Ontario Human rights Reform - A call to Action

DRAFT SUBMISSION TO THE STANDING COMMITTEE ON JUSTICE POLICY ON BILL 107, THE PROPOSED ONTARIO HUMAN RIGHTS CODE AMENDMENT ACT

PART I - OVERVIEW OF THE AODA ALLIANCE’S RESPONSE TO BILL 107

1. INTRODUCTION

(a) General

This is the submission of the Accessibility for Ontarians with Disabilities Act Alliance to the Ontario Legislature's Standing Committee on Justice Policy concerning Bill 107, the proposed Ontario Human Rights Code Amendment Act.

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is:

"To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act."

To learn more about us, visit: www.aodaalliance.org

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated for over ten years for the enactment of strong, effective disability accessibility legislation. Our new coalition exists to build on the work of the ODA Committee and to step into its shoes. We draw our membership from the ODA Committee's broad grassroots base. To learn about the ODA Committee's history, visit:

www.odacommittee.net

(b) Our Position on Bill 107

The AODA Alliance commends the Government for its desire to fix a seriously backlogged and slow human rights enforcement system. However, Bill 107 is itself seriously flawed. It will likely make things worse, not better. It needs to be substantially amended. This brief explains why and offers practical ways to improve the bill.

(c) Overview of this Brief’s Contents

This brief is divided into two parts. In Part I (the shorter part), we summarize our position on Bill 107 and how it should be amended. For those interested in our position, but not wanting to get into all the background and detail, Part I provides all the information needed. It:

summarizes what Bill 107 does.

summarizes the key problems with Bill 107.

explains the problems with the Government's process for developing Bill 107.

summarizes how to improve Bill 107, and

for those interested in far more detailed information, Part II, the longer part, gives an extensive explanation of each of the 49 amendments we propose. Accompanying this brief are appendices with important background materials to support our proposals. These include:

1. A list of the AODA Alliance’s 49 recommendations for amending Bill 107
2. The AODA Alliance's "Fact Check" on Official Statements about Bill 107
3. The AODA Alliances April 3, 2006 Discussion Paper on Options for Reforming the Ontario Human Rights Code.

2. WHAT BILL 107 DOES

The Ontario Human Rights Code makes it illegal for anyone in the public or private sectors to discriminate against a person because of his or her disability, sex, religion, race, sexual orientation or certain other grounds. It bans discrimination in access to things like employment and the enjoyment of goods, services and facilities. It requires employers, stores and others offering goods, services and facilities to accommodate the needs of disadvantaged groups protected by the Human Rights Code like persons with disabilities, up to the point of undue hardship. It requires organizations in the public and private sectors to remove existing barriers to persons with disabilities, and to prevent the creation of new ones.

The Human Rights Code is the bedrock underpinning the Accessibility for Ontarians with Disabilities Act, which is a new law that aims at achieving a barrier free Ontario for persons with disabilities within twenty years. The Human Rights Code didn't originally cover disability discrimination. People with disabilities fought long and hard to win these rights back in the late 1970s and early 80s.

How does one enforce these rights now? If a person believes an organization or individual (the respondent) has discriminated against him or her because of disability, race, religion, sex, age, or other protected ground, he or she (the complainant) can file a formal document called a "human rights complaint" with the Ontario Human Rights Commission. In that document the complainant explains the events they say amounted to unlawful discrimination.

Now the Human Rights Commission's job is to enforce the Code. One of its most important duties is to investigate human rights complaints, and to try to negotiate a settlement. Human Rights Commission investigating officers have powers to publicly investigate discrimination complaints.

If the Human Rights Commission investigates a human rights complaint, if it decides that the complaint has merit under the Code, and if it can't work out a voluntary settlement between the complainant and the respondent, its job is to take the case to a separate, independent Tribunal, the Ontario Human Rights Tribunal. At the Tribunal, the Human Rights Commission is the public prosecutor that prosecutes the case. It sends a publicly paid Human Rights Commission lawyer to present the complaint. Discrimination victims can also bring their own lawyer. Importantly, they don't have to.

Under Bill 107, if a person has been discriminated against, they will have to file a human rights complaint with the Human Rights Tribunal. They must investigate their own case. The Human Rights Commission loses its investigation powers.

To read Bill 107 visit:

http://www.aodaalliance.org/bill107.asp

To read the current Human Rights Code, visit:

http://www.aodaalliance.org/ohrc.asp

3. SUMMARY OF WHAT'S WRONG WITH BILL 107

The AODA Alliance strongly believes that Ontario's human rights enforcement system needs to be significantly improved. It is too slow and backlogged. This is because it has been seriously under-funded for years, and needs administrative reforms. The Commission’s gatekeeping function can benefit from procedural reforms to ensure that meritorious cases are taken forward to the Human Rights Tribunal. The Human Rights Tribunal also needs significant reforms.

However, Bill 107 doesn't provide an effective solution to these problems. It will make things worse, not better, for these reasons:

1. It abolishes discrimination victims' decades-old legal right to have the Human Rights Commission publicly investigate all non-frivolous human rights complaints, armed with legal investigation powers. It abolishes discrimination victims' right to have the Human Rights Commission publicly prosecute a human rights complaint if the evidence warrants it, and if the parties don't settle the case. In this way, Bill 107 takes away important rights that Ontario’s disability community fought for and won in 1982.

2. It lets the Human Rights Tribunal adopt rules that could deny the time-honoured right of all parties at a hearing to be represented by a lawyer, to call relevant evidence, and to cross-examine opposing witnesses.

3. For the first time, it lets the Human Rights Tribunal charge user fees for going to the Tribunal. It could expose human rights complainants for the first time to have to pay their opponent's legal costs at Human Rights Tribunal hearings if they lose. Now the Tribunal can only order the Human Rights Commission, not the discrimination victim, to pay the legal costs of the party accused of discrimination.

4. It dramatically reduces the right to appeal from the Tribunal to court. Now, anyone who loses their case at the Tribunal has the broadest right to appeal to court. Bill 107 lets the loser go to court only if the Tribunal ruling is proven to be patently unreasonable, a far tougher test.

5. It unfairly forces thousands of discrimination cases now in the human rights system, to start all over again in the new system, but without the benefit of the Human Rights Commission's help. Many spent years trusting that they could continue in the current system.

6. Contrary to major Government commitments, it doesn't ensure that every human rights complainant will have free publicly-funded legal advice and representation. It merely lets the Government fund legal assistance if it wishes. It doesn't require the Government to fund any, nor that Government funding be adequate. Cuts to funding can be as close as a provincial election or cabinet shuffle away. It doesn't entrench the Government's promised Human Rights Legal Support Centre. It doesn't require legal services to be delivered by lawyers.

7. It doesn't keep the Government's commitment that all discrimination victims will be given a hearing before the Human Rights Tribunal. It lets the Human Rights Tribunal throw out a discrimination complaint without a hearing, or defer a hearing.

8. It doesn't eliminate or reduce the chronic backlog of human rights cases. It shuffles the line-up from the Human Rights Commission to the Human Rights Tribunal. It doesn't set enforceable deadlines to ensure that cases are heard and decided within a reasonable time.

9. Contrary to Government commitments, Bill 107 significantly weakens, and doesn't strengthen the Human Rights Commission's ability to bring its own cases to challenge systemic discrimination. Now the Commission can launch its own complaints in any case (not just systemic cases). It has investigation powers to get evidence to support its case. It can seek sweeping remedies to compensate discrimination victims for past wrongs and to prevent future discrimination.

Seriously weakening the Commission, Bill 107 only lets the Commission launch its own case in systemic cases. It doesn't define "systemic." It abolishes the Commission's investigation powers. It stops the Commission from seeking remedies to compensate victims for past wrongs, even in systemic cases.

10. It largely privatises human rights enforcement. It removes the Human Rights Commission from most discrimination cases. This makes the Commission less effective and relevant when it does public policy, advocacy and public education.

11. It dramatically shrinks the human rights system's capacity to advocate for and protect the public interest. Now the Human Rights Commission can seek remedies both for individual discrimination victims, and to address the broader public interest. It can do so when settlements of cases are negotiated, and at Human Rights Tribunal hearings. In contrast, under Bill 107, the Commission won't be involved in negotiating most case settlements. It won't have carriage of or even be present at many if not most Human Rights Tribunal hearings.

12. By Bill 107, the McGuinty Government seriously breaks faith with 1.5 million Ontarians with disabilities. In the 2003 election, Premier McGuinty promised a new disability act with effective enforcement. After winning the election, the McGuinty Government rejected disability community requests to create a new independent agency to enforce the new disability act. The Government said it isn't needed since persons with disabilities can use the Human Rights Commission's complaints process to enforce their rights. The disability community applauded the new 2005 disability act, even though it created no new independent enforcement agency. Now Bill 107 removes most of the Human Rights Commission's public enforcement teeth.

This breach of faith isn't corrected by Bill 107's proposal to create in the Human Rights Commission a weak Disability Rights Secretariat. That Secretariat has no public investigation and prosecution powers. The Commission previously had a stronger version of that Secretariat.

4. THE GOVERNMENT'S FLAWED PROCESS FOR DEVELOPING BILL 107

The Ontario Government’s process for developing and enacting its legislation to reform the human rights system have been seriously flawed. The Government announced its plans for reforming the Human Rights Code at a February 20, 2006 news conference. It didn't first circulate any discussion paper or options paper to enable the broad range of stakeholders to give meaningful input before it decided on its reforms. It primarily consulted in advance with some lawyers interested in human rights issues.

After the Government's February 20, 2006 announcement, the AODA alliance and many other organizations called on the Government to hold an open, accessible public consultation before introducing a bill into the Legislature. Many community organizations complained about the lack of prior Government consultation, and noted that they had not been consulted. The Government didn't accept suggestions that it hold open public consultations before introducing a bill into the Legislature. In public statements it took the position that it had already sufficiently consulted.

To help the Government, the AODA Alliance developed and circulated its April 3, 2006 Discussion Paper on options for reforming the human rights process. (See Appendix 3.) It was hoped that this would enable the Government to consider a wider range of reform options, beyond its controversial proposals announced on February 20, 2006. Unfortunately, the Government never engaged in a substantive dialogue with the AODA alliance, or to our knowledge, with the broader public, on the options presented in this discussion Paper.

Despite many concerns being addressed to the Government about its plans after February 20, 2006, the Government introduced Bill 107 into the Legislature on April 26, 2006. The bill reflected the Government's February 20, 2006 announcement. It didn't remedy any of the many concerns that the AODA Alliance and many other community organizations raised with the Government about the Government's plans.

On June 8, 2006 the Attorney General said in the Legislature that he would be presenting amendments to the Standing Committee. In effect, he accepted that Bill 107 requires amendments.

In response, on June 28, 2006, AODA alliance Chair Catherine Dunphy wrote the Attorney General, asking the Government to make public its planned amendments. Among other things, she wrote:

"Second, we ask your Government to now make public the specific changes it contemplates proposing for Bill 107. On June 8, 2006, you stated in the Legislature that you intend to table amendments to the bill, to address such topics as the provision of legal services for discrimination victims. Your Government has now had more than four months to develop its plans for such important issues as legal representation for discrimination victims, since you first announced your plans for the Human rights Code last February.

The public needs this information now in detail, so that it can develop and give effective input and feedback on your plans at the Standing Committee hearings. If the Government withholds this information from the public until after the Standing Committee's public hearings are completed, this would deny the public a fair chance to be properly consulted on your current plans. We commend to you the Toronto Star's June 12, 2006 editorial, which called on your government to make your plans, including your budget plans, public as soon as possible."

The Government's process for dealing with this bill has not been barrier-free. At the Attorney General's April 10, 2006 meeting with an AODA Alliance delegation, the Attorney General committed to give the disability community at least two days' notice of his plan to introduce his bill. People with mobility disabilities need this notice to be able to arrange accessible public transit. Despite this, the Government gave only one day's notice. This created a serious barrier to persons with mobility disabilities getting to the Legislature for Bill 107's First Reading proceeding.

5. SUMMARY OF HOW TO IMPROVE BILL 107

It would be better if the Government started from scratch, held a proper time-limited public consultation, and then introduced an appropriate human rights reform bill. The AODA Alliance's April 3, 2006 Discussion Paper on Options for Human Rights Reform set out in Appendix 3 would form a good basis for consultations.

However, if the Government presses Bill 107 forward, changes should be made to the bill to address these themes:

(a) Amend it to ensure that it doesn't take away any rights the Human Rights Code now gives.

(b) Amend it to ensure it does what the Government says it does, and

(c) Ensure that Bill 107 doesn’t breach the Ontario Government’s understanding with Ontario’s disability community over enforcement of the Accessibility for Ontarians with Disabilities Act, regarding the continued availability of the Human rights Commission’s investigation’s enforcement powers.

To achieve this, the AODA Alliance proposes amendments to:

1. let complainants choose to take their case right to the Human Rights Tribunal, or to opt for the Human Rights Commission to investigate their case, and to prosecute if evidence warrants.

2. guarantee all complainants a publicly-funded lawyer at all Tribunal proceedings.

3. ensure that all complainants opting for direct access to a hearing get a hearing within 90 days of filing their claim, that the Tribunal can’t dismiss or defer a case without a hearing, and impose enforceable deadlines for major steps in the proceeding.

4. Ensure hearings are fair, e.g. stop the Tribunal, the judge, from also being the investigator.

5. strengthen, not weaken, Commission enforcement powers, including expanding its role to monitor and enforce Tribunal orders, and to plan for removal and prevention of barriers in the human rights process.

6. Involved the Commission in all cases, at settlement discussions and at Tribunal hearings, to advocate, e.g. for the public interest and for public interest remedies.

7. give the Disability rights and Anti-Racism Secretariats meaningful enforcement powers. expand the remedies the Tribunal can order.

8. make the Commission meaningfully independent of Government.

9. let complainants retain their right to appeal to court if they lose at the Tribunal.

10. ensure the public has input into any Tribunal rules.

11. make mediation available, without forcing it on those not wanting it.

12. protect discrimination victims from financial barriers like user fees.

13. ensure that cases now in the human rights system are completed under the current Code, and needn’t start all over under Bill 107.

14. If the Commission’s mandate over disability rights isn’t preserved, establish a strong, effective independent enforcement agency under the Accessibility for Ontarians with Disabilities Act, including power to receive, investigate and prosecute disability discrimination cases.

15. ensure periodic public reviews of the Code’s effectiveness.

(Note a full list of the 49 recommendations without analysis is in Appendix 1)

PART II - DETAILED EXPLANATION OF PROPOSED AMENDMENTS

In this part of this brief, a detailed explanation is provided for each amendment to Bill 107 that is being proposed.

I. VICTIMS SHOULD RETAIN THEIR RIGHT TO A PUBLIC INVESTIGATION

The Human Rights Code now gives every discrimination victim who files a timely and non-frivolous complaint the right to have the Human Rights Commission publicly investigate his or her human rights complaint. If a complaint cannot be resolved between the parties through mediation, the Commission must investigate the case.

Section 33 of the Code now gives the Commission extensive investigatory powers, including the ability to enter businesses, to interview witnesses, to request documents, and to seek a search warrant to compel access to relevant documents and other physical evidence.

Under the current Code, based on its investigation, the Commission is required to decide whether a Human Rights Tribunal hearing is warranted in a case that isn't voluntarily settled by negotiation. The Commission can refer the case to the Tribunal for a full hearing on the complaint.

At the Human Rights Tribunal hearing, the Commission is the public prosecutor. The Commission has carriage of the case to prove that the complainant was the victim of discrimination. The Commission interviews and calls the witnesses. The Commission is supposed to argue that the discrimination took place. The prosecutor therefore effectively represents the complainant's interest as well as that of the public.

If expert witnesses are needed, (which is increasingly the case in human rights cases), the Commission is responsible to find appropriate experts, to hire and pay them, and to present their evidence. Expert witnesses can be very expensive.

Under the current Code, the complainant has the right also to have a lawyer present at the hearing, to call witnesses to testify, and to cross-examine witnesses who testify against the complainant. However, the complainant doesn't have to do any of this if she or he doesn't want.

In contrast, Bill 107 would totally abolish the complainant's right to have his or her case investigated by the Human Rights Commission. Bill 107 would repeal s. 33 of the Code. That takes away from the Commission its power and duty to investigate human rights complaints. Bill 107 would force all discrimination victims to go directly to the Human Rights Tribunal, without a prior Human Rights Commission public investigation of their human rights complaint.

A few very rich complainants can afford to pay for their own lawyer, for their own investigation and for their own expert witnesses. They may prefer Bill 107 because it will let them go right to the Human Rights Tribunal. They may want to take their case directly to the tribunal, without the Human Rights Commission's help.

Far more complainants can't afford lawyers and investigators. They now rely on the Commission to investigate their complaint. Under Bill 107, discrimination victims will have to do their own investigation. They will have to gather their own evidence, identify their own witnesses, and hire their own experts. This creates a serious barrier to vulnerable discrimination victims enforcing their rights. Discrimination victims can suffer serious emotional harm due to the violation of their human rights. The government shouldn’t expect such individuals to investigate their own claims.

Bill 107 takes away a decades-old fundamental statutory entitlement to a publicly funded investigation. Victims of discrimination should not lose rights in any human rights reform. If the Government insists on amending the Code to provide so-called "direct access" to the Tribunal, it should give human rights complainants the choice between going directly to the Tribunal, and asking the Human Rights Commission to investigate and prosecute their case.

If the Government is convinced that the so-called "direct access" route is so attractive, it loses nothing by giving Ontarians the option of either direct access, or exercising their decades-old legal right to a public investigation and where warranted, public prosecution of their case by the Human Rights Commission. If discrimination victims prefer to go the Commission route, then the Government shouldn't take that right away from them.

The option of giving Ontarians their choice of route is a more reasonable middle ground than the Government's proposal of abolishing the public enforcement regime that Ontarians now enjoy, and forcing them down a different road.

It is therefore recommended that:

#1. Bill 107 should be amended so that it does not repeal the Commission's powers under Part III of the current Code to investigate, conciliate, and where warranted, prosecute human rights complaints.

#2. Bill 107 should be amended to give human rights complainants the option of either taking their complaint directly to the Tribunal, or lodging it with the Human Rights Commission, with access to all the public investigation, mediation, conciliation and public prosecution powers and duties that the Code now provides.

II. ENSURE FULL LEGAL SUPPORT AT TRIBUNAL HEARINGS

The current Human Rights Code gives every victim of discrimination who proceeds to a hearing at the Human Rights Tribunal the right to assistance in the form of the Human Rights Commission, represented via the Commission's legal counsel, serving as the public prosecutor. At Tribunal hearings, the Commission now has carriage of the complaint. The Commission's role is to show that the complainant was the victim of discrimination.

At the Tribunal, each complainant also remains a party to the hearing. He or she can also participate actively by having their own lawyer, calling witnesses, cross-examining opposing witnesses, and presenting argument to the Tribunal.

By eliminating the Commission's role in investigating and referring complaints to the Human Rights Tribunal, Bill 107 also eliminates the role of Commission counsel as lead public prosecutor at all Tribunal hearings into human rights complaints that discrimination victims have brought. This has serious negative consequences:

A. IT LEAVES DISCRIMINATION VICTIMS WITHOUT ASSURED, EXPERT PUBLICLY-FUNDED LEGAL SUPPORT AT TRIBUNAL PROCEEDINGS.

The Attorney General has repeatedly made the sweeping promise that under Bill 107, all those who bring complaints to the Human Rights Tribunal will receive publicly-funded full legal representation regardless of the complainant's income. On April 26, 2006, in the Ontario Legislature, during First Reading of Bill 107, Attorney General Michael Bryant said that with Bill 107 all Ontarians, regardless of income or personal circumstances will be assured full legal representation throughout the Human Rights Tribunal process. He said he's establishing a new Human Rights Support Centre to serve all Ontarians. He said:

"Today, with this bill, we would add a third pillar to the human rights system: full access to legal assistance. We would establish a new human rights legal support centre to provide information, support, advice, assistance and legal representation for those who are seeking a remedy before the tribunal."

During Question Period in the Legislature on May 8, 2006, Attorney General Michael Bryant stated: “Let me start by saying that there's no question that providing public legal support through the human rights legal support office is a critical component of the human right reforms that we have brought forward to this Legislature, the debate of which will begin today. There's no question that, as we propose movement to a direct-access system, which, in the words of the NDP task force chair, Mary Cornish, is a consumer-oriented-one might say victim-oriented-system, we need to ensure that we have the supports there for them: absolutely; no question; full stop... This is something that needs to be entrenched by way of legislation.”

During Second Reading debates on Bill 107 on May 8, 2006, Attorney General Michael Bryant stated: “The vast majority of people who bring forward a complaint get no legal representation and we are replacing it -- and this is the point -- we are seeking to replace it with a system where they do get legal representation, where you don't have a matter taken over by the commission and thereafter become a bystander, but you in fact are provided with legal representation and then you direct the complaint, as with every other complaint that comes before our justice system in the administrative law world.”

On June 8, 2006, during Question Period, Liberal MPP Deborah Matthews asked the Attorney General if he would take steps to ensure that legal supports for human rights complainants are further entrenched in Bill 107. Attorney General Michael Bryant’s response included: “We have committed to providing full legal supports to all Ontarians who turn to their human rights system, at the same time as the Human Rights Commission goes forth and, on behalf of all Ontarians, addresses systemic issues, both on behalf of the commission and before the tribunal. Section 46 of the bill does make reference and entrenches the first-ever human rights legal support centre, but the McGuinty government recognizes the need for clarity and endeavours to bring even greater clarity to this bill, long overdue, and this reform, long overdue. So to answer the question directly, we do intend proposing amendments at the appropriate time to section 46 in order to bring even greater clarity, not only to section 46 but to the entire human rights process, and we look forward to hearing from all Ontarians and all members of the committee on that front.”

Earlier, at an April 10, 2006 meeting with representatives of the Accessibility for Ontarians with Disabilities Act Alliance, the Attorney General agreed that complainants shouldn't face a Tribunal hearing without legal representation. The AODA Alliance confirmed this in the April 12, 2006 letter to the Attorney General from AODA Alliance chair Catherine Dunphy, which stated:

"For example, you said you would make sure that appropriate legal support is provided to everybody who needs it, and that the goal is to provide everyone with representation.

You also agreed a complainant mustn't face a Tribunal hearing without legal representation."

Contradicting these promises, Bill 107 gives no guarantee of any publicly-funded legal representation for human rights complainants. The bill makes only one very weak reference to legal support. Section 46.1 of the bill merely states that the Attorney General may sign agreements to pay yet-unnamed organizations to provide legal advice or representation. The Attorney General need never agree to provide any funding. He or she could refuse to renew funding, even if initial funding is agreed to. Cuts to this funding could be as near as a provincial election or a Cabinet shuffle away.

Some complainants can afford to pay for their own lawyer. The majority of discrimination victims cannot. Under Bill 107's system, with the Human Rights Commission unable to investigate cases and largely unavailable to prosecute them, it will be impractical for most to pursue a human rights claim without effective legal assistance and support. Most discrimination victims don't know how to use the human rights system. Fewer will know how to navigate Bill 107's newer system. Many will find the prospect of proceeding alone terrifying. It is unfair to expect any discrimination victims to represent themselves at a Human Rights Tribunal hearing, particularly when they must face the person or organization that discriminated against them.

Members of equality-seeking groups have the most to lose if they are denied effective state-funded legal representation by lawyers for their case. As they are among the most marginalized in our society, and are over-represented among the poor, for the most part they do not have the resources themselves to undertake or finance the legal advocacy which the Commission is now statutorily obliged to undertake at all Tribunal hearings.

It is all the more important to ensure that at all Tribunal proceedings, the complainant's perspective is addressed by a publicly-funded lawyer, considering the resources available to most respondents. Landlords, service providers, employers, or government departments and agencies usually have their own lawyer. It is not unusual at Tribunal hearings for respondents to be represented by some of Ontario's largest law firms. They vigorously defend the respondent, making every objection and argument imaginable. If the discrimination victim does not have equal lawyer support, they will be at a serious disadvantage.

The Cornish and LaForest Reports on human rights reform, which the Government says this bill implements, emphasize that it is vital for human rights complainants to have effective representation at Tribunal proceedings, if a direct access model is to succeed. The Cornish Report stated:

"The public commitment to funding representation for human rights claims is crucial and should be continued. It represents an important statement by Ontarians that discrimination is a societal problem requiring publicly funded solutions.

Second, many if not most people who make a human rights claim need assistance and support. Often they feel hurt, angry, confused and afraid. Without assistance, they cannot enforce their rights. Opening up access to a hearing may be a hollow achievement if support and advocacy are not provided.

...

A third reason why advocacy services are essential is that, without them, the hearing process for rights claims at the Equality Rights Tribunal will have difficulty functioning efficiently and fairly. While staff of the new Tribunal can and should provide information about how their system works, it would be wrong to suggest that they can fill an advocate role. In order for claims to proceed efficiently at the Tribunal, claimants must have access to trained, publicly funded advocacy services.

Properly trained advocates will not only help prepare claims to go before a hearing, but will also assist in resolving claims through various means of mediation. They will refer people to other services if the issue they raise does not come under the Code."

Similarly, the LaForest report found:

"In our view, providing assistance to claimants is key for the direct access model to be successful. As noted above, the experience in the United Kingdom and Québec have shown that unrepresented claimants are rarely successful, partially because respondents are often large well-resourced corporations or governments. This will be particularly true in the federal sector. The practical result of no assistance would be to deny access. The Human Rights Tribunal process is often complicated and requires experience in human rights in order to assemble and argue a case successfully. In the human rights context many claimants do not speak either official language or have disabilities that may make it difficult for them to access the system. Unrepresented claimants would require more time at the Tribunal hearing. Counsel can help keep the proceedings moving and reduce costs of lengthy hearings."

It is also important that at a Tribunal hearing the "legal support" that a complainant receives is provided by a lawyer. Non-lawyers, such as paralegals or community legal workers, are not able to provide the level of service needed at a hotly-contested hearing. As noted above, respondents are typically represented by a skilled, well-financed private law firm.

Bill 107 in effect takes away a fundamental entitlement to a publicly funded prosecutor. Again, victims of discrimination should not lose rights in any human rights reform process. If the Government insists on amending the Code to provide direct access to the Tribunal, it must entrench the provision of full legal support by lawyers in the bill. It is important that the bill be amended to make it do what the Government says it does. The Government’s commitments, which are very substantial in scope, have raised community expectations.

It is therefore recommended that:

#3. Section 46.1 of the bill be amended to provide that every human rights complainant has the right to publicly-funded effective legal representation by a lawyer in proceedings at the Human Rights Tribunal from the outset of the complaint through and including all appeals and the enforcement of any Tribunal order.

B. BILL 107 DOESN'T INDICATE THE FORM OF LEGAL SUPPORT TO BE PROVIDED

Although the Attorney General promised guaranteed legal support for complainants, Bill 107 provides no description of the form that the legal support may take or the responsibilities of any agency established to provide support. As shown above, the Attorney General stated that Bill 107 entrenches a new Human Rights Legal Support Centre that will be established and that will be unique in Canada.

As noted above, there is no guarantee of legal support in the Bill. The bill doesn't require that a new Human Rights Legal Support Centre ever be established, or that if established, it be sufficiently funded, and if funded, it not be shut down in the future. As such, even if the Government were to set up its promised Human Rights Legal Support Centre, there is no assurance that that Centre will have the capacity to handle all the people who need advice and legal representation without undue delay. Without a guarantee of timely legal support, any centre or other support provider set up by the Attorney General may be dismantled or de-funded at any time.

The bill also doesn't guarantee what relationship this promised new Human Rights Legal Support Centre would have to the Government. It is vital that any organization that provides legal representation and support for human rights complainants be entirely independent of the Government of the day. It must also be free from Government threats to its funding. The Government is one of the major bodies that the Human Rights Commission now can and does investigate and prosecute. The Government is defended in human rights legal proceedings by the Attorney General's ministry. That same minister should not have control over the purse-strings of the very legal representatives that litigate human rights claims against the same Government and ministry.

A Toronto Star June 5, 2006 editorial pointed out some of Bill 107's serious flaws in this regard. It stated in part:

"But Bryant still needs to fill in some crucial details.

First, he must assure Ontarians that all legitimate claims would have a fair hearing regardless of the financial resources of the complainant by making concrete provisions for publicly funded legal support.

Second, he must show he has budgeted enough money for the staff and resources required to make the new system really work. Under the current system, the commission shepherds complaints through the process. That means people with little money do not have to hire a lawyer because they can rely on the expertise of commission staff.

Under the proposed system, a new human rights legal support centre would offer "full legal support," including representation at hearings, to people who file human rights complaints at the tribunal. Bryant says there would be no means test. He also says services would be delivered by lawyers. But the catch is that he has not worked out yet whether they would work at legal clinics, in the private sector or for government. This uncertainty around the legal support centre is troubling. The proposed legislation does not explicitly provide for such a centre, let alone spell out what services it would offer. This is too important to leave until later. It must be settled as soon as possible. Ontarians must have confidence the new system will be accessible to all, regardless of their income.

Vagueness about the budget only adds to the uncertainty. The government now spends $13 million a year on the human rights system. It has pledged up to $2 million extra for the transition period. But it has yet to spell out how it will divide the cash between the revamped tribunal and commission, and the new legal support centre. Critics fear there will not be enough money or staff to help people with claims navigate the system.

Vulnerable people should not have to take it on faith that Queen's Park will protect their interests. That's why Bryant must address these uncertainties as soon as possible so that his well-intentioned attempt to improve a broken-down system will have the confidence of all who use it."

It is therefore recommended that:

#4. Bill 107 be amended to require that government decisions over the funding of legal representation must be reported to and approved in advance by the Legislature.

#5. Bill 107 be amended to require that a special all-party committee of the Legislature with equal representation from all political parties shall annually review the Government's funding for legal services for human rights complainants, and shall make recommendations to the Legislature regarding the level of funding for the following year.

III. BILL 107 DOES NOT GUARANTEE ACCESS TO HEARINGS

Some, and especially those who support the Government’s plans for human rights reform, argue that the Human Rights Commission does not send enough meritorious cases to the Tribunal for a full hearing. They object to the Commission’s broad gatekeeping function which lets it decide whether a hearing is needed. They argue that it is important that all cases, which are brought in good faith be fully heard by the Human Rights Tribunal. They have claimed that no one should have their human rights complaint dismissed without a hearing.

The Government claims that Bill 107 responds to that line of argument. The Attorney General promised that Bill 107 gives all human rights complainants a so-called guarantee of “direct access” to the Human Rights Tribunal. He stated that Bill 107 guarantees that everyone will get their day in court.

However, Bill 107 doesn't ensure this. It doesn’t do what those who support the Government’s plans had called for, and what the Government said it planned to do.

A. BILL 107 DOES NOT PROVIDE A RIGHT TO A HEARING

Bill 107 doesn't assure a right to a hearing to every complainant. To the contrary, s. 41 of Bill 107 lets the Tribunal dismiss a complaint on several grounds without holding a hearing, including some of the same grounds the Commission currently uses to dismiss cases without a full hearing. It doesn’t eliminate the gatekeeper. It merely moves the gatekeeper to the Tribunal, and judicializes this function.

Furthermore, section 34 of Bill 107 lets the Tribunal adopt rules that provide that the Tribunal need not hold a hearing. Also, s. 40 of Bill 107 gives the Tribunal sweeping powers to defer a hearing.

The AODA Alliance has not endorsed the so-called “direct access” model for human rights enforcement, due to concerns explained throughout this brief. However, to make Bill 107 do what the Government claims it does, to prevent the undue judicialisation of the gatekeeping function, and to remove a new procedural barrier at the Tribunal that Bill 107 would create, it is therefore recommended that:

#6. Bill 107 be amended to eliminate the Tribunal's power to dismiss or defer a human rights complaint without first holding an oral hearing.

B. BILL 107 PROVIDES THAT VICTIMS MUST PARTICIPATE IN MEDIATION

Under the current Code, the Human Rights Commission must attempt to conciliate a complaint. Among other things, the Commission offers mediation services. The Tribunal also offers voluntary mediation services.

Under the current system, mediation is voluntary. Mediation can be very constructive and can resolve many complaints. However, it is not suitable to all cases. If a respondent simply wants to use the mediation process to drag out the case and wear down the complainant, mediation can superficially appear useful, but in fact set human rights enforcement back. In some cases of severe workplace harassment on grounds like disability, race, religion or sex, for example, mediation may not be appropriate.

Section 37(1) of Bill 107 for the first time lets the Tribunal force the parties to participate in mediation, even if they do not want to do so. Rather than providing a direct route to a hearing, this section provides that the Tribunal may delay a hearing and require a mediation process. Forced mediation can be frustrating, wasteful, and even harmful to a complainant. Bill 107 should not strip from complainants their current right not to be forced into mediation if they object to taking part in it.

It is therefore recommended that:

#7. Section 37 of Bill 107 be amended to provide that the Tribunal shall offer mediation services, but that the parties have the right to decline to take part in them, without prejudice to any right to a hearing they enjoy under the Code.

C. BILL 107 DOES NOT IMPROVE THE EXISTING LIMITATION PERIODS

The Code now provides that a discrimination victim must file a human rights complaint within six months of the incident giving rise to the complaint. The commission can only grant an extension for complainants who filed late in good faith, absent substantial prejudice to the respondent. This unusually short limitation period threatens to leave ill-informed discrimination victims unable to bring their complaints.

Bill 107 perpetuates this six-month limitation period. Yet there is no good reason why the deadline for filing a human rights complaint should remain so short. Many civil claims have far longer, two- or even seven-year limitation periods.

There are many reasons why a complainant may miss a six-month deadline. Discrimination victims may suffer serious emotional and psychological impacts as a result of their experience. This, combined with possible financial harm suffered via the loss of a job, housing, or a service, may leave a victim in a very unstable position, where the basics of daily living must be a priority. It may take many months before a person reflects on their experience and decides to take action. Other victims may not realize that they have suffered a human rights violation or they may tolerate the violation in the hope of retaining their job or home.

It is therefore recommended that:

#8. Bill 107's new s. 35 be amended to extend the deadline for filing a human rights complaint to two years, while retaining the power to extend this period if delay was incurred in good faith and caused no substantial prejudice.

IV. BILL 107 CREATES NEW FINANCIAL BARRIERS FOR COMPLAINANTS

The current Code doesn't authorize the Commission or Tribunal to charge discrimination victims a user fee for filing a human rights complaint, or for having a hearing before the Human rights Tribunal. Moreover, the Human Rights Tribunal is not empowered to order the complainant to pay the respondent's legal costs, even if the Tribunal decides that the respondent didn't discriminate against the complainant.

The complainant's current freedom from exposure to user fees and from being ordered to pay the respondent's legal costs at the Tribunal is an important element of an accessible human rights system. Many if not most discrimination victims are low or middle income earners.

Bill 107 permits the creation of serious new financial barriers to access to justice for discrimination victims because, for the first time, it permits a human rights complainant to be charged Tribunal user fees, and to be ordered to pay the respondent's legal costs.

A. LEGAL COSTS

Under the current Code, costs orders cannot be made against a complainant whose case is lost at the Human Rights Tribunal.

In addition, under the current Code, if a respondent goes to court, either on appeal or via a judicial review application, it will name the Commission as a party to the court proceeding. If the Commission defends the appeal or judicial review application, and is unsuccessful, it is the publicly-funded Human Rights Commission, not the complainant, whom the court typically orders to pay the respondent's court legal costs. Those court legal costs can amount to thousands and even tens of thousands of dollars.

Bill 107 gives the Tribunal sweeping power to make procedural rules. Under this power, the Tribunal could make rules that let the Tribunal order the complainant to pay the respondent's legal costs if the respondent wins the case at the Tribunal.

Under Bill 107, the Human Rights Commission will no longer be a party to many, if not most Tribunal proceedings. Under Bill 107, if the complainant loses his or her case at the Tribunal, it will be only the complainant, and not the Commission, who could be exposed to pay the respondent's legal costs. If the complainant wins at the Tribunal, but the respondent successfully challenges this victory in court, again it will be the complainant, and not the Commission, who will be exposed to pay the respondent's court legal costs.

This financial risk could deter many discrimination victims who have a good case from filing a human rights complaint. They will have no assurance in advance that they won't have to pay thousands of dollars in legal costs, if the Tribunal isn't convinced that the respondent discriminated against them.

It is therefore recommended that:

#9. Bill 107 be amended to provide that the Tribunal may not order a complainant to pay legal costs at the tribunal, and that a court may not order a complainant to pay legal costs on a judicial review application, or (if appeals to court aren't abolished by Bill 107) on an appeal to court.

B. USER FEES

Under the current system, a complainant pays no user fees to access the human rights enforcement system. For the first time, Bill 107 would permit the Tribunal to charge discrimination victims and others user fees. This too will be a potentially serious deterrent to discrimination victims enforcing their human rights, especially for the poor. These twin financial deterrents fly in the face of the Government's stated objective for Bill 107, that being to increase access to justice for discrimination victims.

It is therefore recommended that:

#10. Bill 107 be amended to eliminate s. 45.2, and to prohibit the Tribunal from charging user fees.

V. BILL 107 DOES NOT GUARANTEE A FAIR HEARING

While the Attorney General promotes Bill 107 as providing direct access to the Human Rights Tribunal, this would be no benefit to complainants especially if the tribunal hearings are unfair.

A. BILL 107 DOES NOT ENSURE THAT TRIBUNAL MEMBERS ARE EXPERT IN THEIR FIELD.

In Bill 107's new human rights enforcement system, which removes the Human Rights Commission from most tribunal hearings, it is even more essential that all Human Rights Tribunal members are experienced and/or trained in the fields of human rights and administrative procedure. Tribunal members must have enhanced expertise if the Tribunal is to take on sole responsibility for the conduct of fair hearings, unassisted by an experienced public prosecutor like the Human Rights Commission.

The Tribunal's human rights expertise needs to be strengthened and enhanced, whether or not Bill 107's radical new human rights enforcement system is adopted. The Supreme Court of Canada has determined that the Human Rights Tribunal doesn't have specialized expertise in general law, such as the interpretation of the Human Rights Code. It has expertise only in fact-finding. (Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554) The need for its expertise to be enhanced is even greater, if Bill 107 is to give the Tribunal its greatly-expanded mandate and powers.

Now, Tribunal members are politically appointed. There is thus a need for an arms-length process to vet or assess appointments to the Human Rights Tribunal. It should aim to ensure that appointments to the Tribunal are based on competence and expertise, and that political considerations are eliminated from the process as much as possible.

It is therefore recommended that:

#11. Bill 107 be amended to establish an arms-length, non-partisan process for screening appointments to the Human Rights Tribunal and Human Rights Commission based solely on merit and expertise.

B. BILL 107 WRONGLY EXEMPTS THE TRIBUNAL FROM THE STATUTORY POWERS PROCEDURE ACT

For a hearing to be fair, the parties to the hearing must enjoy certain basic, inalienable rights. These rights have been time-honoured and time-tested. These include for example the following: A Party can bring a lawyer to represent them. A party can call relevant witnesses. A party can cross-examine witnesses who testify for the other side. A party is entitled to advanced specific notice of any charges of misconduct against them.

In Ontario, during hearings held by non-court Tribunals, these rights are specifically spelled out in a fundamentally important statute called the Statutory Powers Procedure Act (SPPA). These rules are summarized by the term "due process."

Under the current Code, Human Rights Tribunal hearings must conform to the rules in the SPPA. In sharp contrast, s. 38 of Bill 107 would effectively exempt the Human Rights Tribunal from the SPPA. It gives the Tribunal power to make rules of procedure for the Tribunal's hearings which can override and disregard the SPPA. This is a potentially arbitrary power the Human Rights Tribunal doesn't now have. The right to a fair hearing should never be sacrificed for expediency's sake.

Bill 107 would give the Tribunal the extraordinary power to meet privately and make rules of procedure that contravene the SPPA. The Tribunal need not consult with the public, or give the public any prior notice or opportunity for input, before making these rules. These rules do not need to be approved by the provincial Legislature or Cabinet. The Tribunal members who would be given the power to override the democratically-enacted SPPA are themselves not elected or otherwise democratically accountable for their actions when making these rules. In contrast, under the Accessibility for Ontarians with Disabilities Act 2005, before accessibility standards or several other kinds of regulations can be enacted, there is a legal requirement for gathering public input.

On May 8, 2006, during Second Reading debates on Bill 107, Attorney General Michael Bryant said that one of the goals of this bill's reform is to provide due process to those who appear before the Human Rights Tribunal. He stated:

"The purpose of a direct-access system, I have said before, is partly to address the delays and the inability of the commission to deal with systemic issues, but it is also partly to provide access to those, give that due process and give timely justice to those who appear before the Human Rights Tribunal."

It is therefore recommended that:

#12. Section 38 of the bill be amended to provide that the Tribunal may not make rules that override or are inconsistent with the Statutory Powers Procedure Act.

#13. The Bill be amended to provide that, before the Tribunal may make rules, it must publicly post a draft of the rules, invite public input, and consider that input before finalizing the rules.

C. TRIBUNAL AS INVESTIGATOR

The current Code uses a model for the Human Rights Tribunal which mirrors that of most Canadian courts and tribunals. It is called an adjudicative model. The Tribunal is the judge. It is supposed to be an impartial decision maker. It decides the case based on evidence and argument that the contesting parties present to it. The Commission, and not the Tribunal, is the investigator.

In sharp contrast, courts in some other countries (such as some in Europe) follow an inquisitorial model. In such a model, the judge is also an investigator. The differences between the adjudicative and inquisitorial systems are vast.

Bill 107 and some of the public pronouncements surrounding it raise the possibility that the Government envisages that the Human Rights Tribunal might undertake some of its own investigative functions and allow tribunal employees to give evidence at a Tribunal hearing. However, the Government has not made its intentions clear. If it does intend to make the radical move of converting the Human Rights Tribunal from an adjudicative tribunal to an inquisitorial one, it should now explain in detail why it is considering this change. The Government should also give the public an opportunity for input, before the Government decides on such a dramatic transformation.

It is inappropriate for the Tribunal to be in the investigation business. It is important for the investigation function to be totally separate from and independent of the Tribunal that is the judge in human rights cases. For the Tribunal to take on the investigation role in hotly-contested human rights cases threatens the impartiality of the Tribunal's hearing process. It raises serious concerns about procedural fairness to the parties.

It is therefore recommended that:

#14. The new s. 32 of the Code, as created by Bill 107, be amended so that it does not give the Tribunal power to make rules that would permit Tribunal employees to testify at a hearing.

#15. The bill be amended to ensure that the Tribunal, which is the judge in human rights cases, cannot also give itself the power to be the investigator in human rights cases.

VI. BILL 107 RADICALLY REDUCES THE COMMISSION'S ABILITY TO RAISE PUBLIC INTEREST CONCERNS THROUGH THE TRIBUNAL

Under the current Code, the Human Rights Commission has broad powers to investigate any kind of violation of the Human Rights Code. When an individual brings a complaint to the Commission, The Commission's investigators and mediators can explore both the individual and more systemic aspects of the complaint. Very often a complaint that, at first blush, appears to focus on the victimization of an individual, can be just the tip of a systemic iceberg.

Under the current Code, even if no individual brings a case to the Commission, the Commission also has very broad power to be pro-active as a law-enforcer. It can initiate its own investigations in any cases it wants under the Code, to raise issues of concern, whether or not these issues are pre-labeled "systemic."

The current Code is built on the fundamental foundation that human rights violations are a public wrong, not just a private injury inflicted on a private individual. The public has a strong interest in seeing discrimination victims made whole for their losses, and in ensuring that discrimination is prevented from recurring in the future. Under the current system, the public interest is advanced by the fact that:

i. a public investigator is required to investigate every non-frivolous human rights complaint within the Commission's jurisdiction;

ii. a public prosecutor is present at every Human Rights Tribunal proceeding, to support the complainant's interests and to advocate for the public interest. The contest is not simply between a private complainant and the respondent;

iii. At any settlement discussions, the Commission is mandated to seek settlement agreements that include terms that address public interest remedies, not just remedies for the individual complainant.

In contrast, Bill 107 dramatically reduces the human rights enforcement system's capacity to promote the public interest in human rights cases. Bill 107 eliminates the Commission's role in investigating, mediating and prosecuting complaints of Code violation in any case where an individual brings forward a human rights complaint. Bill 107 makes a narrow exception for systemic issues which may arise in a complaint. Where there is a systemic aspect to a complaint, the Commission has a limited ability to participate. Numerous concerns arise from the current proposal.

A. BILL 107 EXCESSIVELY LIMITS THE COMMISSION'S ROLE TO "SYSTEMIC" ISSUES.

Under the current system, for the Commission to be involved in a case, there is no need to specifically categorize a case's issues as "individual" or "systemic." The Human Rights Commission as investigator, conciliator or public prosecutor can address all issues which arise from a complaint. Every violation of the Code is treated as potentially raising societal concern.

Bill 107 effectively limits the Commission's mandate and prosecutorial powers or focuses it on "systemic" matters. This is based on the false premise that from the outset, human rights cases and issues can be easily divided into either of two categories, either "systemic" cases or "individual" cases. The Supreme Court of Canada has called into question comparably unhelpful efforts at splitting human rights claims into different categories. (See British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) [1999] 3 S.C.R. 3, at para. 33 and following.) The Bill's provisions then design parts of the human rights system on the basis of this problematic categorization of human rights cases. Making things worse, Bill 107 doesn't define "systemic" matters.

It is fundamentally wrong to design a human rights enforcement system on this elusive and unhelpful categorization of human rights cases. Those individuals who are victimized don't present themselves to the human rights enforcement system with a label of "systemic complaint" or "individual complaint" stamped on them. A case might begin as a single report of a seemingly isolated incident. If properly investigated, a broader pattern of discrimination could be revealed, or a deep-rooted, hitherto-unseen practice can have produced this result. Many, if not most so-called "systemic" cases come to light because an individual complained about an individual incident of mistreatment.

It is therefore recommended that:

#16. Bill 107 be amended throughout to remove any reference to "systemic" issues, discrimination or cases, as a criterion for any case, remedy, proceeding, or jurisdiction.

B. BILL 107 INAPPROPRIATELY LIMITS THE HUMAN RIGHTS COMMISSION'S POWER TO INITIATE ITS OWN HUMAN RIGHTS COMPLAINTS

The Code now lets the Commission initiate its own human rights complaint, even if it has no individual discrimination victim to name. The Commission now doesn't have to prove that a complaint it initiates fits into the elusive category of so-called "systemic" cases.

The Government claims that Bill 107 strengthens the Human Rights Commission's power to initiate its own complaints. In fact, Bill 107 significantly restricts the Commission's existing power to launch its own complaint. Section 36 of Bill 107 allows the Commission to launch its own human rights complaint only in cases of a "systemic" nature, without defining the term "systemic."

Moreover, Bill 107 only lets the Commission initiate its own human rights complaint when certain statutory requirements are met. It must be of the opinion that it is in the public interest to launch the complaint and it that it has not been able to adequately address the issue under the Code's new Part III. (See Bill 107 s. 36(1).) The current Code doesn't impose these requirements on the Commission.

Even if the Commission overcomes these new hurdles, Bill 107 weakens the Commission by taking away its important statutory investigation powers, now found in s. 33 of the current Code.

It is therefore recommended that:

#17. Section 36 of Bill 107 be amended to permit the Human Rights Commission to initiate its own complaint in any case, regardless of whether it is a systemic case and not subject to any additional requirements.

#18. Bill 107 be amended to provide that no party can challenge the Human Rights Commission's decision to initiate its own human rights complaint, so long as the complaint is within the Code's overall jurisdiction.

#19. Bill 107 be amended to ensure that when the Commission initiates its own complaints, it has all the investigation powers it needs.

(See also the recommendations below, regarding the remedies the Commission can ask the Tribunal to order.)

C. BILL 107 DOES NOT GIVE THE HUMAN RIGHTS COMMISSION THE RIGHT TO INTERVENE IN TRIBUNAL PROCEEDINGS

Under the current Code, the Commission needs no power to intervene in individual cases, to draw attention to issues of public importance. The Commission is responsible for prosecuting every case, and can identify and raise any broad important issues which arise in any case.

The Attorney General has said that Bill 107 gives the Commission the right to intervene before the Tribunal in systemic cases that individuals bring before the Tribunal. In fact, Bill 107 gives the Commission no such right. At most, the Commission may be able to ask to intervene. The Tribunal does not have to grant the request. Moreover, the bill doesn't require complainants to give the commission notice of human rights complaints they file with the Tribunal. Therefore, unlike under the current Code, the Commission won't have systematic knowledge of all cases being launched in order to decide in which cases it might wish to intervene, and to focus its efforts on recurring priority areas.

The Commission's right to intervene in any Tribunal hearing will be particularly important since under Bill 107, hearings will be driven by private parties who have little incentive to spend their scarce resources pushing for broad or public interest remedies.

It is therefore recommended that:

#20. Section 39 of Bill 107 be amended to give the Human Rights Commission the right to intervene in any case before the Tribunal and to require the Tribunal to forward to the Commission a copy of every human rights complaint filed with the Tribunal.


D. BILL 107 WILL EFFECTIVELY LIMIT NOT EXPAND EFFECTIVE REMEDIES

The tribunal's power to order strong, effective remedies once discrimination has been proved is extremely important. Historically and too often, human rights cases have yielded insufficient remedies. While in opposition, the Liberal Party recognized this in the clearest terms.

On October 29, 1998, then-opposition Liberal MPP Dwight Duncan brought a resolution before the Legislature which the Legislature unanimously passed. That resolution set out the 11 principles which the Ontarians with Disabilities Act was to incorporate. In his 2003 election pledge to Ontarians with disabilities, Dalton McGuinty promised to implement those principles. Among them, the sixth principle recognized that human rights complaints yield inadequate remedies.

The need for the Code's remedy powers to be broadened was made even more pressing when the Ontario Court of Appeal decided Entrop v. Imperial Oil Limited (2000), 50 O.R. (3d) 18 (C.A.). That case held that the Human Rights Tribunal has jurisdiction to issue remedies that flow only from the subject matter of the complaint. This has led to unduly-technical arguments about whether a particular remedy flows from a complaint's subject matter. It is necessary to amend the Code's remedy powers, to remove the technical restrictions on remedies that the Tribunal can order that arise from the Imperial Oil case. Bill 107 doesn't rectify this.

In human rights cases, public interest remedies are remedies which are intended to root out the causes of discrimination, to prevent future repetition of past acts of discrimination and generally to broadly address the social problem of discrimination beyond piecemeal compensation of individual discrimination victims. Under the current Code, the Commission has lead responsibility to seek public interest remedies at three important venues:

i. at the settlement negotiation table, where most complaints are resolved;

ii. at Tribunal hearings into complaints brought by individuals; and

iii. at Tribunal hearings into complaints brought by the Commission itself, in the absence of a complaint by any individuals.

Bill 107 threatens to significantly reduce the number and quality of public interest remedies that will result from human rights complaints. Every human rights case gives rise to a potential for public interest remedies. Bill 107 removes the Commission from the all-important negotiation table, where most individual human rights complaints are settled. It also removes the Commission from its current role of lead prosecutor at Tribunal hearings, deciding human rights complaints filed by individuals. The Commission would be present at such hearings only if it is permitted to intervene in the case. Moreover, it will be harder to make a case for public interest remedies either at a Tribunal hearing or during settlement negotiations, since under Bill 107, the Commission won't have the ability to conduct an investigation to find evidence that would prove the need for a public interest remedy to be ordered.

It is not good public policy for Bill 107 in effect to privatize the role of seeking public interest remedies, by expecting individual discrimination victims to seek these in lieu of the Commission. Most discrimination victims do not want others to experience the same injury they suffered. However, discrimination victims' prime focus in conflictual human rights proceedings is typically to secure a personal remedy to compensate them for their own harm, or to implement their own human rights. Even if they did want to request a systemic remedy, they may not know what to request.

Respondents also often prefer to address only the individual complainant's harm. It may be substantially easier to make a monetary payment to an individual, than to take more major and costly action to root out the cause of discrimination.

Bill 107 also substantially reduces the range of remedies the Commission can seek if it initiates its own human rights complaint, under Bill 107's reduced mandate for this action. Under the current Code, when the Commission launches its own complaint, it can seek any remedy for past wrongs, and to prevent future violations of the Code. In contrast, under Bill 107, if the Commission launches its own human rights complaint, s. 43 of the Bill lets the Commission seek remedies only in relation to future practices. It cannot seek remedies to rectify or compensate for past discrimination. This is far narrower than the current Code.

What this means in practice is that, even if the Commission manages to launch a case regarding systemic discrimination, it cannot obtain any remedy for the victims of that discrimination. If those victims of discrimination want some kind of recompense for the harm they suffered, they would have to start all over again by bringing a new human rights complaint. This makes the process much slower, not faster than at present.

Where remedies are ordered, Bill 107 makes no effective provision for public enforcement of remedies, including public interest remedies. It is important that a public law enforcement body be available to effectively monitor and enforce remedies, and especially remedies that pertain to future practices. The Human Rights Commission is the obvious body that can and should perform this monitoring/enforcement role. However Bill 107 doesn’t provide for this. The Tribunal cannot and should not play the dual role of issuing remedies and monitoring and launching proceedings where needed, to ensure their enforcement.

It is therefore recommended that:

#21. Section 43 of Bill 107 be amended to enable the Commission, when it launches its own human rights complaint, to seek remedies not only regarding future practices, but also for past discrimination, including all remedies now available under the current Code, and any additional remedies that are otherwise made available under any expanded remedy power to be provided in an strengthened Bill 107.

#22. Section 42 of Bill 107 be amended to substantially broaden the power of the Tribunal to issue strong remedies to prevent future acts of discrimination, and to provide that remedies are available which derive from the evidence at the hearing, irrespective of the subject matter of the complaint.

#23. Bill 107 be amended to include within the mandate of the Human Rights Commission the power and duty to monitor and enforce compliance with tribunal remedies orders, and to give the Commission the investigative powers needed to serve that function.

#24. Bill 107 be amended to provide that the Commission be empowered to mediate/conciliate all human rights complaints filed under the Code, with a mandate to seek public interest remedies where appropriate.

VII. NEED TO ENHANCE ABILITY OF COMMUNITY ORGANIZATIONS TO FILE HUMAN RIGHTS COMPLAINTS

Bill 107 does not clearly authorize community organizations to file a human rights complaint. There should be circumstances when this is allowed, especially where the community organization is tied to an equality-seeking group and has a genuine interest in the issue. This should especially be available where the victims of the discrimination may not otherwise be readily able to bring and advance their own complaint.

It is therefore recommended that:

#25. Section 35 as re-formulated by Bill 107 be amended to permit a community organization that has membership from a Code-protected group to file a human rights complaint, where the organization has a genuine interest in the complaint and where it would otherwise be difficult for victims of the alleged discrimination to avail themselves of the procedures to enforce the Code.

VIII. NEED TO IMPOSE ENFORCEABLE DEADLINES FOR HUMAN RIGHTS ENFORCEMENT

A key aim of Bill 107 is to speed up human rights enforcement. Yet the bill imposes no time lines for important steps to be taken by the parties and/or the tribunal after a human rights complaint is filed. Such enforceable deadlines are needed to speed up the process.

It is therefore recommended that:

#26. Bill 107 be amended to provide readily enforceable deadlines for key steps in human rights enforcement, including a requirement that a hearing on the merits in a human rights complaint will commence within 90 days of the filing of the complaint.

IX. BILL 107 ELIMINATES THE RIGHT TO APPEAL

Section 42 of the current Code gives the parties to a human rights complaint, i.e. the Commission, the complainant or the respondent, a broad right to appeal to court from the Tribunal on any question of fact or law, if they object to the Tribunal's final decision or order. Section 45 of Bill 107 takes away this right of the parties to appeal an unsuccessful final Tribunal decision or order to the courts.

According to s. 45 of Bill 107, an unsuccessful party can go to court to challenge an a unsuccessful Tribunal final decision or order, only by bringing a judicial review application. A judicial review application is much harder to win than is an appeal. According to s. 45 of Bill 107, a court can only overturn a Tribunal decision or order during a judicial review application, if a party can show that the decision or order was patently unreasonable. This is a tough test to meet.

By allowing a court to overturn a Tribunal decision only if it is patently unreasonable, Bill 107 does not embody strong Supreme Court of Canada rulings holding that courts should scrutinize Human Rights Tribunals legal rulings more closely, due at least in part to the Tribunal's lack of recognized expertise in this field of law. (See Mossop, above.) Under Bill 107, a complainant is more vulnerable to losing their case at the Tribunal because he or she could not navigate the Tribunal setting alone, isn't guaranteed a publicly-funded lawyer, and typically won't have the Human Rights Commission at the hearing as the case's public prosecutor. This makes retention of the current Code's appeal rights all the more important for the complainant.

Bill 107 takes away a fundamental statutory entitlement to an appeal. Discrimination victims should not lose their existing rights in any human rights reform process.

Even though the Attorney General proposes to take away the current Code's broad appeal rights via Bill 107, the Ontario Government appears to believe that these appeal rights are still important for the Government to use while it still can. According to the June 26, 2006 edition of the Toronto Star, The Ontario Government announced that it was going to use the very appeal rights that Bill 107 would soon take away from everyone. The Ontario Government is reported to be appealing to court from the Human Rights Tribunal's ruling to overturn a recent important Human Rights Tribunal in favour of the human rights of persons with disabilities. The Tribunal had found that Ontario legislation violated the Human Rights Code by requiring an inquest to be held whenever someone dies in prison, but not similarly requiring an inquest to be held whenever someone dies in a psychiatric facility. The Attorney General's Ministry lost the case and is now appealing to court. Yet Bill 107 would drastically reduce an unsuccessful party's ability to similarly take the Tribunal's decision to court in the future.

As well, if Bill 107's new regime for Tribunal hearings is adopted (which takes the Human Rights Commission out of the Tribunal hearing in most cases), a complainant needs substantial new protection if he or she wins at the Tribunal, but is confronted with a wealthy respondent who then appeals the case to court. The respondent in that case will be far abler to pay lawyers to craft an appeal. The complainant won't have the Human Rights Commission to shoulder the work of defending the appeal, and likely won't be able to pay a lawyer thousands of dollars to fight the appeal for them. Moreover, it will be the complainant, not the Commission, who will be primarily if not totally exposed to pay the respondent's court legal costs if the court overturns the Tribunal decision.

In this way, Bill 107 can put a great deal of new unfair financial pressure on a complainant who wins at the Tribunal, to agree with the respondent (who lost at the Tribunal) to reduce the Tribunal's order, rather than run the risk of fighting the respondent in court. Thus, if Bill 107's new regime for privatized human rights enforcement is adopted, it is important that the complainant be given more protection than at present from having to fight appeals to court that are brought by respondents.

It is therefore recommended that:

#27. Section 45 of the Bill be amended to retain the complainant's current right to appeal to court from the Tribunal's final decision or order in the case of a complainant who is unsuccessful at the Tribunal.

#28. Bill 107 be amended to require any party filing an appeal or judicial review application in court, contesting a decision or order of the Human Rights Tribunal, to serve a copy of the appeal or judicial review application on the Human Rights Commission, and granting the Commission the right to take part in the court proceedings as a party.

#29. Bill 107 be amended to provide that no court shall order a complainant to pay court legal costs of a respondent in an appeal or judicial review application unless the complainant's position in that court proceeding was frivolous, vexatious, advanced in bad faith.

X. BAR TO HUMAN RIGHTS COMPLAINT IF CIVIL CASE IS BEFORE COURTS

For the first time, Section 35 of the Code, as amended by Bill 107, would prohibit a person from filing a human rights complaint if the matter is also before a civil court, at least in some circumstances.

Fay Faraday and Mary Cornish commented on these confusing provisions and posed important questions in their recent paper entitled "Responding to Bill 107 - Issues to Consider":

"Section 46.2 clarifies the ability of the Court to order monetary compensation where human rights issues arise in the context of a civil claim, a matter which had attracted recent attention in the Ontario courts. While this section grants courts jurisdiction to award monetary compensation for injury to dignity, feelings and self-respect, it does not address other possible monetary claims, restitution or remedial orders that may flow from a finding of discrimination before the Tribunal. Should courts have the power to order all human rights remedies, including systemic remedies or remedies such as reinstatement? Some other issues that arise in relation to this section include: What happens if a court either denies a monetary remedy or fails to adequately address the human rights implications of the civil claim? Can a claimant seek broader human rights remedies before the Tribunal?

Section 35(5) bars a human rights application before the Tribunal until any appeal right has expired. This could cause significant delay that would be measured in years. Section 35(5) appears to overrule recent Ontario jurisprudence which provided that a civil suit and a human rights complaint could be filed concurrently. If an individual did not receive an appropriate human rights remedy under s.46.2 could she file an application with the Tribunal after the appeal process is completed or would the six-month time limit would bar such a claim in that context?

We note that while Bill 107 automatically bars applications where there are concurrent civil claims, it does not automatically bar applications to the Tribunal where concurrent claims are made before other administrative tribunals. Instead, under s. 40 and s. 41, the Tribunal maintains its jurisdiction over such a concurrent application but may make rules allowing it to defer its processes in respect of that application and it can exercise discretion to dismiss the application only if it finds that the other administrative tribunal has appropriately dealt with the substance of the human rights claim."

These provisions may provide more confusion than clarity. It is important to decide whether and if so, when a party should be able to claim damages for a human rights violation in court, and if so, whether and when they should also be able to do so before the Human Rights Tribunal. It is important in the process to ensure that a discrimination victim doesn't find him or herself being tossed back and forth between the courts and the Tribunal like a football. It is also important that a discrimination victim not have to waste his resources fighting battles over whether he can bring a complaint at the tribunal at all. It is important to reduce, if not eliminate the scope of the Tribunal's power to cut off the option of a human rights complaint. If Bill 107 is not going to set down the rules for this, it seems preferable not to inject confusion and uncertainty into the current system.

It is therefore recommended that:

#30. Section 35(5) of Bill 107 be repealed.

XI. BILL 107 ALTERS THE FORM OF HUMAN RIGHTS COMMISSION

Bill 107 makes significant changes to the Human Rights Commission itself, presumably due to the bill's major reduction in the Commission's powers and the elimination of the Commission's core responsibility for investigating and prosecuting human rights violations.

A. COMMISSION'S SIZE

Under s. 27(1) of the current Code, there must be at least seven commissioners. Bill 107 eliminates the minimum number of commissioners that the Human Rights Commission must have. Under Bill 107's new s. 27(1) and (2)), the Government need not appoint any number of commissioners beyond the Chief Commissioner. The Government hasn't given any reason why this potential down-sizing would enhance or speed up human rights enforcement.

It is important that as the Commission's governing body, the Commissioners be as representative as possible of Canada's diverse communities. Bill 107 reduces the assurance that this will be the case. Reducing the mandatory minimum size of the Commission also makes it harder to ensure that there is continuity of the Commission's leadership after changes in Government. When there are fewer commissioners, it is easier for a new Government to make patronage appointments that quickly change the balance of power at the Commission.

It is therefore recommended that:

#31. Bill 107 be amended to retain in Code s. 27 the current requirement that there must be at least seven commissioners appointed to the Commission.

B. INSUFFICIENT INDEPENDENCE OF THE HUMAN RIGHTS COMMISSION

A key reform that has been repeatedly recommended over the years is that the Human Rights Commission be made more independent of the Ontario Government. This is critically necessary because one of the most important organizations that the Commission is mandated to investigate and prosecute is the Ontario Government. To be most effective at ensuring that the Ontario Government itself obeys the Human Rights Code, the body that investigates and prosecutes it must be as far from Ontario Government control as possible. The only organization that doesn't benefit from the Commission being made more independent of Government is the Government itself.

The Government has said that Bill 107 would deliver the reforms which have long been called for. Yet there is nothing in the Bill that would make the Ontario Human Rights Commission truly independent of the Ontario Government. If anything, Bill 107 reduces the Commission's independence from the Government of the day, as is discussed below, vis à vis appointment of the Anti-Racism and Disability Rights Secretariats.

Last year, the Ontario Government moved responsibility for the Human Rights Commission from the Minister of Citizenship to the Attorney General. The Commission can investigate and prosecute the Ontario Government. When the Ontario Government is the target of a human rights complaint, the Attorney General's Ministry acts as the lawyer representing the Government, defending the case. This places the Attorney General in the impossible role of overseeing the body that prosecutes it, and at the same time defending the Government that the Commission is prosecuting.

There are a number of ways, taken together, to significantly increase the Commission's independence. The first way is for the Commission to report directly to the Legislature rather than to a minister of the Government. A second way is to establish an arms-length process for nomination of persons to serve on the Human Rights Commission. This is currently a simple Cabinet appointment which creates the risk of partisan or patronage appointments.

It is therefore recommended that:

#32. Bill 107 be amended to provide that the Human Rights Commission reports directly to the Legislature, not to a minister of the Ontario Government.

#33. Bill 107 be amended to establish an arms-length, non-partisan public process for screening appointments to the Human Rights Commission based on clear merit-based qualifications.

#34. Bill 107 be amended, if it has been amended to require creation of a new Human Rights Legal Support Centre, to provide a similar public process for screening appointments to the Centre's governing board to ensure its independence from Government, competence and expertise.

XII. BILL 107 SECRETARIATS AND ADVISORY GROUPS ARE INADEQUATE

Bill 107 includes provisions for the establishment or re-invention of secretariats and advisory groups. These are weak and require substantial strengthening.

A. DISABILITY RIGHTS SECRETARIAT AND ANTI-RACISM SECRETARIAT

Sections 30 and 31 of Bill 107 establish a "Disability Rights Secretariat" and an "Anti-racism Secretariat." The Attorney General has presented these as new and innovative. Each of the Secretariats can have a maximum of six members. They are appointed by the Minister, on the Human Rights Chief Commissioner's advice. Bill 107 provides that this Secretariat's functions are all subject to the Chief Commissioner's direction. The new s. 31(4) of the Code, as re-written by Bill 107, would let the Secretariats do these things: Research, propose recommendations, design and perform public education and do whatever additional tasks the Chief Commissioner might assign, all aimed at addressing discrimination against persons with disabilities and racialized communities.

There are several serious problems with Bill 107's proposed Secretariats. First and foremost, the Secretariats' mandate is so narrow and weak as to be at best mere window-dressing.

Second, Bill 107 puts an arbitrary cap on the size of the Secretariats at six persons. To address the pervasive barriers and inequalities facing over 1.5 million Ontarians with disabilities and many, many people from racialized communities, six people for each Secretariat is extremely small. Any Secretariat of this sort must be substantially larger and better-resourced, if it is to be effective.

Third, as currently defined by Bill 107, these Secretariats are nothing new or innovative. Both branches within the Human Rights Commission have existed at various times in the past, under slightly different names. Under Bill 107 the only new thing is that these bodies are far weaker and have fewer powers than the offices which previously existed within the Human Rights Commission.

For example, in the 1980s, the Human Rights Commission had a Unit for the Handicapped. It was staffed by a team of investigators dedicated to deal exclusively with the most complex disability human rights complaints. They also helped other offices in the Commission to deal with their disability case load. In contrast, the new Disability Rights Secretariat will have no investigation powers.

Bill 107's creation of a Disability Rights Secretariat is yet another instance of a long term process of the re-creation of bodies that had previously existed under different names in the Ontario Government, to perform the same or similar role as Bill 107 assigns to the Disability Rights Secretariat.

For example, the Disability Rights Secretariat's public education role has been discharged in recent years in part by the Ontario Accessibility Advisory Council, created under the Ontarians with Disabilities Act, 2001 (ODA). An earlier version of that body had existed for some twenty years in the Ontario Government, but was abolished by the previous Government in 1995. Some six years later, that Government re-invented it under the Ontarians with Disabilities Act 2001. The McGuinty Government has now replaced the Accessibility Advisory Council with the new Accessibility Standards Advisory Council, created under the Accessibility for Ontarians with Disabilities Act 2005.

The research and public education roles of Bill 107's Disability Rights Secretariat is also within the core mandate of the Ontario Government's four-year-old Accessibility Directorate. That Government office was created under the ODA, 2001. The McGuinty Government expanded its mandate under theAccessibility for Ontarians with Disabilities Act 2005. That structure had been preceded by the Ontario Government's Secretariat for Disabled Persons, which had existed under various names in the 1980s and 1990s. It had earlier been a stand-alone office with its own minister at the cabinet table, mandated to speak at Cabinet for disability issues. It was reduced to a smaller office in the 1990s, and then subsumed within the Citizenship Ministry.

With this long history of Government re-organizing, re-naming, and re-shuffling of similar bodies over the past decades, it is hard to see its latest re-invention under the name "Disability Rights Secretariat" making a significant difference in the lives of Ontarians with disabilities.

Fourth, these Secretariats suffer from a total lack of independence from the Ontario Government. Bill 107 provides that the Secretariats members be appointed by the minister responsible for the Human Rights Code, currently the Attorney General. This appointment power is not subject to oversight by the Legislature or by Cabinet, and is not subject to the oversight procedures available for posts that are appointed by Cabinet.

It is therefore recommended that:

#35. Bill 107 be amended to:

(a) expand the mandate of the Disability Rights Secretariat and Anti-Racism Secretariats to include the investigation, conciliation and prosecution of disability complaints under the Code, whether or not they are definable as systemic cases;

(b) confer on the Secretariats at least as much power to investigate, conciliate and prosecute cases as the Commission enjoyed under the current Code;

(c) eliminate the six-person cap on the size of the Secretariats;

(d) provide that the members of the Secretariats shall be appointed by the same independent merit-based selection process as is proposed for appointment of Commissioners; and

(e) require that the Secretariats be provided sufficient staffing and funding to fulfil their mandate.

B. ENSURING EFFECTIVE ADVISORY GROUPS

Bill 107 adds a new s. 31.1 to the Code, which allows the Chief Commissioner to establish advisory groups to advise the Commission about the elimination of discriminatory practices. While there can be benefits to such advisory groups, the Code needs to include additional provisions to ensure that these are effective and not window-dressing.

First, there should be an appropriate, objective merit-based process for people to apply to and be appointed to these advisory groups. Second, the power to create an advisory group should rest with all the Commissioners as a whole, not solely with the Chief Commissioner.

It is critical to the success of each advisory group that there be sufficient and effective involvement of persons with disabilities. It is very important that the Government provide reasonable compensation for the time and expenses of people who serve on these advisory groups. Disability community organizations and individuals with disabilities who will participate in advisory groups will need reasonable funding to take into account the time and effort they contribute to this process, and to ensure that they can undertake the needed research and preparation to be able to effectively contribute. They should not have to personally cover their expenses, nor should they have to serve this government function as unpaid volunteers.

Disability community organizations that will take part in this process are overwhelmingly non-profit charities, with very tight budgets. Individuals with disabilities face staggering unemployment rates, multiples of the national average. The fortunate ones who have jobs will face difficulties volunteering the time needed to take part in an advisory group, especially if advisory groups meet during business hours.

There is some precedent for this kind of funding. The current Ontarians with Disabilities Act 2001 provides for provincial funding for members of the Accessibility Council of Ontario. Section 31(3) of the Accessibility for Ontarians with Disabilities Act 2005 similarly provides potential funding for members of the new Accessibility Standards Advisory Council.

It is important that any grant or funding program ensure that poor persons with disabilities who are on Ontario Disability Support Plan (ODSP) can receive such funding without compromising their ODSP eligibility. Many persons with disabilities are poor and depend on social assistance. Their input in the standards development process is critical. Barriers to their full participation in this process should be prevented.

The same can easily be said vis à vis members of other disadvantaged groups. However the AODA Alliance doesn't purport to speak for them. In proposing such funding for persons with disabilities, it is not to be implied that we mean other disadvantaged equality-seeking groups aren't equally deserving, if their communities so propose.

Finally, it is important that such advisory groups have a mandate to consult with the public. If not, then their capacity to provide informed advice is artificially impaired. When Bill 125, the previous Government's proposed Ontarians with Disabilities Act 2001 was before Standing Committee, the Liberal Party, like the NDP, proposed an amendment to make it clear that the current Accessibility Advisory Council (now replaced under the Accessibility for Ontarians with Disabilities Act 2005 by a new Accessibility Standards Advisory Council) would have a mandate to hold public consultations.

It is therefore recommended that:

#36. Section 31.1 of the Code, as created under Bill 107, be amended:

(a) to provide that the Commissioners may appoint advisory groups to advise the Commission on elimination of discrimination;

(b) to establish a merit-based appointment process for advisory group members;

(c) to provide for reimbursement for expenses and reasonable compensation for advisory group members for their work for the advisory group; and

(d) to give the advisory groups a mandate to consult the public on the work of the advisory group.

XIII. REFORM HUMAN RIGHTS COMMISSION INTERNAL CASE-HANDLING PROCESS

There is widespread agreement that the Commission’s current handling of cases needs reform, to address the backlog, speed cases up, and ensure that the Commission takes cases with arguable merit to the Tribunal, rather than dismissing them. However, Bill 107 doesn’t try to identify and rectify problems with how the Commission investigates, conciliates, mediates and handles its gatekeeping function. Instead, Bill 107 simply takes these functions away from the Commission. The government appears to have concluded that the Commission was so broken that it can’t be fixed.

The AODA Alliance proposes that Bill 107 should try to fix the Human Rights Commission to strengthen it, rather than simply giving up on it as the human rights investigator and public prosecutor.

A. UNDERTAKE PROMPT, SERIOUS AND SUBSTANTIAL INDEPENDENT REVIEW OF OHRC GATE-KEEPING, INVESTIGATION, CONCILIATION AND MEDIATION PROCEDURES

The Human Rights Commission’s current procedures for screening, investigating, conciliating, mediating and handling complaints, from the initial filing of a human rights complaint all the way through to the case proceeding to a Tribunal, even within its’ existing budget is not operating at peak efficiency. A reliable expert from outside the Government and Commission should do a thorough review and audit of these practices, and should make recommendations on how to simplify, improve and streamline the procedure. The Government hasn’t claimed that it has undertaken such an external audit of the Commission.

This is not a proposal for a minor administrative review of Commission procedures that addresses mere paper shuffling. It proposes a very thorough independent, external review that could lead to substantial reforms in how the Commission takes in, processes, investigates, conciliates and assesses human rights complaints. This could include a forensic audit of complaint files and other investigations to track why things take so long, and why investigations aren’t more thorough. These procedures can’t be fixed without an informed understanding of what's gone wrong and why, beyond the obvious drag on the Human Rights Commission created by its chronically being under-funded.


It is therefore recommended that:

#37. Bill 107 be amended to require the Government to have an independent external audit of the Human Rights Commission’s investigation, mediation, conciliation and gatekeeping functions in order to recommend administrative reforms to make these processes quicker, fairer and more reliable.

B. LEGISLATIVELY SIMPLIFY AND REDUCE THE NUMBER OF INTERNAL FORMAL DECISIONS THE HUMAN RIGHTS COMMISSION MUST MAKE IN A SINGLE CASE

Now, when a person files a human rights complaint with the Commission, the Commission can be required to make up to three separate formal decisions on that case. These are:

1) A preliminary decision whether not to deal with a complaint under section 34(1) of the Code. This is where the complaint is outside the Commission’s mandate, or was filed more than six months after the discrimination, or where the complaint is frivolous, vexatious or brought in bad faith, or where the complaint is properly dealt with elsewhere.

2) A decision under section 36 of the Code, after the investigation and mediation or conciliation of the case, on whether to take the case to a full hearing before the Tribunal.

3) If under Decision 2, the Commission decides not to take the case to a full hearing before the Tribunal, and if the complainant asks the Commission to reconsider this under section 37 of the Code, a reconsideration of whether the Commission should prosecute the case before the Tribunal.

If a respondent now asks the Commission to reject a complaint at the outset under Decision 1 above, this can bog the case down for months, creating delays. These three decisions, which the Commission may have to make, should be streamlined and compressed. Opportunities for the Commission's investigation/conciliation process to become log-jammed with technicalities and procedural gamesmanship can thereby be reduced. Decisions 1 and 2 should be consolidated into one decision to the extent feasible. Regarding Decision 3, see the next section.

It is therefore recommended that:

#38. Bill 107 be amended to the extent feasible to amalgamate into one decision the Commission’s current separate initial screening and final gatekeeping decisions under ss. 34(1) and 36 of the Code.

C. LOWER THE LEGAL THRESHOLD FOR THE COMMISSION TO REFER A CASE TO A TRIBUNAL

The Code now has a fairly vague threshold for when the Commission can refer a case for hearing to the Human Rights Tribunal. That threshold should be lowered to make it easier for the Commission to refer a case to a Tribunal. The Code should also be amended to include strong language that tells the courts that, when the Commission decides to take a case to the Human Rights Tribunal, the courts should not interfere with that decision.

For example, where the merits of a case will depend on a credibility assessment of clashing evidence from the complainant and the respondent, where the Commission doesn’t determine based on its investigation and on the parties’ submissions, that the complainant’s case is inherently false, the case should be referred to the Tribunal. In that event, it would be the Tribunal’s job to make credibility assessments based on live testimony.

As another example, in a case where a complainant and respondent agree that their dispute is irresolvable and should be decided by the Tribunal, the parties should be able to jointly ask the Commission to refer the case for a hearing at the Human Rights Tribunal. On consent, the parties could submit to the Commission sufficient evidence, to show what happened, what is in dispute, and why the matter needs a hearing. This joint submission could be deemed to fulfill the Commission’s duty to investigate the case.

It is therefore recommended that:

#39. Bill 107 be amended to provide that when the Commission decides under s. 36(1) of the current Code whether to refer a case to the Tribunal, the threshold shall be lowered, e.g. so that:

(a) Where the merits of a case will depend on a credibility assessment of the complainant’s and respondent’s evidence, where the Commission doesn’t determine based on its investigation and on the parties’ submissions, that the complainant’s case is inherently false, the case should be referred to the Tribunal.

(b) Where a complainant and respondent agree that their dispute is irresolvable and should be decided by the Tribunal, the Commission may directly refer the case for a hearing at the Tribunal.

(c) The court shall not overturn a Commission decision to refer a case to the Tribunal except if the respondent can show that the Commission acted in bad faith.

D. REFORM HUMAN RIGHTS COMMISSION PROCESS FOR DECIDING TO DISMISS A COMPLAINT

The Commission’s current decision with the most final and potentially detrimental consequences for human rights complainants is its power to decide to not take a discrimination complaint to the Tribunal for a full hearing. If the Commission decides not to take a human rights complaint to the Tribunal for a full hearing, and if the Commission doesn’t reverse this decision after a complainant asks the Commission to reconsider it, the practical result is that the complainant’s human rights complaint is finally and permanently rejected and dismissed.

Those supporting the changes to the Human Rights Code that the Ontario Government announced on February 20, 2006 argue that this power of the Commission to dismiss complaints (“gatekeeping”) has led the Commission to turn down human rights complaints that had arguable merit. They also object to the fact that the Commission doesn’t give the complainant an oral hearing before making this decision. As noted elsewhere in this submission, Bill 107 doesn’t eliminate this gate-keeping function. It just creates new gatekeepers.

Instead of moving the gate-keeping role elsewhere, there could be substantial improvements made to the way that the Commission exercises this function, to make it more fair, prompt, open, and accurate.

(a) If the Human Rights Commission decides not to take a complaint to the tribunal for a full hearing, it should be required to give more fulsome reasons in writing for this decision.

(b) Right now, when the Commission makes its decision whether to take a human rights complaint to the Tribunal for a full hearing, it does so in a closed meeting. If it decides to dismiss the complaint, and a complainant asks the Commission to reconsider that decision, the Commission also considers that request in a closed meeting, without holding an open hearing. The complainant can only make written submissions. Critics of the current system object to the fact that a complainant can have their case permanently dismissed without a chance to see the decision-maker, and argue their case’s strengths to the decision-makers in person.

To improve this situation, the Commission could adopt a new procedure for dealing with a complainant’s request to reconsider a Commission decision to dismiss their human rights complaint. By this new procedure, if the Commission has decided not to take a human rights complaint to the Tribunal for a full hearing, and if the complainant asks the Commission to re consider that decision, the Commission could hold an open in-person hearing. The Commissioners could let the complainant and the respondent present arguments in person to the Commissioners on whether the case should proceed to the Tribunal for a full hearing. The parties could make their arguments based on the Commission’s investigation file and anything else the parties wish to submit to it.

To keep this process simple and prompt, there should be no testimony from witnesses. There would be no procedural objections and wrangling. Each party could be given a fixed period of time, like 30 minutes, to make their pitch. They can argue whatever points they want.

Then the Commission would make its final decision on whether the case should be referred to the Tribunal for a full hearing. The issue is a simple one. It should be decided promptly. Subsequently, if this procedure is adopted, then the Commissioners who preside at these reconsideration hearings, should be free to decide the question afresh i.e. to form their own opinion on whether the case should be prosecuted at the Tribunal.

(c) To speed up the process of deciding whether a case will be sent to the Tribunal for a full hearing, it shouldn’t be necessary for the case to be reviewed by all the Commissioners appointed to the Commission. Section 27(6) of the current Code lets a panel of three Commissioners make a decision. To move cases through the system more quickly, the Commission should have panels of three Commissioners decide whether to take a case to the Tribunal. If the panel of Commissioners decide not to refer the case to the Tribunal for a full hearing, and if the complainant then asks for this decision to be reconsidered at an oral hearing, a panel of three different Commissioners should preside at the oral hearing.

It is therefore recommended that:

#40. Bill 107 be amended to reform ss. 36 and 37 of the current code so that:

(a) A decision under s. 36 of the current Code whether to refer a complaint to the Tribunal for a hearing shall be made by a panel of three Commissioners.

(b) If the Commission decides under s. 36 not to refer a complaint to the Tribunal for a hearing, and if the complainant applies to have the Commission reconsider this decision, the complainant has the right to an oral hearing before a panel of three different Commissioners who will decide afresh whether to refer the case to the Tribunal. This hearing will be based on submissions by the parties, and shall not receive oral evidence.


XIV. BREACH OF UNDERSTANDING WITH ONTARIO'S DISABILITY COMMUNITY

Bill 107 is a fundamental breach of the McGuinty Government's understanding reached with representatives of Ontario's disability community, during the development and passage of the Accessibility for Ontarians with Disabilities Act, 2005 .

In the 2003 election, Premier McGuinty promised a new disability law with effective enforcement. After the 2003 provincial election, when the disability community spoke with the Government as the Accessibility for Ontarians with Disabilities Act was being developed, it was very important that nothing would weaken or take away rights that persons with disabilities enjoyed under the Human Rights Code. Several disability groups called for the new disability law to establish a new, independent enforcement agency to enforce removal and prevention of barriers against persons with disabilities.

The McGuinty Government said Ontarians with disabilities don't need a new independent enforcement agency, because Ontario already has the Human Rights Commission, with all its powers to receive, investigate and prosecute human rights complaints.

The disability community largely applauded the final Accessibility for Ontarians with Disabilities Act 2005 as a good total seamless package, though it didn't include everything the community wanted, because it was a good deal. Now after the fact, the Government plans to seriously weaken the Human Rights Commission via Bill 107. That undermines theAccessibility for Ontarians with Disabilities Act.

After so many in the disability community endorsed theAccessibility for Ontarians with Disabilities Act, it's unfair for the McGuinty Government to turn around and rip out most of the Human Rights Commission's teeth. It's especially unfair since, when he campaigned in 2003, Premier McGuinty promised in writing that his new disability law, at a minimum, would include the substance of his party's proposed amendments to the previous Conservative Government's weaker disability bill. Liberal-proposed amendments to the Harris Government's Bill 125 (the proposed Ontarians with Disabilities Act 2001), introduced in December 2001, included provisions to expand the Human Rights Commission's enforcement and investigation mandate in disability cases. The disability community was prepared to accept a disability act that didn't go that far, but it can't be expected to sit still for the Human Rights Commission being made even weaker, when Premier McGuinty promised it would be made stronger.

After the McGuinty Government announced its plans to weaken the Human Rights Commission on February 20, 2006, the AODA Alliance and many other community organizations expressed the concern that this will seriously weaken the new Accessibility for Ontarians with Disabilities Act 2005 and will fly in the face of commitments and understandings regarding that legislation that the McGuinty Government had with the disability community. It was in the face of this that the McGuinty Government appears at the last minute to have added the Disability Rights Secretariat to Bill 107. When the McGuinty Government first announced its plans for human rights reform on February 20, 2006, it only announced an intent to create an Anti-racism Secretariat, not a Disability Rights Secretariat.

The weak Disability Rights Secretariat that Bill 107 proposes is utterly incapable of serving a meaningful role vis à vis the Accessibility for Ontarians with Disabilities Act 2005. To honour its understanding with the disability community, the McGuinty Government should ensure that Bill 107 does not eliminate the full recourse to the Human Rights Commission that Ontarians with disabilities now enjoy. Alternatively, it is necessary that the Government now amend theAccessibility for Ontarians with Disabilities Act 2005 to create the new, independent enforcement agency for that statute that the Government refused to establish in 2005, due to the continued availability of the Human Rights Commission.

It is therefore recommended that:

#41. Either:

(a) Bill 107 be amended to ensure that persons with disabilities retain full access to all the investigation, mediation, conciliation and prosecution services of the Human Rights Commission that they now enjoy; or

(b) theAccessibility for Ontarians with Disabilities Act 2005 be amended to immediately establish a strong, effective independent arms-length enforcement agency for that law.

XV. BILL 107 REDUCES THE FORCE OF COMMISSION POLICIES AT THE TRIBUNAL

The Human Rights Commission now can play an important role in developing policy on human rights. The Commission has developed several important ground-breaking and influential policies on human rights.

Bill 107 lets the Commission retain this role. It contemplates a Commission primarily focused on research, public education and policy development.

Yet Bill 107 gives Commission policies the least legal significance possible. It doesn't make Commission policies on human rights binding on the Human Rights Tribunal when it decides cases. Section 44 of the bill merely says that the Tribunal shall consider any Commission document. This trivializes the commission's role as a meaningful policy maker. It further reduces the opportunity to bring broader public interest concerns into Tribunal hearings.

It is therefore recommended that:

#42. Bill 107 be amended to provide that in deciding a case, the tribunal shall apply and follow policies published by the Commission unless a party convinces the Tribunal that the Commission's policy is legally erroneous.

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.

XVII. CHANGES TO THE CODE SHOULD BE REGULARLY REVIEWED

The Ontario Government appears confident that Bill 107's dramatic changes will succeed. Many others believe that the new system will be rife with problems. The Bill should include provisions to provide for regular and timely review of the system, in order to make further changes to the Code as needed.

Bill 107 requires a single review of the Human Rights Code, five years after the Bill goes into effect. Section 10 of Bill 107 provides that the minister shall appoint a person to undertake a review of the implementation and effectiveness of the changes resulting from the enactment of the Bill. The person must submit a report of his or her findings to the minister within one year.

The proposed review is insufficient. It needs to be strengthened. First, the review is deferred too far into the future. It should be undertaken no more than three years after Bill 107 comes into force. Further reviews should be required after this at five-year intervals.

Bill 107 also does not ensure that there will be an open public consultation as part of this review. It simply requires the person appointed to conduct a review and make a report. The Ontario Government was widely criticized for a lack of sufficient consultation in the development of Bill 107. Public involvement will be all the more important in reviewing the results of the Code's alteration.

The Bill gives the minister responsible for the Code the sole authority to choose who will do the report. It is preferable that this be done by Cabinet, with advice from the minister. This may help ensure that the report is unbiased. The Bill should also provide that any report or review of the system will promptly be made public.

A good model for such legislative reviews is that provided for in theAccessibility for Ontarians with Disabilities Act 2005. The Accesibility for Ontarians with Disabilities Act’s legislative review clause was beefed up in response to input from the disability community. It provides for a first review after four years, for a bill that goes into effect immediately on proclamation. As such, three years would be suitable for Bill 107. The Accessibility for Ontarians with Disabilities Act requires the review to involve public consultation, requires the report to be made public, empowers Cabinet to appoint the person conducting the review, and prescribes subsequent reviews every three years.

It is therefore recommended that:

#46. Section 10 of Bill 107 be amended to provide that

(a) the first legislative review of Bill 107 will occur three years after Bill 107 is passed;

(b) the review must involve open public consultations, including with equality-seeking groups;

(c) Cabinet shall appoint the person to conduct the review, with input from the minister;

(d) The review report shall promptly be laid before the Legislature and be made public; and

(e) there shall subsequently be reviews following the same procedure every five years.

XVIII. NEED FOR HUMAN RIGHTS ENFORCEMENT SYSTEM TO BECOME BARRIER-FREE

For the human rights enforcement system to be effective, it must be fully accessible to complainants. Existing barriers to the system must be identified and removed. Ongoing strategies need to be put in place, to ensure that no new barriers to access are created in future. This follows from the requirements of the Code itself, and from the Ontarians with Disabilities Act 2001 and theAccessibility for Ontarians with Disabilities Act 2005.

A Comparable process for achieving this to that which the Ontarians with Disabilities Act Committee championed for a decade, and its successor, the AODA Alliance now champions, would be effective for persons with disabilities and for other equality-seeking groups.

It is therefore recommended that:

#47. Bill 107 be amended to require that:

(a) the Human Rights Commission and the Human Rights Tribunal each annually develop and make public an accessibility plan, after consulting with equality-seeking groups.

(b) The accessibility plan will comprehensively identify barriers to access to the human rights enforcement system impeding Code-protected groups such as persons with disabilities and racial and religious minorities, and shall specify the steps to be taken to remove and prevent such barriers, the time lines within which those steps shall be completed, and the progress made in the past year towards the identification, removal and prevention of those barriers.

XVIX. BILL 107 REDUCES COMMISSION POWER TO EVALUATE PROPOSED SPECIAL PROGRAMS

As part of its overall plan to reduce the powers of the Human Rights Commission, s. 2 of Bill 107 narrows and reduces the Commission's power to decide whether a programme outside the Ontario government is a "special programme" within the meaning of s. 14(1) of the Code. Section 14(1) exempts from attack under the Code a special programme. A special programme is a programme that is designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. This aims at protecting affirmative action or employment equity programmes from being attacked by members of non-disadvantaged groups as alleged reverse discrimination.

Under s. 14 of the current Code, the Commission can, either on its own initiative or at the request of another party, inquire and decide whether a programme (apart from programmes operated by the Ontario Government) is a special programme within the meaning of s. 14(1) of the Code, and as such, is exempt from Code complaints. An application for such an inquiry can be made by a human rights complainant (who claims the programme discriminates against him or her) or by the party who operates the programme.

Under the current Code, the Commission has the power to make an order declaring:

* that the special programme, as defined in the order, does not satisfy the requirements of subsection (1); or

* that the special programme as defined in the order, with such modifications, if any, as the Commission considers advisable, satisfies the requirements of subsection (1). (See code s. 14(2).

What is the significance of such an order? The current Code doesn't say that the Human Rights Tribunal can overturn such an order, or that an order can be appealed to court (apart from the narrow remedy of judicial review applications). To the extent that such orders are treated as binding, this now gives the Commission important leverage over organizations (other than the provincial government) who operate programmes that might qualify as special programmes. The Commission can now negotiate with an organization that, if the organization incorporates needed protections in the programme, then it can be granted an exemption. If not, then the Commission can declare that the programme isn't a special programme. That takes an important legal defence away from the programme.

Section 2 of Bill 107 inexplicably reduces this power. This makes it far less relevant and useful. First, it only gives the Commission the power to declare that a programme is a special programme either as is, or subject to Commission-designated conditions. Bill 107 totally takes away the Commission's important power to declare that a programme is not a special programme. Thus, as amended, s. 14 of the Code gives the Commission a carrot, but takes away its stick. Under Bill 107, the Commission's leverage in this process is substantially reduced.

Second, Bill 107 limits the force of a Commission ruling on a special programme application. It provides that if the Commission makes an order designating that a programme is a special programme, the order is only binding in the Human Rights Tribunal in the absence of evidence to the contrary.

Third, Bill 107 reduces the possible involvement of complainants in this special programme designation process. Under the current Code, a complainant potentially can be involved in this process. The complainant can even bring a request, if aggrieved, to have the Commission reconsider its decision. (See Code s. 14(3).) This is exacerbated by the fact that under Bill 107, unlike under the current Code, the Commission isn't mandatorily aware of all human rights complaints that are filed under the Code.

In one respect, Bill 107 leaves the s. 14 process intact, when it would be better if Bill 107 altered the current Code. Now the Commission cannot make any order designating whether a programme is a special programme, if the programme is operated by the Ontario government.

There is no reason for this. It may be that Ontario Government programmes are at least as appropriate, if not more appropriate for review by the Commission.

Fourth, even if the Commission takes part in an assessment of whether a program is a special program within the meaning of s. 14(1) of the Code, Bill 107 doesn't include the Commission as of right as a party at a subsequent Tribunal hearing where the program's status comes in issue.

A person might file a complaint against a program that has been before the Commission for an assessment of whether it qualifies as a special program. Under Bill 107, the Commission isn't automatically a party to that Tribunal hearing. The Tribunal has no duty to let the Commission take part in the hearing.

It may well fall on the shoulders of a private person, the complainant, to respond to evidence on the "special programme" issue that the respondent adduces. This could be so under Bill 107, even though the Commission may have knowledge, expertise and evidence to share on point. This further shows how Bill 107 inappropriately privatises human rights enforcement, while potentially wasting public funds (here, the funds the Commission may have spent assessing a programme to see if it qualifies as a special programme).

It is therefore recommended that:

#48. Section 2 of Bill 107 be eliminated, so that the Human Rights Commission retains its full current power to review programmes as possible "special programmes" under s. 14(1) of the Code.

#49. Bill 107 be amended to repeal s. 14(5) of the current Code, so that programmes operated by the Ontario Government can be reviewed by the Commission to determine whether they qualify as a special programme under s. 14.(1) of the Code.



APPENDIX 1: LIST OF AODA ALLIANCE’S RECOMMENDATIONS

The AODA Alliance proposes these amendments to Bill 107:

#1. Bill 107 should be amended so that it does not repeal the Commission's powers under Part III of the current Code to investigate, conciliate, and where warranted, prosecute human rights complaints.

#2. Bill 107 should be amended to give human rights complainants the option of either taking their complaint directly to the Tribunal, or lodging it with the Human Rights Commission, with access to all the public investigation, mediation, conciliation and public prosecution powers and duties that the Code now provides.

#3. Section 46.1 of the bill be amended to provide that every human rights complainant has the right to publicly-funded effective legal representation by a lawyer in proceedings at the Human Rights Tribunal from the outset of the complaint through and including all appeals and the enforcement of any Tribunal order.

#4. Bill 107 be amended to require that government decisions over the funding of legal representation must be reported to and approved in advance by the Legislature.

#5. Bill 107 be amended to require that a special all-party committee of the Legislature with equal representation from all political parties shall annually review the Government's funding for legal services for human rights complainants, and shall make recommendations to the Legislature regarding the level of funding for the following year.

#6. Bill 107 be amended to eliminate the Tribunal's power to dismiss or defer a human rights complaint without first holding an oral hearing.

#7. Section 37 of Bill 107 be amended to provide that the Tribunal shall offer mediation services, but that the parties have the right to decline to take part in them, without prejudice to any right to a hearing they enjoy under the Code.

#8. Bill 107's new s. 35 be amended to extend the deadline for filing a human rights complaint to two years, while retaining the power to extend this period if delay was incurred in good faith and caused no substantial prejudice.

#9. Bill 107 be amended to provide that the Tribunal may not order a complainant to pay legal costs at the tribunal, and that a court may not order a complainant to pay legal costs on a judicial review application, or (if appeals to court aren't abolished by Bill 107) on an appeal to court.

#10. Bill 107 be amended to eliminate s. 45.2, and to prohibit the Tribunal from charging user fees.

#11. Bill 107 be amended to establish an arms-length, non-partisan process for screening appointments to the Human Rights Tribunal and Human Rights Commission based solely on merit and expertise.

#12. Section 38 of the bill be amended to provide that the Tribunal may not make rules that override or are inconsistent with the Statutory Powers Procedure Act.

#13. The Bill be amended to provide that, before the Tribunal may make rules, it must publicly post a draft of the rules, invite public input, and consider that input before finalizing the rules.

#14. The new s. 32 of the Code, as created by Bill 107, be amended so that it does not give the Tribunal power to make rules that would permit Tribunal employees to testify at a hearing.

#15. The bill be amended to ensure that the Tribunal, which is the judge in human rights cases, cannot also give itself the power to be the investigator in human rights cases.

#16. Bill 107 be amended throughout to remove any reference to "systemic" issues, discrimination or cases, as a criterion for any case, remedy, proceeding, or jurisdiction.

#17. Section 36 of Bill 107 be amended to permit the Human Rights Commission to initiate its own complaint in any case, regardless of whether it is a systemic case and not subject to any additional requirements.

#18. Bill 107 be amended to provide that no party can challenge the Human Rights Commission's decision to initiate its own human rights complaint, so long as the complaint is within the Code's overall jurisdiction.

#19. Bill 107 be amended to ensure that when the Commission initiates its own complaints, it has all the investigation powers it needs.

#20. Section 39 of Bill 107 be amended to give the Human Rights Commission the right to intervene in any case before the Tribunal and to require the Tribunal to forward to the Commission a copy of every human rights complaint filed with the Tribunal.

#21. Section 43 of Bill 107 be amended to enable the Commission, when it launches its own human rights complaint, to seek remedies not only regarding future practices, but also for past discrimination, including all remedies now available under the current Code, and any additional remedies that are otherwise made available under any expanded remedy power to be provided in an strengthened Bill 107.

#22. Section 42 of Bill 107 be amended to substantially broaden the power of the Tribunal to issue strong remedies to prevent future acts of discrimination, and to provide that remedies are available which derive from the evidence at the hearing, irrespective of the subject matter of the complaint.

#23. Bill 107 be amended to include within the mandate of the Human Rights Commission the power and duty to monitor and enforce compliance with tribunal remedies orders, and to give the Commission the investigative powers needed to serve that function.

#24. Bill 107 be amended to provide that the Commission be empowered to mediate/conciliate all human rights complaints filed under the Code, with a mandate to seek public interest remedies where appropriate.

#25. Section 35 as re-formulated by Bill 107 be amended to permit a community organization that has membership from a Code-protected group to file a human rights complaint, where the organization has a genuine interest in the complaint and where it would otherwise be difficult for victims of the alleged discrimination to avail themselves of the procedures to enforce the Code.

#26. Bill 107 be amended to provide readily enforceable deadlines for key steps in human rights enforcement, including a requirement that a hearing on the merits in a human rights complaint will commence within 90 days of the filing of the complaint.

#27. Section 45 of the Bill be amended to retain the complainant's current right to appeal to court from the Tribunal's final decision or order in the case of a complainant who is unsuccessful at the Tribunal.

#28. Bill 107 be amended to require any party filing an appeal or judicial review application in court, contesting a decision or order of the Human Rights Tribunal, to serve a copy of the appeal or judicial review application on the Human Rights Commission, and granting the Commission the right to take part in the court proceedings as a party.

#29. Bill 107 be amended to provide that no court shall order a complainant to pay court legal costs of a respondent in an appeal or judicial review application unless the complainant's position in that court proceeding was frivolous, vexatious, advanced in bad faith.

#30. Section 35(5) of Bill 107 be repealed.

#31. Bill 107 be amended to retain in Code s. 27 the current requirement that there must be at least seven commissioners appointed to the Commission.

#32. Bill 107 be amended to provide that the Human Rights Commission reports directly to the Legislature, not to a minister of the Ontario Government.

#33. Bill 107 be amended to establish an arms-length, non-partisan public process for screening appointments to the Human Rights Commission based on clear merit-based qualifications.

#34. Bill 107 be amended, if it has been amended to require creation of a new Human Rights Legal Support Centre, to provide a similar public process for screening appointments to the Centre's governing board to ensure its independence from Government, competence and expertise.

#35. Bill 107 be amended to:

(a) expand the mandate of the Disability Rights Secretariat and Anti-Racism Secretariats to include the investigation, conciliation and prosecution of disability complaints under the Code, whether or not they are definable as systemic cases;

(b) confer on the Secretariats at least as much power to investigate, conciliate and prosecute cases as the Commission enjoyed under the current Code;

(c) eliminate the six-person cap on the size of the Secretariats;

(d) provide that the members of the Secretariats shall be appointed by the same independent merit-based selection process as is proposed for appointment of Commissioners; and

(e) require that the Secretariats be provided sufficient staffing and funding to fulfil their mandate.

#36. Section 31.1 of the Code, as created under Bill 107, be amended:

(a) to provide that the Commissioners may appoint advisory groups to advise the Commission on elimination of discrimination;

(b) to establish a merit-based appointment process for advisory group members;

(c) to provide for reimbursement for expenses and reasonable compensation for advisory group members for their work for the advisory group; and

(d) to give the advisory groups a mandate to consult the public on the work of the advisory group.

#37. Bill 107 be amended to require the Government to have an independent external audit of the Human Rights Commission’s investigation, mediation, conciliation and gatekeeping functions in order to recommend administrative reforms to make these processes quicker, fairer and more reliable.

#38. Bill 107 be amended to the extent feasible to amalgamate into one decision the Commission’s current separate initial screening and final gatekeeping decisions under ss. 34(1) and 36 of the Code.

#39. Bill 107 be amended to provide that when the Commission decides under s. 36(1) of the current Code whether to refer a case to the Tribunal, the threshold shall be lowered, e.g. so that:

(a) Where the merits of a case will depend on a credibility assessment of the complainant’s and respondent’s evidence, where the Commission doesn’t determine based on its investigation and on the parties’ submissions, that the complainant’s case is inherently false, the case should be referred to the Tribunal.

(b) Where a complainant and respondent agree that their dispute is irresolvable and should be decided by the Tribunal, the Commission may directly refer the case for a hearing at the Tribunal.

(c) The court shall not overturn a Commission decision to refer a case to the Tribunal except if the respondent can show that the Commission acted in bad faith.

#40. Bill 107 be amended to reform ss. 36 and 37 of the current code so that:

(a) A decision under s. 36 of the current Code whether to refer a complaint to the Tribunal for a hearing shall be made by a panel of three Commissioners.

(b) If the Commission decides under s. 36 not to refer a complaint to the Tribunal for a hearing, and if the complainant applies to have the Commission reconsider this decision, the complainant has the right to an oral hearing before a panel of three different Commissioners who will decide afresh whether to refer the case to the Tribunal. This hearing will be based on submissions by the parties, and shall not receive oral evidence.

#41. Either:

(a) Bill 107 be amended to ensure that persons with disabilities retain full access to all the investigation, mediation, conciliation and prosecution services of the Human Rights Commission that they now enjoy; or

(b) theAccessibility for Ontarians with Disabilities Act 2005 be amended to immediately establish a strong, effective independent arms-length enforcement agency for that law.

#42. Bill 107 be amended to provide that in deciding a case, the tribunal shall apply and follow policies published by the Commission unless a party convinces the Tribunal that the Commission's policy is legally erroneous.

#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.

#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.

#46. Section 10 of Bill 107 be amended to provide that

(a) the first legislative review of Bill 107 will occur three years after Bill 107 is passed;

(b) the review must involve open public consultations, including with equality-seeking groups;

(c) Cabinet shall appoint the person to conduct the review, with input from the minister;

(d) The review report shall promptly be laid before the Legislature and be made public; and

(e) there shall subsequently be reviews following the same procedure every five years.

#47. Bill 107 be amended to require that:

(a) the Human Rights Commission and the Human Rights Tribunal each annually develop and make public an accessibility plan, after consulting with equality-seeking groups.

(b) The accessibility plan will comprehensively identify barriers to access to the human rights enforcement system impeding Code-protected groups such as persons with disabilities and racial and religious minorities, and shall specify the steps to be taken to remove and prevent such barriers, the time lines within which those steps shall be completed, and the progress made in the past year towards the identification, removal and prevention of those barriers.

#48. Section 2 of Bill 107 be eliminated, so that the Human Rights Commission retains its full current power to review programmes as possible "special programmes" under s. 14(1) of the Code.

#49. Bill 107 be amended to repeal s. 14(5) of the current Code, so that programmes operated by the Ontario Government can be reviewed by the Commission to determine whether they qualify as a special programme under s. 14.(1) of the Code.

ENDNOTES