Ontario Human rights Reform - A call to Action

Handy checklist for evaluating McGuinty Government's forthcoming amendments to the controversial Bill 107
November 14, 2006

SUMMARY

The McGuinty Government has told the media that it will be announcing dozens of amendments to the controversial Bill 107 before the Legislature's Standing Committee public hearings on the bill resume this Wednesday, November 15, 2006 at Queen's Park in Toronto. We thought it would help you to provide a checklist of questions that you may wish to consider when reviewing the amendments. We also provide some more background to help you put this checklist in context. For those who don't have time to read all the background information below, you can just quickly look over the checklist.

We have asked the Government to give us these amendments in an accessible electronic format when they are made public. We will circulate them as quickly as possible after we receive them. We don't now know when the amendments will be made public, and when we will receive an accessible copy of them.

The presenters at the first two days of the Toronto public hearings will include Ontario Human Rights Chief Commissioner Barbara Hall. In the past she has said she shares many of the concerns about Bill 107 that community groups have raised. We hope that in her presentation at the public hearings she will make public what concerns she shares. Check out:

http://www.aodaalliance.org/reform/voices-concerns.asp

The agenda for the first two days of the public hearings include, among others, 5 of the key lawyers who have been the strongest and most public advocates for Bill 107. The Government appears to be sending its heaviest hitters to the bat right at the start. This makes it all the more important that the Standing Committee not cut off the public hearings before all those who wish to present get a time slot to do so. Don’t' expect the first two days of Toronto hearings to fully air both sides of this debate. Presenters are listed at:

http://www.ontla.on.ca/committees/agenda_justice.htm
and http://www.ontla.on.ca/committees/agenda_justice_2.htm


CHECKLIST FOR ASSESSING PROPOSED AMENDMENTS TO THE CONTROVERSIAL BILL 107

We encourage you to think about these questions when assessing any amendments proposed to reform Ontario's under-funded human rights enforcement system:

1. Under the amendments, will Ontario's chronically under-funded human rights system, including the Human Rights Commission, receive a permanent substantial increase in funding to ensure that it can clear its backlog and effectively handle new cases in a timely fashion?

2. Do the amendments ensure that the Human Rights Commission retains its full mandate to investigate all non-frivolous human rights complaints, and publicly prosecute them where the evidence warrants it?

3. Do the amendments ensure implementation of prompt, timely improvements to the public enforcement process for human rights through the Human Rights Commission?

4. Do the amendments ensure that the non-elected Human Rights Tribunal can't override the important procedural rights that parties to Tribunal hearings are now guaranteed by the Statutory Powers Procedure Act, including the right to control the presentation of one's case, to call relevant evidence, and to conduct relevant cross-examination of opposing witnesses?

5. Do the amendments establish a new process, independent of government, for screening nominees for appointment of members of the Human Rights Tribunal and commissioners of the Human Rights Commission, to ensure that appointees are qualified and are chosen based on their merit, and not for political reasons?

6. Do the amendments fulfill the McGuinty Government's pledge to ensure that every human rights complainant is provided free, publicly-funded, independent legal counsel at the Human Rights Tribunal regardless of the complainant's income?

7. Do the amendments ensure that when a discrimination victim wins a case, the Tribunal orders are fully enforced and complied with?

BACKGROUND

1. New Funding for Under-funded Human Rights Enforcement System Needed

Any effective reform of Ontario's human rights system must include substantial and permanent new public funding. Ontario's human rights system has been chronically under-funded for years. Yet the number of human rights cases and their complexity has gone up.

This new funding will be needed no matter which kind of reforms the Ontario Legislature enacts. Bill 107's plans are especially expensive. Under Bill 107 and the Government's pledges, every case will require a Tribunal adjudicator. Also, the McGuinty Government has promised every complainant a free publicly-funded lawyer. In contrast, under the current system, most cases are informally resolved by Human Rights Commission officers or mediators, at lower cost to the public.

If the Government were to implement the Blueprint for Effective Human Rights Reform that critics of Bill 107 made public last week, this would require less public funding than the Bill 107 approach.

Any new cash must be accompanied by an ongoing commitment of increased funding for the human rights system. The next provincial election is under 11 months away. We need an ongoing multi-year funding commitment, not just a sudden blip in pre-election funding that could easily drain away the next year.

Bill 107 doesn't commit the Ontario Government to spending another dime on the human rights system. The McGuinty Government has not announced any new, ongoing funding for the human rights system, even though it announced its plans for reforming the system some 9 months ago. To the contrary, Attorney General Michael Bryant was quoted in the media this past weekend as denouncing calls for new funding.

2. The Need to Have a Public Human Rights Enforcement System, with the Human Rights Commission at its Vanguard

Any reform to the human rights system must be built on the bedrock that human rights violations are a public wrong, not just a private injury to the discrimination victim. Human rights violations must be publicly investigated and publicly prosecuted by a public law enforcement agency, the Human Rights Commission. They should not be reduced to a mere private wrong for which individuals must find a lawyer to enforce their rights. A significant proportion of any new funding for the human rights system needs to go to the Human Rights Commission, so that it can promptly do its job.

Bill 107 does not do this. It removes the Human Rights Commission as public investigator and lead public prosecutor in most cases. It leaves it to individual discrimination victims to enforce their own human rights before the Human Rights Tribunal. (See more about the Government's promised new human rights legal clinic, below)

3. Need for Human Rights Tribunal to Respect the Rights of Parties Appearing Before It

When the Human Rights Tribunal holds a hearing to decide if a person's human rights were violated, its hearing must be fair. An Ontario law now spells out the procedures that the Human Rights Tribunal must follow to make sure that the Tribunal's hearings are fair. That law is called the Statutory Powers Procedure Act. (SPPA)

The SPPA lets each party, and not the Tribunal, decide how to present their case. It requires the Tribunal to give the parties notice that a hearing will be held. It lets parties (like a discrimination victim) bring a lawyer or other representative. It lets them call relevant witnesses. It lets each party cross-examine the witnesses called against them. It gives the Tribunal power to make sure no one abuses these procedures.

Human Rights Tribunals have become too slow and too back-logged. They need to be less formal, and to be less tied-up with technical procedural wrangling. However, the Tribunal should fix this without taking away the fundamental rights spelled out in the SPPA to ensure that proceedings are fair.

Bill 107 doesn't ensure this. Much the opposite. It gives the unelected politically-appointed Human Rights Tribunal the power to make rules of procedure that override the fundamental rights guaranteed by the SPPA, in the wrong hands this could be very damaging with no way to hold the Tribunal accountable.

Section 34 of the bill says in part:

34. (1) The Tribunal may make rules governing the practice and procedure before it.
(2) Without limiting the generality of subsection (1), the rules may,
(a) provide that the Tribunal is not required to hold a hearing;
(b) limit the extent to which the Tribunal is required to give full opportunity to the parties to present their evidence and to make their submissions;
(c) authorize the Tribunal to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances;
(d) prescribe practices and procedures that are alternatives to traditional adjudicative practices and procedures;
(e) govern any matter prescribed by the regulations.

Section 38 of the bill makes it even clearer:

(2) In the event of a conflict, this Act, the regulations and the Tribunal rules prevail over the Statutory Powers Procedure Act, despite section 32 of that Act.

The McGuinty Government has not publicly explained or justified why it wants to give the Tribunal this big blank cheque over people's basic rights. The Tribunal has announced that it has already hired staff to plan to implement its new responsibilities under Bill 107. It did this even though Bill 107 has not yet been passed by the Legislature, and despite media reports questioning whether Bill 107 will ever be passed. See:

http://www.hrto.ca/ and see http://www.aodaalliance.org/reform/update-101906.asp

It would be no solution to this problem for Bill 107 to be amended requiring the Tribunal to make rules of procedure that are ‘fair.’ Such a vague provision would lead parties to have to fight in court for years, at great expense, just to find out whether new Tribunal rules of procedure are ‘fair’ or not. Now, the SPPA makes it clear what procedures the Tribunal must follow. The SPPA gives the Tribunal lots of flexibility to make their hearings less formal and technical, while ensuring they are fair. It is better to have the stability and certainty of the SPPA then that kind of uncertainty and costly litigation.

There may be room for some modest exceptions to the SPPA. However, if the Government wants to propose narrow, focused and limited exceptions to the SPPA, it should spell out exactly what those modifications are before proceeding further on Bill 107. It should not expect the public to just give the Tribunal a blank cheque over our basic rights, and to trust the Government, now and into the far future not to abuse the huge new power Bill 107 doles out.

The AODA Alliance's draft brief on Bill 107 and the recently-released new Blueprint for Effective Human Rights Reform propose very small, narrow modifications to the SPPA at Tribunal hearings, not an outright elimination of the SPPA at Human Rights Tribunal hearings. Once we lose such rights, it is very hard to win them back!

4. A New Human Rights Legal Support Center Doesn't Solve Bill 107's Many Problems

The Government's promised new human rights legal clinic to help discrimination victims with human rights claims doesn't address any of these important issues. The Government has been claiming for months that Bill 107 establishes a human rights legal support center. The bill actually doesn't do this. It just permits the Government to do so, but doesn't require the Government to do so. It wouldn't stop a future Government from under-funding such a clinic, or slashing its funding altogether.

Even if the Government set up this promised clinic, and even if it were sufficiently funded so that it would provide timely legal advice and full representation by a lawyer to every human rights complainant (a huge financial cost), this won't make up for the chronic under-funding of the Human Rights Commission and the Human Rights Tribunal . It doesn't ensure that our human rights system is a public enforcement system. A private legal clinic is no substitute for a properly-funded, rejuvenated and strengthened Human Rights Commission. Finally, such a legal clinic doesn't ensure that the Human Rights Tribunal doesn't trample on basic, important rights that the SPPA guarantees, and that Bill 107 threatens.