Ontario Human rights Reform - A call to Action

McGuinty Government's announcement of amendments to Bill 107 is thin gruel that won't fix this flawed bill

November 19, 2006

SUMMARY

At the November 15, 2006 commencement of Toronto public hearings on the controversial Bill 107 (the McGuinty Government's plan to weaken the Human Rights Commission, Attorney General Michael Bryant made a 15 minute statement GENERALLY DESCRIBING amendments he intends to propose in response to criticisms of this bill. He did not table the amendments.

At a technical briefing his Ministry staff provided community groups on November 16, 2006, it was evident that the amendments are still being written. They didn't say when they will be finished, or when they will be made public. It was revealed at the technical briefing that the Government still has not figured out many of the key details to be included in those amendments. Over nine months after the Government announced it would weaken the Human Rights Commission, it still doesn't know many vital details on how to replace it.

This update gives you an initial analysis of the Government's announcement, based on the short document the Government released to explain its plans. To see that Government document, visit:
http://www.attorneygeneral.jus.gov.on.ca/english/news/2006/20061115-hr-pa.asp

The Government's planned amendments don't fix Bill 107's major problems. They don't undo the McGuinty Government's fundamental breach of its understanding with Ontario's disability community regarding the Accessibility for Ontarians with Disabilities Act.

The proposed amendments don't ensure that Bill 107 delivers what the Government has promised. They are mostly cosmetic changes. Contrary to Government claims, they don't revamp the bill. At most, they make minor adjustments to eliminate some of the most extreme excesses in the bill's drafting, while leaving the bill's core flaws in place. They leave many important questions unanswered.

This announcement makes it clear that the Government is still not listening to and taking seriously the concerns of the many who have raised their voices in opposition to Bill 107 in the public, the media, and the Standing Committee hearings. Instead, it is still principally listening to the small vocal group who have supported Bill 107 from the start, mainly some lawyers.

The McGuinty Government held back making this vague announcement until moments before the public hearings in Toronto began. This led the first presenter at the hearings to condemn the Government's timing as "public hearing by ambush." It denied the first presenters the chance to comment on the amendments. Given the minimal content in this announcement, and the failure to present the actual wording of the amendments, there is no reason why the Government could not have made this announcement weeks ago, to give presenters time to comment on them. The only presenters who didn't appear concerned at the Government's timing were the handful of lawyers who presented on November 15 and 16 in support of the bill. They were among the key advocates for the bill from the outset. Those presenters quickly endorsed the amendments, and, in several cases, didn't attend the Ministry's technical briefing on them.

We here provide a short overview of our analysis of the Government's proposed amendments. This is followed by a longer detailed analysis of each of the Government's proposed amendments, for the benefit of those wanting a more in-depth explanation. While we here refer to the "amendments," it is important to emphasize that the Government has not yet tabled the text of its amendments. Once they are tabled and made public, it will be necessary to closely examine them to see if they do what the Government says they will do.

OVERVIEW - KEY REACTION TO THE GOVERNMENT'S ANNOUNCEMENT

We first use the AODA Alliance's November 14, 2006 Checklist to assess the Government's announcement. Before addressing what the amendments do provide, it is important to identify what they don't do. They don't make any of the key changes to the bill that our checklist identifies.

1. The Government's announcement does not commit to any new funding for the under-funded human rights enforcement system. Without new funding, any reforms are doomed to fail, whether the Government's costly reform agenda, or our more economical Blueprint for Effective Human Rights Reform.

2. The Government's announcement doesn't ensure that every human rights complainant will be provided a free, publicly-funded independent legal counsel throughout the Tribunal process. The Government's announcement only commits to establishing a Government-funded Human Rights Legal Support Centre. However, it does not commit to sufficient public funding to fulfill the Government's repeated pledge of free lawyers for all. Unless the Government keeps its word that every human rights complainant will be given a free publicly-funded legal counsel, Bill 107 could unfairly throw unrepresented discrimination victims into a Human Rights Tribunal legal process against their opponents who most often can afford to hire a lawyer.

At the Ministry's technical briefing on the amendments , Ministry officials would not confirm that the amendments would ensure that the legal services to be provided by the Legal Support Centre would in all cases be delivered by a lawyer. Ministry officials would not confirm that the amendments would ensure free publicly-funded independent legal counsel for all regardless of income. We were advised that the Legal Support Centre would offer a range of services. Some would get full legal representation. Others would get advice. Others would be simply given some supporting information. The Legal Support Centre would decide what level of service would be given to each person seeking their help. The Centre would take into account such things as the case's urgency. In other words, the Legal Support Centre would become a new "gate-keeper," with its own new line-up, and potential backlog.

3. The Government's announcement doesn't restore the right of every human rights complainant to a public investigation and, where evidence warrants, public prosecution of their human rights complaint, where the complaint isn't frivolous and is within the Human Rights Commission's jurisdiction. The Human Rights Code now provides this. Bill 107 repeals it. The announcement would restore to the Commission only a small fraction of the powers that Bill 107 now takes away from it.

4. The Government's announcement doesn't ensure implementation of prompt, timely improvements to the public enforcement process for human rights through the Human Rights Commission, such as those proposed in our Blueprint for Effective Human Rights Reform.

5. The Government's announcement does not 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. These include the right to control the presentation of one's case, to call relevant evidence, and to conduct relevant cross-examination of opposing witnesses. The proposed amendments would require the Tribunal rules to be "fair," but don't spell out what this means. This means that parties could spend years in court fighting over whether Tribunal rules are "fair." Now the Tribunal must obey the Statutory Powers Procedure Act. Bill 107 gives the Tribunal the power to override it. The amendments don't undo this.

6. The Government's announcement doesn't 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. That independent screening is needed to ensure that appointees are qualified and are chosen based on their merit, and not for political reasons. The announcement says that the appointees to the Tribunal or Commission must have qualifications in human rights. However, there is no commitment to eliminate or reduce the purely political power to select appointees and to ensure that the legislative criteria are the only considerations in their selection.

7. The Government's announcement doesn't ensure that when a discrimination victim wins a case, Tribunal orders are fully enforced and complied with.

Nothing in the Government's announcement eliminates the fact that Bill 107, either as is, or with these amendments, is a fundamental betrayal of the understanding with the McGuinty Government during negotiation of the contents of the Accessibility for Ontarians with Disabilities Act that we could rely on the Human Rights Commission's investigation and enforcement powers. Our entire negotiation of that Act, and our endorsement of it in its final form, was entirely built on the firm foundation of the continued availability of the Human Rights Commission's investigation/public prosecution mandate. Even if Bill 107 is amended as the Government proposes, it is still a complete betrayal of that understanding.

Beyond the foregoing, what does the Government's announcement include? It adds to the bill criteria for qualifying for appointment as a Human Rights commissioner or Human Rights Tribunal member. These cosmetic changes include no enforcement or oversight, and won't have any real impact on who is appointed to those posts. It makes the purely cosmetic change of having the Human Rights Commission's glossy "annual report" filed with "the people," rather than the minister and Legislature. This means nothing since that report now always ends up with the public. It also adds the cosmetic change of letting the Commission make other reports to the public. The Commission has been doing that for years in the absence of any such amendment.

The announcement appears to restore at least some of the Commission's existing power to launch and investigate complaints on its own, but none for cases which discrimination victims launch. The Government's announcement leaves the Commission's power to initiate its own cases of questionable use for people who are discrimination victims. This is because Bill 107, before and after the amendments, won't let the Commission seek remedies for the victims of discrimination .

The announcement modestly improves the bill by giving the Commission the right to intervene in any case before the Tribunal. This is a right the Government previously claimed that Bill 107 would provide. However the bill doesn't give the Commission its important lead public prosecutor role at such hearings, and gives the Commission no investigation powers needed to make its interventions at the Tribunal most effective.

The announcement proposes to amend the bill to provide that Tribunal rules of procedure must be "fair" and that a human rights case that is within the Human Rights Tribunal's jurisdiction won't be decided without a chance to make oral submissions. However, the Government hasn't committed to restore to the Tribunal its current duty to obey the important fair procedure requirements of the Statutory Powers Procedure Act, a duty that Bill 107 lets the Tribunal override.

The announcement extends the deadline for filing a human rights complaint from the current six months to one year. While this is an improvement, the Government hasn't explained why it hasn't extended this deadline to two years, the deadline applicable to most civil claims.

The announcement proposes to reduce the number of situations where the Tribunal can throw out a case without a hearing. However, the Government's announcement's wording and the explanation at the technical briefing make this announcement so confusing that it will be impossible to comment on it before seeing the amendments' wording.

The announcement positively commits to remove from the bill the Tribunal's power to charge user fees. The Tribunal has no such power at present. Thus, what is accomplished here is to stop Bill 107 from making things worse for discrimination victims.

DETAILED ANALYSIS OF EACH CHANGE THE GOVERNMENT IS PROPOSING

We first quote what the Government's announcement said on a topic. In each case, the Government announcement first quotes the relevant provision of the current Bill 107. It then briefly says what the Government's amendments are to do to the provision quoted. We then comment on the specific announcement.

1. INDEPENDENT SCREENING OF APPOINTMENT OF COMMISSIONERS TO THE HUMAN RIGHTS COMMISSION

Government Announcement:

The Commission
(Note: Bill 107's current provision) 27. (2) The Commission shall be composed of such persons as are appointed by the Lieutenant Governor in Council.

Amend to add appointment criteria:
(a) experience, expertise, interest in and sensitivity to human rights;
(b) representative of the diversity of Ontario's population.

Our Comment:

This is mere window-dressing. It will make no practical difference in who gets appointed as Human Rights Commission commissioners. Every Government in power (including the McGuinty Government) proudly proclaims that the people they appoint as Human Rights Commissioner are highly qualified based on the very criteria that the McGuinty Government here says it is going to add to Bill 107.

Neither Bill 107 nor the announced amendments open up the totally secret political process of appointing Human Rights commissioners to public scrutiny. In addition, neither Bill 107 nor the announced amendments enable anyone to challenge and overturn an appointment of a commissioner if they don't in fact meet these statutory qualifications.

What is needed is the establishment of an open appointments process that includes an independent advisory committee, separate from Government, of respected members of the public, who will screen potential nominees to ensure they are qualified. That advisory committee could then forward recommendations to the Government for appointment as Human Rights commissioner. The Government could be required to select only from those the advisory committee recommends. This would help reduce the role of political favouritism in such appointments.

Neither Bill 107 nor the announced amendments will establish any independent screening of nominees to the Human Rights Commission. At the technical briefing on the amendments, we were told that nothing could be done about this because it is a government-wide issue regarding public appointments. Yet there is no reason why nominees for Human Rights commissioners cannot be screened by such an advisory committee, even if the Government is wrestling with how to screen public appointments to other bodies. Government needn't stall needed reform here just because it can't make up its mind on public appointments reform outside the human rights system.

2. WILL HUMAN RIGHTS COMMISSION REPORT TO THE ATTORNEY GENERAL OR THE LEGISLATURE

Government Announcement:

Annual report (Note: Bill 107's current provision)
31.2 (1) The Commission shall make a report to the Minister no later than June 30 in each year upon the affairs of the Commission during the year ending on March 31 of that year.

Amend to provide that:
The Commission would make an annual report to the people.

Report tabled in Assembly (Note: Bill 107's current provision)
(2) The Minister shall submit the report to the Lieutenant Governor in Council who shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session.

Amend to provide that:
The Commission would deliver the report to the Speaker who would lay the report before the Assembly.

Human Rights Reports
No provision in Bill 107

Amend to provide that:
The Commission would be able to make any other reports respecting human rights as it considers appropriate and could present such reports to the public or any other person it considers appropriate.

Our Comment:

This superficial change is purely cosmetic . Now s. 31 of the Human Rights Code requires the Commission to give its annual report to the Attorney General who must then submit it to the Legislature. Bill 107's s. 31.2 mirrors this.

The Government's announcement would merely change this cosmetically by saying that the Commission shall make its report to the people. This will make no practical difference.

The Commission's annual report is merely a glossy document that summarizes what the Commission has done over the past year. No matter whether that public report is filed with the Attorney General or the Legislature or the "people,” it ends up in the public domain.

The Government's announcement proposes to add to the bill a provision that also lets the Commission make other reports. Again, this adds nothing. The Commission can do that now, and has done so in the past.

Most important is what this announcement does not do. Right now the Human Rights Commission is administratively under the Attorney General's Ministry. There is an administrative relationship between the Commission's senior officials and the Ministry's senior officials. We have called for the Human Rights Commission to no longer have any administrative reporting obligation to the Government.

Instead, the Commission should administratively report directly to the Legislature, as does Ontario's Ombudsman. This is because the Commission investigates and prosecutes the Government. It should not be administratively supervised by that same Government.

The Government announcement does not commit to this change, which would be much more than a cosmetic one. At the technical briefing, we were advised that the Government doesn't intend the amendments to make the Commission have the kind of direct reporting relationship to the Legislature that Ontario's Ombudsman has. The Government has given no reason why it won't make the meaningful change we requested, rather than its cosmetic change.

3. COMMISSION'S INVESTIGATION AND PROSECUTION POWERS

Government Announcement:

Public Inquiry
No provision in Bill 107.

Amend to provide Commission with public inquiry powers, including:
power of entry
power to examine records, documents or things etc.
power to question any person
power to require assistance in compiling information
power to enforce compliance

Application by Commission (Note: Bill 107's current provision)
36. (1) The Commission may apply to the Tribunal for an order under section 43 if the Commission is of the opinion that,
(a) there are infringements of rights under Part I that are of a systemic nature and that the Commission has not been able to adequately address under Part III;
(b) an order under section 43 could address the systemic issues; and
(c) it would be in the public interest to make an application under this subsection.

Amend to remove paragraphs (a), (b) and (c) and to provide that:
The Commission could bring an application if it is of the opinion that the application is in the public interest.

Our Comment:

This announcement proposes a restoration of only a mere fraction of the important investigation/public prosecution powers that Bill 107 would strip from the Commission. It is a slight improvement on Bill 107. However it falls dramatically short of what is needed to undo the serious damage that Bill 107 causes.

Under the current Code, the Commission receives all human rights complaints from the public. It must investigate all non-frivolous complaints that are within its jurisdiction and that aren't better addressed elsewhere. Where a complaint has merit, isn't settled by agreement and warrants a hearing, the Commission can prosecute the complaint before the Human Rights Tribunal. Bill 107 takes all that mandate away from the Commission. The Government's announcement doesn't propose restoring any of it to the Commission.

Beyond this, under the current Code, the Commission also has the very broad power to initiate its own complaints to address a human rights violation even if no member of the public had filed a complaint with it, and to seek any remedy for past wrongs or to prevent future violations. Bill 107 proposes to dramatically reduce the Commission's power to launch its own complaint. Bill 107 would strip from the Commission any power to investigate a complaint that it had initiated.

These amendments may only restore to the Commission some of the powers it had under the current Code to launch and litigate cases that the Commission initiates itself. We will need to study the amendments' wording when the Government makes them public, to see if they entirely restore to the Commission all the power Bill 107 removes regarding the Commission initiating its own complaints.

The amendments also appear to restore some of the Commission's current investigation powers, though seemingly only in the narrow context of a complaint the Commission initiates itself. In the Government's announcement, the Commission's investigative powers are listed in the context of the Commission holding a "public inquiry.” There is, however, no indication of the meaning of these "Public Inquiries,” of what would trigger an inquiry, of how they will be conducted, of whether they will take the form of public hearings, and of what kind of decisions they will produce.

Even if the Commission were to initiate its own human rights complaint, Bill 107 would dramatically restrict the kinds of remedies that the Commission can seek to a much narrower range than those it can seek under the current Code. The Government announcement doesn't promise to restore the range of remedies the Commission can seek in such proceedings. This is a serious problem, which threatens to make the Commission's power to launch its own complaints far less effective than under the current Code.

Even after these amendments, Bill 107 is a formula for needlessly-wasteful, duplicative human rights proceedings to address a single problem. Under Bill 107, if the Commission initiates its own complaint to address a human rights problem, and wins the case, it cannot seek a remedy for individuals who suffered losses and injuries from the proven human rights violation. Those discrimination victims would have to then launch their own duplicate case and re-litigate the same issue again to recover a remedy like financial compensation .

4. POWER OF COMMISSION TO INTERVENE IN CASES THAT INDIVIDUALS BRING BEFORE THE TRIBUNAL

Government Announcement:

Intervention by Commission
No provision in Bill 107.

Amend to provide that:
The Commission would have the right to intervene in any proceeding before the Tribunal, subject to the Tribunal's rules.

Our Comment:

This proposed amendment would give the Commission the right to intervene at the Tribunal in any case an individual privately files with the Tribunal. Last spring the Government claimed Bill 107 already did this. At the public hearings, presenters pointed out that the bill didn't do what the Government said it did .

This is a very modest improvement over Bill 107. However it falls massively short of the current Code, which gives the Human Rights Commission the role of lead public prosecutor in every case that comes before the Tribunal.

This amendment, standing alone, may well have little practical punch. It gives the Commission no power to conduct investigations to find evidence to present at a hearing where it intervenes. It gives the Commission no right to know what cases are filed with the Tribunal. The Government hasn't committed that if Bill 107 is passed, the stripped-down Commission will have resources it needs to monitor all complaints before the Commission and to send lawyers to intervene in more than a handful of Tribunal cases. Without these critical commitments, the Commission's power to intervene may be hollow .

5. INDEPENDENT SCREENING OF APPOINTMENTS TO THE HUMAN RIGHTS TRIBUNAL

Government Announcement:

(Note: Bill 107's current provision) 32. (1) The Tribunal known as the Human Rights Tribunal of Ontario in English and Tribunal des droits de la personne de l'Ontario in French is continued and shall be composed of such members as are appointed by the Lieutenant Governor in Council.

Amend to provide that:
Members of the Tribunal would have expertise in human rights.

Our Comment:

This proposal has the same serious problems as described above regarding appointments to the post of commissioner of the Human Rights Commission.

6. TRIBUNAL'S DUTY TO OBEY THE STATUTORY POWERS PROCEDURE ACT WHEN IT HOLDS A HEARING

Government Announcement:

Rules governing practice and procedure (Note: Bill 107's current provision)
34. (1) The Tribunal may make rules governing the practice and procedure before it.

Disposition of applications (Note: Bill 107's current provision)
37. (1) The Tribunal shall dispose of an application under this Part through a hearing or through any alternative dispute resolution mechanism provided for in the Tribunal rules.
(2) The Tribunal shall adopt the most expeditious method of disposing of an application on the merits.

Amend to provide that:
The Tribunal would be able to make rules of practice and procedure, including alternatives to traditional adversarial or adjudicative procedures where the Tribunal is of the opinion that the rules will facilitate fair, just and expeditious resolutions on the merits of the matters before it.
An application that is within the jurisdiction of the Tribunal could not be finally disposed of without affording the parties an opportunity to make oral submissions.

Our Comment:

These proposed amendments don't correct the serious problem that Bill 107 creates. Bill 107 takes away important legal rights that parties, including discrimination victims, now are entitled to when they appear at Human Rights Tribunal hearings.

Specifically, the Government's announcement does not restore to the Human Rights Tribunal its current, important duty to respect the fair procedure rights of all parties at a Tribunal hearing that are now guaranteed to them by the Statutory Powers Procedure Act (SPPA).

Under the current Human Rights Code, the Tribunal must obey the SPPA. Bill 107 empowers the Tribunal to make rules that override the SPPA. (See Bill 107 ss. 34(2) and 38(2)) The Government's announcement doesn't commit to amend or even refer to the Bill 107 provisions that let the Tribunal violate the SPPA. It doesn't commit to requiring the Tribunal to obey the SPPA.

The provisions of Bill 107 which are the serious cause of concern, and that the Government's announcement doesn't fix, are as follows:

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.

It is not good enough for the Government announcement to simply commit to amending the bill to require that Tribunal rules be "fair.” Such an amendment would be far more vague than are the SPPA's specific and straightforward provisions. The SPPA gives parties to a Human Rights Tribunal hearing the right to call relevant evidence, to cross-examine opposing witnesses, and generally, to have control over the presentation of their case. It also gives the Tribunal power to stop a party from calling unduly repetitious witnesses, or for abusing the Tribunal's procedures.

The Government appears to contemplate giving the Tribunal the paternalistic power to control which witnesses a party may call to prove their case, even if the witnesses are relevant and not unduly repetitious. From the technical briefing and from the November 15, 2006 presentation to the Legislature's Standing Committee on Justice Policy by the Tribunal Chair Michael Gottheil, the Tribunal appears to be contemplating a regime in which the Tribunal will be more "activist" and may either call witnesses itself, or direct which witnesses a party may call to prove its case. Increased informality and flexibility at hearings is desirable. However there is cause for serious concern if the Tribunal takes over the role of the Commission or the complainant in deciding how to prove that discrimination has occurred. This is a concern especially when the Tribunal starts the proceeding as the judge who knows nothing about the case, and is not the discrimination victim who knows the case they seek to prove.

These amendments threaten to tie up the Tribunal and discrimination victims in years of costly litigation in court, in fights over whether new Tribunal rules are "fair.” If a court decides that a Tribunal rule of procedure isn't "fair,” it could strike down the rule. In contrast, under the current Code, if the Tribunal obeys the SPPA's requirements for a fair hearing, there is far less risk of costly court cases over the legality of the Tribunal's rules.

7. TIME LIMITS FOR FILING A HUMAN RIGHTS complaint

Government Announcement:

Application by a person (Note: Bill 107's current provision)
35. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 42,
(a) within six months after the incident to which the application relates; or
(b) if there was a series of related incidents, within six months after the last incident in the series.

Amend to provide that:
The limitation period to file a complaint would be extended to one year.

Our Comment:

This is an improvement. It permits a discrimination victim to file a complaint within one year of the human rights violation, rather than the six month deadline that now applies.

Our Blueprint for Effective Human Rights Reform calls for the deadline to be extended from the current six months to two years. Two years is the deadline that applies to most civil court claims. We see no reason why fundamental human rights deserve any less legal protection.

8. WHEN A TRIBUNAL CAN DISMISS A CASE WITHOUT A HEARING

Government Announcement:

Dismissal of proceeding without hearing (Note: Bill 107's current provision)
41. (1) The Tribunal may dismiss a proceeding, in whole or in part, without a hearing, if,
(a) the proceeding is frivolous, vexatious or is commenced in bad faith;
(b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal;
(c) some aspect of the statutory requirements for bringing the proceeding has not been met;
(d) the application is made under section 35 and the facts alleged in the application, even if true, do not disclose an infringement of a right of the applicant under Part I;
(e) the application is made under section 36 and the facts alleged in the application, even if true, do not disclose infringements of a right under Part I that are of a systemic nature;
(f) the application is made under subsection 45.1 (3) and the facts alleged in the application, even if true, do not disclose a contravention of a settlement; or
(g) the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of an application.

Amend to:
Delete all paragraphs except paragraph (g).

Our Comment:

This proposed amendment may be well-intentioned but is quite confusing. When the Government first announced Bill 107, it claimed that every human rights complainant would get a hearing before the Human Rights Tribunal. Yet Bill 107 didn't say this. Instead, it gave the Tribunal sweeping powers to dismiss a case without a hearing, or to defer a case indefinitely without a hearing.

With these amendments, the Government is trying to close the gap between what the Government has said and what the bill actually does. It therefore seems to want to reduce the number of situations when the Tribunal can throw a case out without holding a hearing.

However, the Government's proposed amendment doesn't appear to reduce the Tribunal's power to defer a hearing. It is also unclear whether the Tribunal will still have powers to set out additional situations when a case can be dismissed without a hearing.

It might appear from this proposed amendment that the bill, once amended, may require the Tribunal to hold a full hearing even if a complaint is frivolous or outside the Tribunal's jurisdiction (e.g. a complaint against the federal government) Ministry officials were asked about this at the technical briefing. Their answer made things even more confusing. They suggested that the Tribunal would possibly have power to dismiss a case as frivolous or outside the Tribunal's jurisdiction pursuant to the Statutory Powers Procedure Act. That Act says:

4.6 (1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;
(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or
(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

If that is correct, then with these amendments, the Tribunal will have far more powers to dismiss cases without first holding a hearing than will be apparent from simply reading the bill . If that isn't confusing enough, it becomes even more confusing if Bill 107 continues to give the Tribunal power to make rules that disregard the SPPA. We asked the Ministry officials to clarify this. They weren't able to give much clarification.

It is also unclear how to square all of this confusion with the Government's commitment, quoted above, to amend the bill to require that no case within the Tribunal's jurisdiction will be finally decided without a chance for oral submissions. It will thus be vital to see the actual wording of the amendments before reaching any final assessment on this part of the Government's announcement.

9. TRIBUNAL'S POWER TO CHARGE USER FEES

Government Announcement:

Fees (Note: Bill 107's current provision)
45.2 Subject to the approval of the Minister, the Tribunal may establish and charge fees for expenses incurred by the Tribunal in connection with a proceeding under this Part.

Amend to:
Delete provision.

Our Comment:

The current Code doesn't give the Tribunal power to charge user fees. Bill 107 was going to give the Tribunal power to charge user fees. This was widely condemned.

This proposed amendment is positive since it would eliminate that flawed provision from Bill 107. This leaves us back where we were on this issue before the Government tabled Bill 107.

10. LAWYERS TO REPRESENT DISCRIMINATION VICTIMS

Government Announcement:

Legal and other services (Note: Bill 107's current provision)
46.1 (1) The Minister may enter into agreements with prescribed persons or entities for the purposes of providing legal services and such other services as may be prescribed to applicants or other parties to a proceeding before the Tribunal.
(2) An agreement under subsection (1) may provide for the payment for the services by the Ministry.

Amend to provide that:
The Minister would establish a Human Rights Legal Support Centre to provide a range of services including information, support, advice, assistance and legal representation.
The Minister would fund the Legal Support Centre.
The services would be available, where needed, across the province.
Any person who is, has been, or may be an applicant seeking a remedy at the Tribunal would be eligible for the Centre's services.

Our Comment:

This amendment falls far short of what the Government promised. Bill 107 takes the Human Rights Commission away as the public investigator and prosecutor of human rights complaints filed by Ontarians. If discrimination victims go to a hearing without a lawyer, and without a prior investigation of the evidence to support their case, they won't be able to effectively present their case. This will be even worse if the party they complain against has a lawyer to oppose them.

The Government has thus made the grand and costly promise that it would amend Bill 107 to assure free publicly-funded independent legal counsel to all human rights complainants. Here is what Liberal MPPs said at last summer's public hearings on Bill 107:

August 8, 2006 London

David Zimmer: “I should point out -- you may or may not be aware of this -- the Attorney General has publicly committed in the Legislature -- it's a matter of record in Hansard -- to amend section 46 to provide full legal support to Ontarians who have to turn to the human rights system. So at the end of this process, I expect, as the Attorney General has said, there will be an amendment to ensure full legal support of complainants at the tribunal/commission.

Mr. Zimmer: Just to respond to your comment -- and I thank you for your support and the constructive criticism that you offered. We want to work with the community to make this an even better bill.

You offered the comment that the community hasn't seen anything by way of amendments yet. Let me just say this. First, I did have my BlackBerry out before and I read the commitment the Attorney General made in the Legislature, for instance, on section 46, to ensure that there was
sufficient, proper and effective representation.

Deborah Matthews: “I asked the Attorney General in the Legislature if he would clarify the intent of the government to ensure that people do have the legal representation they need, and he has given that assurance.”

Deborah Matthews: The other thing is that I raised the question in the House with regards to legal support and was assured very, very clearly by the Attorney General that there will be an amendment that will ensure that people will get the support they need to achieve justice. Your concern has been heard and assurances have been given. So be patient. This does take time, and we will address your concerns.

August 9, 2006 Ottawa

Mr. David Zimmer (Willowdale): I just want to point out that subsequent to the bill being introduced, in response to a question in the Legislature, the Attorney General did commit to introducing an amendment which would ensure that everyone before the tribunal would, in fact, have their own independent legal counsel. So your point on the representation has been well taken and addressed by the Attorney General in the Legislature. He's made that public commitment.

August 10, 2006 Thunder Bay

Mr. Zimmer: Just in case you're not aware, I want to point out that the Attorney General in the Legislature has made a clear and unequivocal commitment to amend the bill to ensure that everybody who has a complaint before the tribunal does receive legal support, has a lawyer attached to their case to see the case through with them.

Mr. Bill Mauro (Thunder Bay-Atikokan): The concern has been raised by the two or three speakers I've heard about whether or not people, if they go directly to the tribunal, are going to have the ability to have publicly funded representation if they're the complainant. The Attorney General has publicly committed in the House to amendments in the legislation to ensure that that will happen.

The Government's announcement says that the amendments will ensure that a Human Rights Legal Support Centre is established and funded by Government. However, it doesn't commit to ensuring that every human rights complainant has a publicly-funded lawyer at the Tribunal, or that legal supports will in all cases be provided by lawyers, or that "legal supports" will in each case include legal representation (a lawyer presenting your case), and not just legal information or advice (a lawyer or non-lawyer telling you how the system works and how to present your case, and then sending you off to the Tribunal to fight your case yourself).

The Government's announcement doesn't say that the Legal Support Centre will be given legal investigation powers, like those which the Government is taking away from the Human Rights Commission. Even if you are given your own lawyer, they will be far less effective if they don't have the critical evidence you need to win your case.

The proposed amendment doesn't ensure that the Legal Support Centre will have enough lawyers to serve at least 2,500 complainants at the Tribunal per year, and the thousands and thousands more potential complainants who will call for advice each year. At the technical briefing, we were advised that there is no Government decision on the amount of funding this Centre will receive. There is nothing in the Government's announcement that would stop a future Government from reducing the Centre's funding. There is also nothing in the Government's announcement that ensures that discrimination victims will get timely services from the Centre. When the multi-year line-up moves from the backlogged Human Rights Commission to the Legal Support Centre, it is fair to expect a new backlog at the Legal Support Centre.

The Announcement says that "The services would be available, where needed, across the province..” It doesn't indicate whether this will simply be over-the-phone summary information and advice, or delivered via websites, or delivered on-location via fully-accessible offices in different communities around Ontario.

The Government and Bill 107's supporters (mainly some lawyers) claim that this bill implements the recommendations of two studies on human rights reform, the Cornish Report and the La Forest report. Yet the Government's failure to fulfill its promise of assured lawyers for all complainants flies in the face of what both the Cornish and La Forest reports said.

The Cornish Report emphasized the importance of human rights complainants having effective representation, especially during a human rights Tribunal hearing. It stated:

"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 Quιbec 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.”