tabled a series of amendments to the Conservative Government's Bill 125, the proposed Ontarians with Disabilities Act 2001. While in opposition, Dalton McGuinty made a written election promise on April 7, 2003 to enact a new, strong and effective disability law. He pledged that: "The legislation and regulations will include timelines, standards and a mechanism for effective enforcement, and, at a minimum, will reflect the substance of amendments to the Conservative bill offered by the Liberal party in the fall of 2001."

The Liberals' Fall, 2001 amendments included several provisions that would expand the investigation and enforcement mandates of the Ontario Human Rights Commission. These included the following: (Underlining is added.)

1. I MOVE that section 10 of the Bill be struck out and the following substituted:

Ministry barrier-free plans

10. (1) Each ministry has the duty to ensure that the funding, services, programs, practices, legislation and regulations it administers and that its workplace are free of barriers through the development and implementation of barrier-free plans to identify, remove and prevent barriers within the time period specified in regulations that the Lieutenant Governor in Council shall make, in consultation with persons with disabilities and others, within six months after this section comes into force.

Contents of plan

(2) A barrier-free plan shall include,

(a) the comprehensive identification, removal and prevention of barriers to persons with disabilities in the Acts and regulations administered by the ministry and in the ministry's policies, programs, practices and services, as well as the ministry's workplace;

(b) specific action steps and time lines for performing the duties set out in clause (a) and, except if it is not practical, a statement of who is responsible within the ministry for those duties;

(c) a report on the measures the ministry has taken to identify, remove and prevent barriers to persons with disabilities;

(d) a statement whether the ministry has met its obligations set out in the plan for the year in which the plan is developed and, if not, the particulars of and reasons for non-compliance;

(e) a description of the measures in place to ensure that the ministry assesses its proposals for Acts, regulations, policies, programs, practices and services to determine their impact on removing and preventing barriers against persons with disabilities and a statement of who is responsible for the measures;

(f) a report on the Acts, regulations, policies, programs, practices and services reviewed during the year in which the plan is developed, the recommendations made to ensure that they are barrier-free, and whether the recommendations were adopted;

(g) a list of the Acts, regulations, policies, programs, practices and services that the ministry will review in the year after the year in which the plan is developed to identify barriers to persons with disabilities and a statement of who is responsible for the review;

(h) a description of the specific measures that the ministry intends to take in the year after the year in which the plan is developed to identify, remove and prevent barriers to persons with disabilities; and

(i) all other information that the regulations prescribe for the purpose of the plan.

Process for developing plan

(3) In developing and implementing its barrier-free plan, a ministry shall consult with the Barrier-Free Council of Ontario, the Barrier-Free Disability Directorate of Ontario and with persons with disabilities who may be affected by the plan.

Availability to the public

(4) A ministry shall make its barrier-free plan available to the public in an accessible format within 10 days of the plan receiving the signatures of the ministry's minister and deputy minister.

Enforcement of plan

(5) The Ontario Human Rights Commission shall review all barrier-free plans for which it has reasonable grounds to believe that a ministry has not complied with the plan and in conducting the review the Commission has all of the investigation powers that it has for investigating a complaint under the Human Rights Code.

2. I MOVE that the Bill be amended by adding the following sections:

Government obligations

20.1 (1) This Act binds the Crown.

Deadline for compliance

(2) Despite anything in this Act or the regulations, the Government of Ontario shall comply with its barrier-free obligations described in this Act within five years after subsection (1) comes into force for the purposes of the Ontario Government becoming barrier-free for persons with disabilities within that period of five years.

Enforcement

20.2 (1) The Ontario Human Rights Commission and the Ontario Human Rights board of inquiry have jurisdiction with respect to compliance with this Act and enforcement under this Act and for that purpose have the necessary authority and jurisdiction under the Human Rights Code.

Funding request

(2) Within three months after subsection (1) comes into force, the Minister of Finance shall introduce in the Assembly a bill that provides for the additional funding that the Ontario Human Rights Commission requires to fulfill adequately its responsibilities under subsection (1).

Conflict

20.3 This Act prevails in the event of a conflict between it and any other Act or a regulation, by-law or any policy which guarantees lesser rights to persons with disabilities.

3. I MOVE that section 103.1 of the Legislative Assembly Act, as set out in section 27 of the Bill, be struck out and the following substituted:

Barrier-free plan

103.1 (1) Each year, the Speaker shall prepare and implement a barrier-free plan.

Contents

(2) The barrier-free plan shall address the identification, removal and prevention of barriers to persons with disabilities in the Legislative Chamber and the other parts of the Legislative Building that are under the Speaker's control and in the policies, programs, practices and services of the Assembly.

Same

(3) The barrier-free plan shall include, with respect to the Legislative Chamber, the other parts of the Legislative Building that are under the Speaker's control and the policies, programs, practices and services of the Assembly,

(a) the comprehensive identification, removal and prevention of barriers to persons with disabilities;

(b) a report on the measures the Speaker has taken to identify, remove and prevent barriers to persons with disabilities;

(c) the measures in place to ensure that the Speaker assesses his or her proposals for policies, programs, practices and services to determine their effect on accessibility for persons with disabilities;

(d) a list of the policies, programs, practices and services that the Speaker will review in the coming year in order to identify barriers to persons with disabilities; and

(e) the measures that the Speaker intends to take in the coming year to identify, remove and prevent barriers to persons with disabilities.

Process for developing plan

(4) In developing and implementing the barrier-free plan, the Speaker shall consult with the Barrier-Free Council of Ontario, the Barrier-Free Disability Directorate of Ontario and with persons with disabilities who may be affected by the plan.

Availability to the public

(5) The Speaker shall make his or her barrier-free plan available to the public in an accessible format within 10 days of the plan receiving the signature of the Speaker.

Enforcement of plan

(6) The Ontario Human Rights Commission shall review the barrier-free plan if it has reasonable grounds to believe that the Speaker has not complied with the plan and in conducting the review the Commission has all of the investigation powers that it has for investigating a complaint under the Human Rights Code.

Barrier-free deadline

(7) Despite anything in this section, the Speaker shall ensure that the Legislative Chamber and the other parts of the Legislative Building that are under the Speaker's control are barrier-free within five years after subsection (1) comes into force.

Definition

(8) In this section,

"barrier" has the same meaning as in the Ontarians with Disabilities Act, 2001.

. Section 41 of the AODA 2005 provides:

41. (1) Within four years after this section comes into force, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a comprehensive review of the effectiveness of this Act and the regulations and report on his or her findings to the Minister. 2005, c. 11, s. 41 (1).

Consultation

(2) A person undertaking a review under this section shall consult with the public and, in particular, with persons with disabilities. 2005, c. 11, s. 41 (2).

Contents of report

(3) Without limiting the generality of subsection (1), a report may include recommendations for improving the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (3).

Tabling of report

(4) The Minister shall submit the report to the Lieutenant Governor in Council and shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session. 2005, c. 11, s. 41 (4).

Further review

(5) Within three years after the laying of a report under subsection (4) and every three years thereafter, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a further comprehensive review of the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (5).

Same

(6) Subsections (2), (3) and (4) apply with necessary modifications to a review under

. Section 14(5) of the current Code provides:

14(5) Subsection (2) does not apply to a special programme implemented by the Crown or an agency of the Crown.







ENDNOTES

Attorney General, Minister Statement, Introduction of Bill 107, Apr. 26, 06

Section 46.1 of Bill 107 provides;
46.1 (1) The Minister may enter into agreements with prescribed persons or entities for the purposes of providing legal services and such other services as may be prescribed to applicants or other parties to a proceeding before the Tribunal.
(2) An agreement under subsection (1) may provide for the payment for the services by the Ministry.”

Attorney General, Minister Statement, Introduction of Bill 107, Apr. 26, 06

Attorney General, Minister Statement, Introduction of Bill 107, Apr. 26, 06

Ministry of the Attorney General, Bill 107 Backgrounder, Apr. 26, 06

Attorney General, Minister Statement, Introduction of Bill 107, Apr. 26, 06

Attorney General, Question Period in the Legislature on Apr. 10, 2006

Ontario Human Rights Commission’s website, under the heading: “Chief Commissioner clarifies that statements regarding direct access are inaccurate”, posted Apr. 13, 2006

Attorney General, Question Period in the Legislature on Apr. 10, 2006

x Organizations which have said they opposed the direction of the Government's plans announced on February 20, 2006 (and which have called for public consultations before a bill is introduced) include:
Disabled Women's Network of Ontario
African Canadian Legal Clinic of Ontario
Chinese Canadian National Council, Toronto Chapter
Ontario Council of Agencies Serving Immigrants
South Asian Legal Clinic of Ontario
Metro Toronto Chinese and Southeast Asian Legal Clinic
National Anti-Racism Council of Canada
Accessibility for Ontarians with Disabilities Alliance
Canadian Arab Federation
Autism Society of Ontario
Canadian Council on American-Islamic Relations
Multiple Sclerosis Society
League for Human Rights of B'nai Brith Canada
Ontario Association of the Deaf
Bob Rumball Centre for the Deaf
The Canadian Hearing Society
Canadian Paraplegic Association
Canadian National Institute for the Blind
Alliance for Equality of Blind Canadians
Community Living Ontario
Thunder Bay & District Injured Workers’ Support Group
Urban Alliance on Race Relations
Operation Black Vote Canada
Aboriginal Legal Clinic
Canadian Race Relations Foundation
Community and Legal Aid Services Program, Osgoode Hall Law School
Older Women’s Network
National Organization of Immigrant and Visible Minority Women of Canada
Native Canadian Centre of Toronto

xi Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006

Ontario Human Rights Commission 2006 statistics, http://www.ohrc.on.ca/en_text/news/e_may-06-facts.shtml

Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006

Attorney General, Minister Statement, Introduction of Bill 107, Apr. 26, 06

Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006
Section 41 provides in material part:
Dismissal of proceeding without hearing
“41. (1) The Tribunal may dismiss a proceeding, in whole or in part, without a hearing, if,
(a) the proceeding is frivolous, vexatious or is commenced in bad faith;
(b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal;
(c) some aspect of the statutory requirements for bringing the proceeding has not been met;
(d) the application is made under section 35 and the facts alleged in the application, even if true, do not disclose an infringement of a right of the applicant under Part I;
(e) the application is made under section 36 and the facts alleged in the application, even if true, do not disclose infringements of a right under Part I that are of a systemic nature;
(f) the application is made under subsection 45.1 (3) and the facts alleged in the application, even if true, do not disclose a contravention of a settlement; or
(g) the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of an application.”

Section 34 provides in material part:
34. (1) The Tribunal may make rules governing the practice and procedure before it.
(2) Without limiting the generality of subsection (1), the rules may,
(a) provide that the Tribunal is not required to hold a hearing;
(b) limit the extent to which the Tribunal is required to give full opportunity to the parties to present their evidence and to make their submissions; …”

Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006

Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006
Section 33, which Bill 107 repeals, provides:
“33.--(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.
Investigation
(2) An investigation by the Commission may be made by a member or employee of the Commission who is authorized by the Commission for the purpose.
Powers on investigation
(3) A person authorized to investigate a complaint may,
(a) enter any place, other than a place that is being used as a dwelling, at any reasonable time, for the purpose of investigating the complaint;
(b)request the production for inspection and examination of documents or things that are or may be relevant to the investigation;
(c) upon giving a receipt therefore, remove from a place documents produced in response to a request under clause (b) for the purpose of making copies thereof or extracts there from and shall promptly return them to the person who produced or furnished them; and
(d) question a person on matters that are or may be relevant to the complaint subject to the person's right to have counsel or a personal representative present during such questioning, and may exclude from the questioning any person who may be adverse in interest to the complainant.
Entry into dwellings
(4) A person investigating a complaint shall not enter a place that is being used as a dwelling without the consent of the occupier except under the authority of a warrant issued under subsection (8).
Denial of entry
(5) Subject to subsection (4), if a person who is or may be a party to a complaint denies entry to any place, or instructs the person investigating to leave the place, or impedes or prevents an investigation therein, the Commission may refer the matter to the Tribunal or may authorize an employee or member to apply to a justice of the peace for a warrant to enter under subsection (8).
Refusal to produce
(6) If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the Tribunal, or may authorize an employee or member to apply to a justice of the peace for a search warrant under subsection (7).
Warrant for search
(7) Where a justice of the peace is satisfied on evidence upon oath or affirmation that there are in a place documents that there is reasonable ground to believe will afford evidence relevant to the complaint, he or she may issue a warrant in the prescribed form authorizing a person named in the warrant to search a place for any such documents, and to remove them for the purposes of making copies thereof or extracts therefrom, and the documents shall be returned promptly to the place from which they were removed.
Warrant for entry
(8) Where a justice of the peace is satisfied by evidence upon oath or affirmation that there is reasonable ground to believe it is necessary that a place being used as a dwelling or to which entry has been denied be entered to investigate a complaint, he or she may issue a warrant in the prescribed form authorizing such entry by a person named in the warrant.
Execution of warrant
(9) A warrant issued under subsection (7) or (8) shall be executed at reasonable times as specified in the warrant.
Expiration of warrant
(10) Every warrant shall name a date on which it expires, which shall be a date not later than fifteen days after it is issued.
Obstruction
(11) No person shall hinder, obstruct or interfere with a person in the execution of a warrant or otherwise impede an investigation under this Act.
Idem
(12) Subsection (11) is not contravened by a refusal to comply with a request for the production of documents or things made under clause (3)(b).
Admissibility of copies
(13) Copies of, or extracts from, documents removed from premises under clause (3)(c) or subsection (7) certified as being true copies of the originals by the person who made them, are admissible in evidence to the same extent as, and have the same evidentiary value as, the documents of which they are copies or extracts.”

Section 32 of the Code now provides in material part:
32.--(1) Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission.
(2) The Commission may initiate a complaint by itself or at the request of any person.


Section 36 of Bill 107 provides:
36. (1) The Commission may apply to the Tribunal for an order under section 43 if the Commission is of the opinion that,
(a) there are infringements of rights under Part I that are of a systemic nature and that the Commission has not been able to adequately address under Part III;
(b) an order under section 43 could address the systemic issues; and
(c) it would be in the public interest to make an application under this subsection….
(3) An application made by the Commission does not affect the right of a person to make an application under section 35 in respect of the same matter.

Section 43 of the Bill provides:
43. On an application under section 36, the Tribunal may make an order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act in respect of future practices, if the Tribunal determines that any one or more of the parties to the application have infringed a right under Part I and that the infringements are of a systemic nature.”


The Disability Accessibility directorate” was created under the Ontarians with Disabilities Act 2001. The McGuinty Government revamped and expanded its mandate one year ago under the Accessibility for Ontarians with Disabilities Act 2005.

Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006

Section 38 of Bill 107 provides:
38. (1) Subject to subsection (2), the Statutory Powers Procedure Act applies to a proceeding before the Tribunal.
Conflict
(2) In the event of a conflict, this Act, the regulations and the Tribunal rules prevail over the Statutory Powers Procedure Act, despite section 32 of that Act.” See also s. 41 of Bill 107.

Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006

Attorney General, Minister Statement, Second Reading debates on Bill 107, May 8, 2006

Ontario Human Rights Commission Annual Report, 2004-2005