Ontario Human rights Reform - A call to Action

AODA Alliance takes action in response to recently-revealed legal aid Ontario document showing Mcguinty Government still doesnít know how it will deliver on its pledge to ensure publicly-funded independent legal counsel to all human rights complainants

August 29, 2006

SUMMARY

We report on several key developments.

As always, we welcome your feedback. Email us at: aodafeedback@rogers.com


Attorney General McMurtry-Scott Building 720 Bay Street11th FloorToronto ON M5G 2K1 Tel: 416-326-4000 Fax: 416-326-4016

Our Reference # M06-02852 M06-03806
AUG 0 3 2006
Ms. Catherine Dunphy
Chair, AODA Alliance
c/o The Canadian Hearing Society
271 Spadina Road
Toronto, ON
M5R 2V3

Dear Ms. Dunphy:

I would like to take this opportunity to thank you for your correspondence to me with respect to Bill 107, for meeting with members of my staff to discuss the concerns of the AODA Alliance, and for preparing such detailed analyses of the bill.

The government is committed to strengthening the human rights system in this province and welcomes suggestions for improvements to Bill 107 to achieve that objective. As the bill moves through the legislative process, I will continue to meet with community organizations to hear their views, and will carefully consider all submissions made to the Standing Committee.

I have already committed to amending the bill to entrench legal support services and I anticipate that further amendments will be made to strengthen the bill once the Committee hearings have been completed.

Thank you, again, for your continued advice on this issue.

Yours truly,

Michael Bryant Attorney General


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
c/o Sandra Millington
1929 Bayview Avenue,
Toronto Ontario M4G 3E8
(Voice) 416 486 2500
(Fax) 416 480 7014

August 25, 2006

via facsimile (416) 979-8669

Mr. George Biggar
VP Policy, Planning and External Relations
Legal Aid Ontario
375 University Avenue, Suite 404
Toronto, Ontario M5G 2G1

Dear sir:

Re: Bill 107 and Provision of Legal Services to Human Rights Complainants

I write on behalf of the Accessibility for Ontarians with Disabilities Act Alliance. We are 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.

Our coalition is the successor to the Ontarians with Disabilities Act Committee, which 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. We draw our membership from the ODA Committee's broad grassroots base.

We have been actively involved in advocacy concerning Bill 107, the McGuinty Government's proposed reforms to the Ontario Human Rights Code. Among other things, we have tried without success to learn from the Ontario Government how it plans to fulfil its commitments regarding provision of legal services to human rights complainants in the event that Bill 107 is passed into law.

We received word that on July 12, 2006, Legal Aid Ontario launched a process to consult with Ontario legal clinics to gather input on the question whether Legal Aid Ontario should submit a proposal to the Ontario Government to operate the Government's proposed new Human Rights Legal Support Centre in conjunction with Bill 107. According to a consultation paper which Legal Aid Ontario has circulated to legal clinics around Ontario, the Ministry of the Attorney General has asked Legal Aid Ontario to make a proposal to provide legal services in the proposed new human rights enforcement system. LAO's consultation paper states:

"When it first considered this invitation, the Board of LAO decided that in order to determine whether LAO should make such a proposal, and if so, what that proposal should contain, it required input from clinics, among others."

We understand that LAO intends to complete its consultations by the end of September, and to decide in or after October if it will accept the Attorney General's invitation to submit a proposal to deliver legal services to human rights complainants.

PRESSING NEED FOR LAO TO SOLICIT INPUT FROM THE COMPLAINANTS' COMMUNITY

We commend LAO for undertaking a consultation on this important topic. In the event that the controversial Bill 107 were to be passed into law, the delivery of legal services to human rights complainants would be one of the many important ingredients in the new human rights enforcement system.

It is critically important that beyond consulting with its own legal clinics, LAO now consult with the population of potential clients that it would serve in this context. Legal Aid Ontario needs to have as clear a picture as possible of the expectations for legal services that clients would have of LAO in the proposed new human rights system. We therefore ask LAO to invite input on this issue directly from its potential end-users, the public, including from disadvantaged communities from which human rights complaints derive.

We respectfully regret LAO's explicit decision not to seek input from complainants' communities. LAO's consultation paper states:

"The Board of LAO is not proposing that LAO take a position, nor that it consult with clinics or others, about the benefits or drawbacks of the new system of human rights enforcement per se. These are matters about which individual clinics and other expert stakeholders have taken independent positions. This consultation is therefore premised on the assumption that Bill 107 passes substantially as introduced.

Because LAO will not be taking a position on the merits of the new system of human rights, LAO will not be consulting directly with human rights claimants and historically disadvantaged communities. To the extent that the views of these client groups are relevant to the issue of legal services in the new system of human rights enforcement, LAO is confident that community legal clinics, informed as they are by community boards and client communities, will provide rich and diverse comment. LAO will also be monitoring and considering submissions made to the Legislative Assembly's Justice Committee on Bill 107."

We fully understand that LAO doesn't wish to become embroiled in the substantive policy debate now under way on whether Bill 107's controversial proposed changes to the human rights system would, if passed, make things better or worse in the enforcement of human rights. However, this doesn't justify LAO not consulting with the public, including key client populations, on the focused issues in LAO's consultation paper. Our preliminary remarks below amply illustrate this.

Legal Aid Ontario could easily solicit input from the broader community on the narrow and specific issues in LAO's consultation paper. It could easily make it clear that it isn't inviting input on and will not be addressing the far broader policy question of whether Bill 107's proposed reforms are a good or a bad thing.

Legal Aid Ontario's potential client population has a great deal to offer LAO in this connection. Last spring Attorney General Michael Bryant felt that there is merit to consider the views of our organization on the issue of whether legal services to complainants should be delivered by LAO or elsewhere. When an AODA Alliance delegation met with Mr. Bryant on April 10, 2006, he asked our views on that very issue. If our views are relevant to him, they should be similarly worthwhile for LAO to consider.

It is insufficient for LAO to rely on its own legal clinics to voice to the LAO board the views from within the human rights complainants' communities. Of course, LAO's legal clinics have an important perspective to share with the LAO board on the issues raised in your consultation paper. However, LAO clinics are not the surrogates or duly-elected representatives of the communities they are intended to serve.

Moreover, various LAO clinics have already staked out strong positions very publicly in favour of or against Bill 107, and have been quite active and passionate in supporting either one side or other of the advocacy efforts on this hotly-disputed bill. As but one example, LAO's specialty clinic in the disability field, ARCH, made a detailed submission to the Legislature in support of Bill 107's "direct access" model, subject to certain amendments that it seeks. In sharp contrast, the substantial majority of voices from the disability community that appeared before the Standing Committee to date opposed Bill 107's "direct access" direction. Also in sharp contrast to ARCH's submission to the Standing Committee, many major disability organizations that haven't yet appeared before the Standing Committee, including our coalition, have written the Ontario Government earlier this year to express serious concerns with the entire "direct access" direction of the Government's proposals. These include, for example, Community Living Ontario, the Disabled Women's Network, the Ontario Association of the Deaf, the Alliance for Equality of Blind Canadians, the Canadian Paraplegic Association Ontario and the Ontario Association of Accessibility Advisory Committees. It is therefore not appropriate for LAO's board to rely on ARCH as the sole or major surrogate for or voice of the disability community in this context, when ARCH has already taken a strong formal public position on key aspects of Bill 107 with which so many in our community respectfully disagree.

We don't thereby minimize the importance of LAO's board hearing from ARCH on this issue. However, we propose that LAO's board should not treat its consulting with ARCH, a legal clinic, as a substitute for consulting with the broader disability community. In giving this example, we donít mean to single ARCH out. Rather we present this example to you as a clear illustration of the broad concern we here raise.

The Government's unfortunate timetable for Bill 107 to date, for which LAO is of course not in anyway responsible, shouldn't lead the community to be denied an opportunity for input into LAO's important decision on the issues addressed in your consultation paper. The public hearings on Bill 107 won't be resuming until, at the earliest, the end of September. If LAO requires more time to consult than the Government's schedule permits, it is preferable for LAO to ask the Government for more time, rather than LAO's dispensing with an important part of the consultation process. This is especially so since many community groups have already criticized the Ontario government for not properly consulting with them before deciding on the entire direction of the Government's human rights reforms.

We appreciate that LAO plans to track the input that the Standing Committee of the Legislature receives on Bill 107. However, that too is no substitute for LAO consulting directly with the broader public, beyond its own legal clinics. Deponents at the public hearings to date have not addressed the full range of important issues that LAO's consultation paper raises.

PRELIMINARY SUBSTANTIVE INPUT FROM THE AODA ALLIANCE ON LAO'S CONSULTATION PAPER

We take this opportunity to offer some preliminary thoughts arising from LAO's Consultation Paper that we urge LAO to consider. First, if Bill 107 passes, a very substantial new responsibility will be shifted away from the Human Rights Commission, to the new Human Rights Legal Support Centre. This new clinic will have a massive job. Complainants will turn to this new clinic to:

The McGuinty Government and those advocates who support Bill 107 have dramatically raised expectations regarding the timely provision of these universal legal services. Taken together, the Government's public statements are understood to have committed that under Bill 107, every human rights complainant will be provided free, full, effective independent legal counsel throughout the entire human rights process. This service will be provided to all who need it, regardless of their income. This service will not be limited to those who otherwise qualify for Legal Aid due to low income.

It will be critically important that these services be provided in a way that is fully accessible to and barrier-free for all persons with disabilities. It will be vital that local offices for the provision of this service be situated across Ontario. Given Ontario's massive size and large population, it would be grossly insufficient for these services only to be available on a face-to-face basis in Toronto, or only in one or two other urban centres.

These services will be expected to be provided by lawyers with specific expertise in human rights law, and with practice before the Human Rights Tribunal. Now, in each case that the Human rights Commission takes before the Tribunal, a Human Rights Commission lawyer appears. Commission lawyers are specialists in this area of the law and legal practice. It would be insufficient to replace them with inexperienced lawyers who have to learn this field on the fly.

The Government's commitments have created the expectation that these services will be delivered by a single specialized clinic. It is therefore not to be expected that this work will be downloaded onto the existing network of LAO legal clinics. Those clinics are already substantially over-worked and under-funded. Moreover, many of their lawyers are not necessarily specialists in human rights law, and in Human Rights Tribunal and Divisional court practice.

The public statements by those supporting this bill also create the expectation that this Clinic won't become a new "gate-keeper," which will decide which cases get a hearing and which will not. Had the new clinic become a new ďgate-keeper, whether expressly or tacitlyĒ, this would raise a number of very serious additional concerns, that we would wish to later address more fully.

As well, the clinic's services will be expected to be available in a very timely way. The McGuinty Government has committed that Bill 107 will significantly speed up the human rights enforcement system. The AODA Alliance and others have been very concerned that under Bill 107, the backlog and line-up will simply move from the Human Rights Commission's door to some new doors, such as the new clinic's.

It will be necessary for the new clinic to be able to effectively service in a timely way at least 2,500 complainants per year, the number of formal human rights complaints the Human Rights Commission now serves. It will also have to effectively serve the thousands of more people who now turn to the Human Rights Commission at and before the intake stage. Statistics from the Human Rights Commission report tens of thousands of inquiries per year over the phone or in writing. According to Human Rights Commission published statistics, its staff received 60,698 telephone calls, 1,648 written inquiries, and 886 in-person inquiries in 2004 5. The Tribunal presumably won't be in a position to hand out summary legal advice for those considering filing a complaint, lest it later be accused of pre-judging cases. The Human Rights Commission is widely expected to be substantially down-sized if Bill 107 is passed, since the bill takes away much of the Commissionís mandate.

It is unclear whether the Government is contemplating that this new Clinic will also give legal services to respondents accused of unlawful discrimination. If so, the clinic's workload will be even greater. As well, if respondents are also able to turn to the new Clinic for legal advice or representation, the Clinic will encounter difficulties in avoiding actual or perceived conflicts of interest.

The new Clinic will have at the very outset to be ready to immediately take on most of the 2,500 cases now in the human rights system. Under Bill 107's transition provisions, all cases in the current system will be forced to start all over in the new system without the Human Rights Commission's help, with a small exception. The few cases that will remain in the old system are those that are before the Tribunal at hearings where evidence has already been called when Bill 107 is proclaimed in force. A large body of complainants will thus turn to the new clinic all at once for immediate, informed, effective help.

Many have been concerned that this new clinic would simply be a re-invention of the existing Human Rights Commission, but with far less statutory power than the Commission now has. It is widely recognized by many on both sides of the current debate surrounding Bill 107 that the current Commission cannot effectively handle its current mandate and workload in a timely way, even with its statutory powers and current budget. Legal Aid Ontario should be alive to the concern that the new clinic may well face the same problems the Human Rights Commission now faces, once the Clinic steps into the Commission's shoes.

If LAO is to deliver this new legal service, it must receive on a year-after-year basis sufficient and discrete funding for it. The Government shouldn't expect LAO to draw on the already-insufficient funding that the Government gives LAO for the many other pressing legal needs that Ontarians urgently turn to LAO to meet. As well, there must be sensitivity in funding of this service to the fact that LAO clinic lawyers are already understood to be quite underpaid relative to Ontario Government legal counsel, such as those lawyers now working at the Human Rights Commission. Lawyers with publicly-financed expertise in this area shouldn't have to take a substantial pay cut to continue handling these cases, if they wish to work at the new clinic. Lawyers who represent complainants shouldn't be systemically paid less than the Ontario Government lawyers who will defend cases brought against the Ontario Government.

CONCLUSION

We hope this preliminary feedback is helpful. We believe it demonstrates the importance of LAO broadening its consultation beyond its existing clinics. We would welcome a chance to provide further input.

We would be pleased to assist LAO with consulting on this field, e.g. by spreading through our network an announcement encouraging others to provide LAO with input on its consultation paper. We commend LAO for recognizing the importance of consulting on this issue. We hope and trust that LAO will reconsider its position on consulting with the broader community.

Sincerely,

Catherine Dunphy
Chair, AODA Alliance


cc: via facsimile The Hon. Premier Dalton McGuinty (416) 325 3745
Michael Bryant, Attorney General of Ontario (416) 326 4016
Madeleine Meilleur, Minister Responsible for the AODA (416) 325 1498
Dwight Duncan, (416) 325 7755
James Bradley, (416) 326 9338
Barbara Hall, Chief Commissioner, Ontario Human Rights Commission (416) 314 7752
John Tory, Leader of the Official Opposition (416) 325 0491
Christine Elliott (416) 325 1423
Howard Hampton, Leader of the New Democratic Party (416) 325 8222
Peter Kormos (905) 732 9782
Wayne van der Meide, Legal Aid Ontario, Policy counsel (416) 979-8669


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue,
Toronto Ontario M4G 3E8
(Fax) 416-480-7014

August 25, 2006

To: The Hon. Michael Bryant, Attorney General of Ontario
11th Floor
720 Bay Street
Toronto Ontario M5G 2K1

Dear Sir,

Re: Bill 107 and Provision of Legal Services

We are writing to raise important issues with you regarding your Governmentís proposed reforms to the Human Rights Code. We recently learned that your Ministry has asked Legal Aid Ontario to submit a proposal for providing legal services to human rights complainants, if Bill 107 were eventually passed. We understand that Legal Aid Ontario is now consulting with its legal clinics to decide whether it will eventually submit a proposal to your Government. Legal Aid Ontario wonít be deciding whether it will make a proposal until at least this October.

Thus LAO may not decide whether to offer to deliver these legal services until most if not all deponents have presented at the public hearings. As you know, LAO is Ontarioís single largest provider of government-funded legal services to the public.

It is very troubling that, even fully six months after your Government announced its plans to reform the Human Rights Code at a news conference back on February 20, 2006, and well after the Government used its majority to support Bill 107 at Second Reading in the Legislature, it still hasnít even resolved the very basic question of how legal services will be delivered to human rights complainants, should the Government remove most of the Human Rights Commissionís investigation and public prosecution powers. We have been asking your Government for specifics on its plans in this regard since we first wrote to you about your planned human rights reforms back on February 27, 2006.

In light of this recent development, we ask that the public hearings on Bill 107 not resume until LAO has decided and has made public its decision on whether it will be willing to provide this important service. As you know, a very substantial proportion of the presenters at the first three days of public hearings on Bill 107, including both the billís supporters and its opponents, criticized the bill for failing to effectively fulfill your commitments that all human rights complainants will be provided free publicly-funded legal representation. Calls from virtually all quarters have come, urging that the bill be amended to correct this.

You stated your intention to amend this aspect of the bill over two months ago, on June 8, 2006. During the subsequent public hearings on the bill, Government MPPs reiterated that commitment over and over. Yet you have not provided any details on what your amendments will include, despite calls from the community and the Toronto Star for these to be revealed.

The public needs to know in detail how your Government plans to deliver on its commitment to provide legal services to all human rights complainants, before any more presenters are called on to give their input at the hearings. There is already shared recognition among all three parties that this correction to the bill is required. There is also shared recognition that this is a very important part of the bill, and that the public hearings are your Governmentís key method for consulting with the public on this bill. Presenters at the upcoming hearings have the right to know whether Ontarioís main provider of publicly-funded legal services, Legal Aid Ontario, is even planning to take on this important function, and if not, why not. More individuals and organizations shouldnít have to come before the Standing Committee to reiterate the same criticism of the bill, a criticism that you already accept. They should instead have the chance to comment on your Governmentís plans for fixing it.

We regret that in your August 3, 2006 letter to us you didnít commit to bring forward your amendments before the public hearings on Bill 107, as we had requested in our June 28, 2006 letter to you. We ask that you at least make a public statement setting out the specifics of your plans, if not the legal language that will embody them, before hearings resume.

We also wish to express to your government our serious concern that Legal Aid Ontario has decided not to consult with complainantsí communities such as persons with disabilities, when it considers whether to submit a proposal to deliver legal services if Bill 107 is passed. I refer you to our August 25, 2006 letter to Legal Aid Ontario, where we ask LAO to reconsider that decision. We would very much appreciate it if you could lend your voice to ours, by encouraging LAO to consult with the broader public including complainantsí communities, and not just with legal clinics, on the issues that LAO is now considering. When we met with you on April 10, 2006, you sought our input on whether LAO should deliver legal services to complainants under the bill. Given your recognition that our input is valuable on this issue, we hope and trust you will support our view that LAO take a similar view.

The results of the first three days of public hearings on Bill 107 make it clear that there is certainly no community consensus in support of Bill 107. To the contrary, fully 28 presenters opposed the bill, while a mere 11 presenters supported the bill, even in principle. Of those few supporting the bill, a decisive majority called for very substantial amendments. This makes it all the more important that your Government promptly address the issues set out in this letter.

We look forward to hearing from you regarding these issues and would be pleased to do what we can to assist.

Sincerely,


Catherine Dunphy, Chair, AODA Alliance

cc: via facsimile The Hon. Premier Dalton McGuinty (416) 325-3745
Madeleine Meilleur, Minister Responsible for the AODA (416) 325-1498
Dwight Duncan, (416) 325-7755
James Bradley, (416) 326-9338
Barbara Hall, Chief Commissioner, Ontario Human Rights Commission (416) 314-7752
John Tory, Leader of the Official Opposition (416) 325-0491
Christine Elliott (416) 325-1423
Howard Hampton, Leader of the New Democratic Party (416) 325-8222
Peter Kormos (905) 732-9782
George Biggar, Legal Aid Ontario, VP Policy, Planning and External Relations (416) 480-7014
Wayne van der Meide, Legal Aid Ontario, Policy Counsel (416) 204-5431