Ontario Human rights Reform - A call to Action

MAKING SURE THE NEW HUMAN RIGHTS TRIBUNAL IS FAIR, ACCESSIBLE AND LIVES UP TO THE GOVERNMENT'S COMMITMENTS - A DISCUSSION PAPER ON OPTIONS FOR THE ONTARIO HUMAN RIGHTS TRIBUNAL'S IMPLEMENTATION OF BILL 107

March 22, 2007

INTRODUCTION

In December, 2006, the Ontario Legislature passed Bill 107. That bill gives the Human Rights Tribunal dramatic new powers and responsibilities in receiving, mediating, investigating and hearing, and deciding human rights cases in Ontario. The bill requires the Tribunal to hold a public consultation on what it should include in the new Rules of Procedure that it will write for handling human rights cases.

This Discussion Paper sets out some constructive ideas on how the Tribunal should conduct this public consultation, and on what the Tribunal's new Rules of Procedure and its practice in human rights cases should include. These ideas are all based on and faithful to the positions which the AODA Alliance included in its brief to the Ontario Legislature on Bill 107, submitted last year, and available at:

http://www.aodaalliance.org/reform/aoda-final-brief.asp

We circulate these constructive ideas to help get discussion going. The AODA Alliance welcomes everyone's input before it finalizes its position on these issues. Please circulate this Discussion Paper widely. Encourage everyone to give us their feedback, and of course, to take part in the Human Rights Tribunal's public consultation on Bill 107's implementation. Send your feedback to: aodafeedback@rogers.com

Under Bill 107 (which the Government says it won't proclaim in force for up to 18 months), the human rights enforcement system would dramatically change. Until now, a discrimination victim would file their human rights complaint with the Human Rights Commission. The Human Rights Commission was required to investigate the case, and to try to negotiate a settlement of the case where possible. When the Commission had cases that it investigated and couldn't settle, and that appeared to have merit, the Commission could publicly prosecute the case before the Human rights Tribunal. The Human Rights Tribunal was the "judge" that heard and decided the case. Very few cases got to the Tribunal.

Under Bill 107, discrimination victims would file their human rights complaint with the Tribunal, not the Human Rights Commission. The Tribunal would be responsible for intake of all cases, for trying to mediate settlements, and for holding hearings in all cases that don't settle. The Human Rights Commission can launch its own public interest cases before the Tribunal, and can seek to intervene in cases that others bring before the Tribunal.

This discussion paper looks at two issues:

1. How should the Ontario Human Rights Tribunal consult the public on its implementation of Bill 107?

2. What should the Tribunal's new Rules of Procedure and its other practices include for its work under Bill 107?

THE TRIBUNAL'S UPCOMING PUBLIC CONSULTATION PROCESS

(i) The Need for the Tribunal's Public Consultation to be Open, Accessible and Inclusive

It is very important that the Human Rights Tribunal hold a full, inclusive, accessible, province-wide public consultation on Bill 107's implementation. This is because:

* Bill 107 massively transforms and expands the Tribunal's role. Under Bill 107 the Tribunal would have the most important role to play in the new human rights enforcement system.

* During public debates over Bill 107 last year, commitments were made that the Tribunal would undertake a public consultation, especially before taking any action that would override fair hearing rights guaranteed for decades in the Statutory Powers Procedure Act (SPPA). (The SPPA is discussed further below.)

* Section 39(7) of Bill 107 requires the Tribunal to hold public consultations before it can make any new Rules of Procedure.

* Many, including many from disadvantaged equality-seeking communities, are skeptical about Government pledges of consultation on Bill 107's implementation. The Ontario Government didn't hold open, inclusive public consultations before announcing its plans for reforming the human rights system on February 20, 2006. It later promised that the Legislature would hold public hearings on Bill 107, at which all could present their views. Then, on November 21, 2006 the Government passed a "closure motion" that cancelled further public hearings that had been promised, advertised and scheduled. Many were denied an opportunity to present at those hearings. The Government principally adopted amendments to Bill 107 proposed by the Bill's few supporters and rejected most proposed by those concerned about the bill. Amendments that were rejected included ones that would constrain the Tribunal's dramatic new powers. This all cast a major cloud over Bill 107.

(ii) What Steps Would Ensure an Open and Inclusive Consultation Process?

* The public consultations should be open to all members of the public, not just lawyers. It must include those from disadvantaged groups protected by the Human Rights Code, and all other affected and interested groups, such as Human Rights Commission staff (who have unique knowledge about the front line work in enforcing human rights).

* The consultations should be open to all who wish to take part. They should not be "invitation-only.”

* The public consultations should be widely publicized and advertised well in advance in a wide range of languages and media, and in accessible formats, to ensure that as broad an audience will learn about the opportunity to take part in them.

* Opportunities to file written submissions alone are not enough. Among any other avenues for gathering public input, the Tribunal should hold open public consultation sessions around Ontario, and not just in Toronto. They should be public, and not behind closed doors.

* The consultation should not be limited to the content of the Tribunal Rules of Procedure (on which the Tribunal is required by Bill 107 to consult). The Tribunal should consult on all aspects of the Tribunal's implementation of Bill 107, whether to be spelled out in the formal rules or not. This is not just a consultation on minor technical details like whether parties should have seven days or ten days to file some document with the Tribunal. Bill 107 would have the Tribunal assume the central role in processing all human rights cases from beginning to end.
* Before consulting with the public, the Tribunal should circulate an options paper that explains in plain language to the public (including those not familiar with Bill 107's technical details) the issues on which the Tribunal is consulting, and some of the options that are open to the Tribunal on each issue. The options paper should serve as a guide. The consultations should not be limited to the issues or options in the options paper.

* Individuals and organizations should be given sufficient time to develop their input to the Tribunal, including input on any options paper. The Tribunal should be aware of the time needed by community organizations to obtain feedback from their membership and communities before formulating their input to the Tribunal. There is enough time for the tribunal and the other major institutions in the Ontario human rights enforcement system to do this. This is Because according to media reports, the Government may take up to 18 months before proclaiming this bill in force.

* It is far better if the Human Rights Tribunal, the Human Rights Commission and the Ontario Government hold simultaneous public consultation sessions on Bill 107's implementation at the same place and time. This would let interested individuals and groups go to one place and give their feedback to each of the key public institutions that will be implementing this bill. If the Human Rights Legal Support Centre is up and running in time, it too can receive public input at these joint public consultation sessions.

* After getting input from the public and before enacting its rules, the Tribunal should make public a report of the results of the consultation, including the feedback it received. It should also publish Draft Rules for public input before finalizing the rules. It should then give the public a chance to give written feedback on its draft rules before finalizing the rules.

PRELIMINARY PROPOSALS ON THE CONTENTS OF THE HUMAN RIGHTS TRIBUNAL'S NEW RULES AND PRACTICES

To help get discussion going, we offer for consideration some general suggestions.

(i) Fundamental Principles

The Tribunal's rules and practices should:

* fulfill commitments that the Government made on what Bill 107 would achieve;

* ensure the Tribunal's accessibility, transparency and accountability;

* facilitate access to effective remedies for victims of discrimination, including minimizing delays for the complainant caused by respondents;

* address the inherent power and resource imbalances between discrimination victims and those they complain against;

* preserve the full rights of those appearing at the Tribunal to fair procedures at all times. Speed and efficiency cannot be achieved by sacrificing the right to have hearings that are fair. This is particularly important since the Tribunal's case load is going to rapidly balloon.

(ii) Government Commitments

Among the Ontario Government's commitments on what Bill 107 would achieve are the following:

* Under Bill 107, all human rights complainants will get a hearing before the Human Rights Tribunal within one year of filing their complaint.

* Under Bill 107, the Government will assure to every human rights complainant a free, independent legal counsel during proceedings at the Human Rights Tribunal;

* Under Bill 107, the Human Rights Commission will have its resources "freed up" so it can devote those resources to actively pursue public interest cases before the Human Rights Tribunal that it launches itself.

* Under Bill 107, the Human Rights Commission will have the right to intervene in any case before the Human Rights Tribunal that an individual launches.

(iii) Accessibility and Transparency

* The Government promised that under Bill 107, every complainant will have free independent legal counsel at Tribunal proceedings. To fulfill this commitment, where a complainant has not been able to arrange legal representation, the Tribunal rules should give the Tribunal the power and the duty to appoint counsel to represent the complainant e.g. the Human Rights Legal Support Centre.

* The Tribunal rules should entrench a right to a Tribunal-ordered investigation of a complaint on request of the complainant, particularly where the complainant is not represented by counsel, or where a complainant who is represented by counsel cannot obtain all information needed via the Tribunal's disclosure requirements.

* The Tribunal rules should mandate that a case will be heard on the merits within no more than one year of filing of a complaint, unless the complainant waives this requirement.

* All pre-hearing procedural motions that do not address the merits of the case should be dealt with in writing unless a party can show a need for an oral hearing. This should not apply to any motion that would finally dispose of or decide a case.

* Where there will be oral submissions on a procedural motion, the Tribunal rules should set fixed time limits for oral arguments on any procedural motions e.g. 30 minutes per side.

* Bill 107 gives the Tribunal sweeping power to defer the hearing of a case. The rules should strictly limit this power. For example, the rules should set out a very strong presumption against deferring a case. The rules should provide that except in very exceptional circumstances, a deferral order should not be able to defer a case for a more than six months. The rules should set out strict, tough criteria which a party must meet to get an order deferring a case. The Tribunal should be required to very promptly decide the motion, and to promptly give reasons if it decides to defer a case. The process for seeking a deferral order should not become self-fulfilling i.e. creating a deferral by injecting a procedural delay while the deferral request is fought over.

* There has been a major concern with the Tribunal at times taking far too long to decide cases. The Tribunal's members don't necessarily obey the requirement in s. 41(7) of the existing Ontario Human Rights Code that once a hearing is completed, a decision must be issued within 30 days. This threatens to become a much bigger problem as the Tribunal caseload expands over 25 times under Bill 107. It is therefore necessary for the Tribunal's rules to ensure that decisions will in fact be rendered in a timely fashion. They should create a fast, effective mechanism for a party to take effective action to enforce this if the Tribunal delays issuing a decision. A discrimination victim should not be forced to shoulder the costs and delays of going to court to seek an order to force the Tribunal to render a decision. For example, a Tribunal member should not be assigned to any new cases if he or she has a decision to issue that is beyond the required deadline.

* In order to ensure the protection of the public interest, the rules should provide that the Human Rights Commission has the right to intervene in any case before the Tribunal at any stage of the proceedings. Where the Human Rights Commission intervenes, it should have the full right to call evidence, to cross-examine witnesses, to make oral arguments, and to propose any remedy, without being limited by the position taken by the complainant. The Commission should also be entitled to take part in any settlement discussions or mediation at the Tribunal in any case an individual launches, and should have the right to intervene in that part of the proceedings.

* The Tribunal should proactively monitor and enforce its decisions and any settlements reached between the parties.

* The Tribunal and its procedures and operations need to be fully barrier-free to all equality-seeking groups. This is not limited to the content of the tribunal's formal Rules of Procedure. The Tribunal should undertake a full barrier-audit with input from affected equality-seeking groups. The results of this barrier audit should be made public. Before any rules of procedure are finalized, they should be verified to ensure that they do not perpetuate any existing barriers at the Tribunal or create any new ones.

* The Tribunal should develop from the audit and make public an accessibility plan every year. 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.

(iv) Fairness and Natural Justice

* At present, the Human Rights Tribunal has been required to obey all the requirements for a fair hearing that are set out in the SPPA. That law gives the Tribunal a great deal of flexibility, and lets it hold a hearing that is not as formal and technical as a court. Yet Human Rights Tribunal hearings have become far too formalistic and technical. Reform is needed, but not at the price of fairness at the hearings.

* Bill 107 gives the Tribunal power to make rules of procedure that override the SPPA, so long as the rules remain fair. This appears to be contradictory. The SPPA is designed to make sure the hearings are fair. Until and unless the Tribunal makes rules that override the SPPA, Bill 107 provides that the SPPA continues to govern hearings before the Human Rights Tribunal.

* It is objectionable for Human Rights Tribunal hearings not to live up to the SPPA's fairness guarantees. The Tribunal should make no rules that violate the SPPA.

* If, despite this, the Tribunal contemplates making any rule of procedure that may override the SPPA, it should go very slowly and cautiously. Before making any rule that would override the SPPA, the Tribunal should first explain to the public why it proposes to override a fair hearing right guaranteed by the SPPA. It should then get public input on that specific topic. The SPPA fair hearing rights should not be overridden absent a clear public consensus. Any such rule should have a "sunset" clause providing that that rule expires in three years unless the Tribunal renews it after a further public consultation.

* No rules should be made that take away the right to a hearing. The rules should not take away or limit a party's power to decide how to prove its case, so long as its evidence is relevant and not unduly repetitious. The Tribunal should not take over the role of calling witnesses to testify - a role that belongs to the parties to the hearings.

* The rules should give a discrimination victim and the Human Rights Commission a broad right to be able to call evidence, including expert evidence, to inform the Tribunal about the circumstances of discrimination and inequality facing equality-seeking groups in issue in the case. It should not be assumed that just because someone is appointed to the Tribunal, that person has extensive expertise in the inequalities facing all equality-seeking communities that the Human Rights Code protects. The rules should carefully guard against a Tribunal member deciding that he or she doesn't need to hear such evidence because they already know what they need to know.

* During the 2006 public debates on Bill 107, there were suggestions that the Tribunal may adopt different kinds of hearings for different kinds of cases. Little detailed was shared with the public at that time. Early in the Tribunal's public consultation, it should explain what it is considering. If this is to be adopted, the Tribunal should specify what kinds of hearings are available, the criteria for deciding which kind of hearing a case will get, and who and how this decision will be reached. It should give the parties a fair opportunity to make submissions on the kind of hearing that a case will receive.

* The Tribunal's rules should be strengthened to sufficiently ensure that a respondent makes timely production of all relevant documents. The rules should impose strict, strong penalties against a respondent who doesn't make timely production of all relevant documents. For example, the Tribunal should either deem the respondent to not contest any issue on which a document has been withheld, or should be required to draw a strong adverse inference against the respondent on that issue, especially absent a clear showing that the respondent had been very diligent in searching for relevant documents. It is not enough for the Tribunal to refuse to allow a party to rely on a document that was not disclosed in a timely fashion. This gives the party no incentive to make timely production of documents that hurts the party's case.

MISCELLANEOUS ISSUES

* The Tribunal’s new rules should not apply to complainants already in the current human rights system. They should only apply to cases that are launched after Bill 107 is proclaimed in force.

* The Tribunal Chair should ensure through his or her involvement in the appointment process that Tribunal members in addition to possessing a background and expertise in human rights in general, must also have expertise and experience in equality rights such as with respect to anti-racism and disability, and must also be representative of the diversity of Ontario’s population.

* The Tribunal should collect data on all complaints filed at the Tribunal in particular on the number of complaints dismissed, whether pre-hearing or on the merits after a hearing, and disaggregated on the grounds upon which these complaints were made.