Ontario Human rights Reform - A call to Action

Please Endorse this Blueprint for Effectively Reforming Ontario's Human Rights System - A Realistic Alternative to The McGuinty Government's Controversial Bill 107

November 6, 2006

SUMMARY

With the Legislature's public hearings on the controversial bill 107 resuming in Toronto on November 15, 2006, a major counter-proposal is being made public for reforming Ontario's under-funded, back-logged human rights system. Below please find this 4-page Blueprint, co-authored by David Lepofsky (the AODA Alliance's Human Rights Reform Representative), Margaret Parsons (executive director of the African Canadian Legal Clinic) and Avvy Go (clinic director of the Metro Toronto Chinese & Southeast Asian Legal Clinic)

This Blueprint is based on the AODA Alliance's draft brief on Bill 107. The AODA Alliance Board has approved that draft brief in principle. It is also based on the Discussion Paper on Human Rights Reform that the AODA Alliance made public last April, and the feedback received on it. This Blueprint also incorporates key ideas suggested by many of the 28 deponents who opposed bill 107 during the first three days of the public hearings, last summer in Ottawa, Thunder Bay and London.

Unlike the controversial bill 107 which has been widely criticized, this Blueprint is based on an important bedrock principle: Ontario must have a fully public system for investigating, prosecuting and enforcing human rights. The human rights system should not be privatized. In summary this Blueprint recommends that instead of the current Bill 107, effective human rights reform should:

-protect discrimination victims' existing rights that the Human Rights Code now provides;
-ensure increased funding for both the Human Rights Commission and Tribunal;
-remove legal barriers to filing human rights complaints;
-improve the Human Rights Commission;
-streamline the Human Rights Tribunal;
-ensure the human rights system's future effectiveness;
-ensure new legal supports for human rights complainants.

We encourage you to:

Endorse this Blueprint for effective reform of Ontario's Human Rights system.

* Write Premier McGuinty and opposition leaders John Tory (Conservatives) and Howard Hampton (NDP) to voice your endorsement. Let them know about any additional ideas for reform you would add to this Blueprint.

* Tell the Legislature's Standing Committee on Justice Policy if you endorse this Blueprint, and any additional ideas for reform that you might have.

We will shortly provide further background and other information that will help you give your input to the Government, the opposition parties, and the Legislature's Standing Committee on Justice Policy. As always, we welcome your feedback at:

aodafeedback@rogers.com


A BLUEPRINT FOR EFFECTIVE HUMAN RIGHTS REFORM IN ONTARIO

Proposed by Margaret Parsons, Avvy Go and David Lepofsky
November 6,2006

OBJECTIVES
Effective human rights reform must:
a) ensure and strengthen enforcement of human rights through the public enforcement process of the public human rights enforcement agency, the Human Rights Commission;
b) provide a faster, fairer resolution of human rights complaints;
c) increase access by discrimination victims to a hearing before the Human Rights Tribunal;
d) provide more expeditious, less legalistic and judicialized hearings before the Human Rights Tribunal; and
e) increase availability of legal supports to discrimination victims who use the human rights process.

To achieve these objectives, the bill should:

PROTECT EXISTING RIGHTS
1. Retain all aspects of the Human Rights Commission's existing mandate. Human Rights complaints will be filed with the Commission. Human Rights Commission would retain its duty to investigate, and to prosecute where evidence warrants. Retain the current mandate of the Tribunal, subject only to the following changes.

ENSURE INCREASED FUNDING FOR THE HUMAN RIGHTS COMMISSION AND TRIBUNAL
2. Provide additional funding for the Human Rights Commission and Tribunal to be able to effectively handle more cases more quickly, ensuring that the new funding will substantially be directed to the Commission's capacity to investigate, conciliate and prosecute cases.

REMOVE LEGAL BARRIERS TO FILING COMPLAINTS
3. Extend the Code's limitation period for filing complaints from six months to two years.
4. Enable group human rights complaints, and complaints by community groups regarding Code violations affecting the group in which they are interested.

IMPROVE HUMAN RIGHTS COMMISSION
5. Enact the unproclaimed amendment to the Code that would make it optional, not mandatory, for the Human Rights Commission to try to effect a settlement.
6. Mandate a process for the Human Rights Commission to fast-track complaints where time is especially of the essence e.g. where a complainant is terminal, or where a case may become moot if not fast-tracked.
7. Amend s. 34(1) of the Code (power to dismiss a complaint without investigation) to limit the grounds on which a complaint can be dismissed by the Human Rights Commission without first investigating or trying to mediate, to prevent summary dismissal of a case where facts in dispute but there is an arguable legal basis for the complaint.
8. Empower the Human Rights Commission to set deadlines by which a party must respond to a request for information, after which the Human Rights Commission can proceed in the absence of that information. i.e. to prevent respondents from bogging down the process.
9. Amend ss. 34(1) and 36 of the Code to amalgamate to the extent feasible the Human Rights Commission's three decisions on a complaint, so as to prevent a respondent from delaying a case during a s. 34(1) application to dismiss. For example, the amendment could give the Human Rights Commission the power to defer considering a s. 34(1) application to dismiss until it considers the case as a whole under s. 36(1) for referral to the Tribunal for a hearing.
10. Provide that only three Human Rights Commissioners should preside to decide whether to refer a case to the Tribunal, or to dismiss the case as frivolous etc. (reducing the cost and time needed to get a case decided at this stage of the process).
11. Provide an exception for the Human Rights Commission's duty to investigate the case where the complainant agrees to waive the investigation.
12. Amend s. 36(1) of the Code to reduce the threshold that must be met for the Human Rights Commission to refer a case to the Tribunal. For example, where the case can't be settled, and the Human Rights Commission believes that the merits of issue or issues in the case may depend in whole or in part on assessing the credibility and/or reliability of witnesses.
13. Provide that where the Human Rights Commission decides not to refer a case to the Tribunal, and where the complainant asks the Human Rights Commission to reconsider this decision under s. 37 of the Code, the complainant is entitled to an in-person oral hearing before three Human Rights Commissioners who will reconsider the question whether to refer the complaint to the Tribunal. This amendment should provide that no evidence will be called on such hearings, nor shall procedural motions be considered. The parties shall have strict time limits e.g. 30 minutes per side, unless the Human Rights Commissioners exercise their discretion to extend the time.
14. Add a strong privative clause to insulate from judicial review a decision by the Human Rights Commission to refer a complaint to the Tribunal, except where the respondent can show that the Human Rights Commission acted in bad faith. This privative clause should not apply when the Human Rights Commission decides not to refer a complaint to the Tribunal.
15. Give the Human Rights Commission a clear mandate to monitor and enforce Tribunal orders.
16. Provide for an external forensic audit of the Human Rights Commission by a person to be appointed by the Government, for purposes of making its processes for handling cases fairer and more expeditious, with a report to be made public within six months.
17. Provide for the appointment of an advisory group to advise the Human Rights Commission, as proposed in Bill 107's new s. 31.1
18. Provide for the Human Rights Commission to report directly to the Legislature.

STREAMLINE HUMAN RIGHTS TRIBUNAL
19. Broaden the Tribunal's remedy jurisdiction e.g. to remove the case law requirement that a remedy must flow from and be linked to the "subject matter of the complaint", but not permitting legal costs or user fees to be ordered against the complainant.
20. Amend the mandate of the Tribunal to emphasize its duty to adopt procedures that are expeditious without overriding the Statutory Powers Procedure Act, except,
a) Authorizing the Tribunal to require that any issue of procedure or of law or mixed fact and law that does not finally dispose of the case may be decided after written submissions in lieu of an oral hearing; and
b) Providing the Tribunal with a clear mandate to impose strict time limits for any oral submissions.
21. Require the Tribunal to review and revise its rules of practice, after holding an open, accessible consultation with stakeholders, to provide a less judicialized, more informal procedure for expeditious hearings, without overriding the Statutory Powers Procedure Act and the duty of fairness.

ENSURE HUMAN RIGHTS SYSTEM'S FUTURE EFFECTIVENESS
22. Provide for an independent non-partisan process for reviewing nominations for appointment as a member of the Tribunal, or as an Human Rights Commissioner, with a mandate to give priority to expertise in human rights and discrimination issues.
23. Provide for a review of the Code to be undertaken within three years of these amendments coming into force, to be conducted by an independent person, appointed by the Government, with a report to the Legislature to be made public. The review provisions should be similar to those in the Accessibility for Ontarians with Disabilities Act 2005.

ENSURE NEW LEGAL SUPPORTS FOR COMPLAINANTS
24. Provide and fund community-based legal supports to advise prospective human rights complainants on whether to file a complaint, assist with drafting complaints, advise and represent complainants through the Human Rights Commission process leading to referral of the case to the Tribunal (e.g. in the investigation process, at Human Rights Commission efforts to mediate and conciliate the case, and in urging the Human Rights Commission to refer the case to the Tribunal) and in some cases represent the complainant during Tribunal proceedings.