Ontario Human rights Reform - A call to Action

GOVERNMENT RELEASES TEXT OF ITS BILL 107 AMENDMENTS - MORE THIN GRUEL THAT WON'T FIX A SERIOUSLY FLAWED BILL
November 28 2006

SUMMARY

We have just received the text of the Government's proposed amendments to Bill 107. We have only had a chance to quickly read them once. (See text below) They are scheduled for debate and vote tomorrow November 29, 2006 at the legislature's Standing Committee on Justice policy.

These amendments do little more than what the Attorney General announced two weeks ago, when he made a statement about them on November 15, 2006. yet he gave the impression at the Standing Committee in that statement that the Government was open to further amendments beyond those then announced. The Attorney General stated: "Firstly, these are not the only amendments under consideration by the government."

The amendments suffer from all the serious problems set out in our analysis of the Government's November 15, 2006 amendments statement. You can see that analysis at:

http://www.aodaalliance.org/reform/update-111906.asp

The amendments establish a Human Rights legal support Centre, but do not fulfill the Government's promise of a free independent legal counsel for all human rights complainants. In seemingly contradictory terms, the amendments say: "The Centre shall be independent from, but accountable to, the Government of Ontario as set out in this Act."

The Government will appoint its board of directors. i.e. a purely political appointment process. The amendments provide for government funding but don't require that funding to be adequate.

The amendments give the Human Rights Tribunal the extraordinary power to take over a hearing and call, examine or cross-examine witnesses. Now it is the complainant and respondent who decide which witnesses to call, and who get to cross-examine opposing witnesses.

The amendments do not give the Human Rights Commission the right to intervene in any case before the Human Rights Tribunal. They only give the Commission permission to ask to intervene in Tribunal cases. These amendments also give the human rights complainant the right to bar the Human Rights Commission from intervening, even if its intervention is otherwise in the public interest. This contradicts the Attorney General's commitment at the Standing Committee on November 15, 2006 as follows: "Amendments are being proposed and are before you to clarify that the commission would have the right to intervene in any application before the tribunal."

In the scarce hours left before the scheduled clause-by-clause debate on this bill, the public does not have a realistic opportunity to review these amendments and provide meaningful input. This is further proof that the Government should retract the McGuinty Muzzle Motion that cancelled the promised public hearings on this bill.


Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 5 (new subsections 27 (2.1) and (2.2) of the Act)

I move that section 27 of the Act, as set out in section 5 of the Bill, be amended by adding the following subsections:

Appointment
(2.1) Every person appointed to the Commission shall have knowledge, experience or training with respect to human rights law and issues.

Criteria
(2.2) In the appointment of persons to the Commission under subsection (2), the importance of reflecting, in the composition of the Commission as a whole, the diversity of Ontario’s population shall be recognized.

Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 5 (clause 29 (i) of the Act)

I move that clause 29 (i) of the Act, as set out in section 5 of the Bill, be struck out and the following substituted:

(i) to report to the people of Ontario on the state of human rights in Ontario and on its affairs;

Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 5 (new section 29.2 of the Act)

I move that section 5 of the Bill be amended by adding the following section to the Act:

Inquiries
29.2 (1) The Commission may conduct an inquiry under this section for the purpose of carrying out its functions under this Act if the Commission believes it is in the public interest to do so.

Conduct of inquiry
(2) An inquiry may be conducted under this section by any person who is appointed by the Commission to carry out inquiries under this section.

Production of certificate
(3) A person conducting an inquiry under this section shall produce proof of their appointment upon request.

Entry
(4) A person conducting an inquiry under this section may, without warrant, enter any lands or any building, structure or premises where the person has reason to believe there may be documents, things or information relevant to the inquiry.

Time of entry
(5) The power to enter a place under subsection (4) may be exercised only during the place’s regular business hours or, if it does not have regular business hours, during daylight hours.

Dwellings
(6) A person conducting an inquiry under this section shall not enter into a place or part of a place that is a dwelling without the consent of the occupant.

Powers on inquiry
(7) A person conducting an inquiry may,

(a) request the production for inspection and examination of documents or things that are or may be relevant to the inquiry;

(b) upon giving a receipt for it, remove from a place documents produced in response to a request under clause (a) for the purpose of making copies or extracts;

(c) question a person on matters that are or may be relevant to the inquiry, subject to the person’s right to have counsel or a personal representative present during such questioning and exclude from the questioning any person who may be adverse in interest to the inquiry;

(d) use any data storage, processing or retrieval device or system used in carrying on business in the place in order to produce a document in readable form;

(e) take measurements or record by any means the physical dimensions of a place;

(f) take photographs, video recordings or other visual or audio recordings of the interior or exterior of a place; and

(g) require that a place or part thereof not be disturbed for a reasonable period of time for the purposes of carrying out an examination, inquiry or test.

Written demand
(8) A demand that a document or thing be produced must be in writing and must include a statement of the nature of the document or thing required.

Assistance
(9) A person conducting an inquiry may be accompanied by any person who has special, expert or professional knowledge and who may be of assistance in carrying out the inquiry.

Use of force prohibited
(10) A person conducting an inquiry shall not use force to enter and search premises under this section.

Obligation to produce and assist
(11) A person who is required to produce a document or thing under clause (7) (a) shall produce it and shall, on request by the person conducting the inquiry, provide any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a document in readable form.

Return of removed things
(12) A person conducting an inquiry who removes any document or thing from a place under clause (7) (b) shall,

(a) make it available to the person from whom it was removed, on request, at a time and place convenient for both that person and the person conducting the inquiry; and

(b) return it to the person from whom it was removed within a reasonable time.

Admissibility of copies
(13) A copy of a document certified by a person conducting an inquiry to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Obstruction
(14) No person shall obstruct or interfere with a person conducting an inquiry under this section.

Search warrant
29.3 (1) The Commission may authorize a person to apply to a justice of the peace for a warrant to enter a place and conduct a search of the place if,

(a) a person conducting an inquiry under section 29.2 has been denied entry to any place or asked to leave a place before concluding a search;

(b) a person conducting an inquiry under section 29.2 made a request for documents or things and the request was refused; or

(c) an inquiry under section 29.2 is otherwise obstructed or prevented.

Same
(2) Upon application by a person authorized under subsection (1) to do so, a justice of the peace may issue a warrant under this section if he or she is satisfied on information under oath or affirmation that the warrant is necessary for the purposes of carrying out the inquiry under section 29.2.

Powers
(3) A warrant obtained under subsection (2) may authorize a person named in the warrant, upon producing proof of his or her appointment,

(a) to enter any place specified in the warrant, including a dwelling; and

(b) to do any of the things specified in the warrant.

Conditions on search warrant
(4) A warrant obtained under subsection (2) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Time of execution
(5) An entry under a warrant issued under this section shall be made at such reasonable times as may be specified in the warrant.

Expiry of warrant
(6) A warrant issued under this section shall name a date of expiry, which shall be no later than 15 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 15 days, upon application without notice by the person named in the warrant.

Use of force
(7) The person authorized to execute the warrant may call upon police officers for assistance in executing the warrant and the person may use whatever force is reasonably necessary to execute the warrant.

Obstruction prohibited
(8) No person shall obstruct or hinder a person in the execution of a warrant issued under this section.

Application
(9) Subsections 29.2 (11), (12) and (13) apply with necessary modifications to an inquiry carried out pursuant to a warrant issued under this section.

Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 5 (sections 31.2 and 31.3 of the Act)

I move that section 31.2 of the Act, as set out in section 5 of the Bill, be struck out and the following substituted:

Annual report
31.2 (1) Every year, the Commission shall prepare an annual report on the affairs of the Commission that occurred during the 12 month period ending on March 31 of each year.

Report to Speaker
(2) The Commission shall submit the report to the Speaker of the Assembly no later than on June 30 in each year who shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session.

Copy to Minister
(3) The Commission shall give a copy of the report to the Minister at least 30 days before it is submitted to the Speaker under subsection (2).

Other reports
31.3 In addition to the annual report, the Commission may make any other reports respecting the state of human rights in Ontario and the affairs of the Commission as it considers appropriate, and may present such reports to the public or any other person it considers appropriate.

Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 6 (subsection 32 (1) of the Act)

I move that subsection 32 (1) of the Act, as set out in section 6 of the Bill, is struck out and the following substituted:

Tribunal
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.

Composition
(1.1) The Tribunal shall be composed of such members as are appointed by the Lieutenant Governor in Council in accordance with the selection process described in subsection (1.2).

Selection process
(1.2) The selection process for the appointment of members of the Tribunal shall be a competitive process and the criteria to be applied in assessing candidates shall include the following:

1. Experience, knowledge or training with respect to human rights law and issues.

2. Aptitude for impartial adjudication.

3. Aptitude for applying the alternative adjudicative practices and procedures that may be set out in the Tribunal rules.


Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 6 (clauses 35 (1) (a) and (b) of the Act)

I move that clauses 35 (1) (a) and (b) of the Act, as set out in section 6 of the Bill, be struck out and the following substituted:

(a) within 12 months after the incident to which the application relates; or

(b) if there was a series of incidents, within 12 months after the last incident in the series.


Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 6 (clauses 36 (1) (a), (b) and (c) of the Act)

I move that clauses 36 (1) (a), (b) and (c) of the Act, as set out in section 6 of the Bill, be struck out and the following substituted:

(a) it is in the public interest to make an application; and

(b) an order under section 43 could provide an appropriate remedy.




Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 6 (new sections 36.1, 36.2 and 36.3 of the Act)

I move that section 6 of the Bill be amended by adding the following sections to Part IV of the Act:


Parties
36.1 The parties to an application under section 35 or 36 are the following:

1. In the case of an application under subsection 35 (1), the person who made the application.

2. In the case of an application under subsection 35 (4.1), the person on behalf of whom the application is made.

3. In the case of an application under section 36, the Commission.

4. Any person against whom an order is sought in the application.

5. Any other person or the Commission, if they are added as a party by the Tribunal.

Intervention by Commission
36.2 (1) The Commission may intervene in an application under section 35 on such terms as the Tribunal may determine having regard to the role and mandate of the Commission under this Act.

Intervention as a party
(2) The Commission may intervene as a party to an application under section 35 if the person or organization who made the application consents to the intervention as a party.

Disclosure of information to Commission
36.3 Despite anything in the Freedom of Information and Protection of Privacy Act, at the request of the Commission, the Tribunal shall disclose to the Commission copies of applications and responses filed with the Tribunal and may disclose to the Commission other documents in its custody or in its control.




Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 6 (sections 37, 38 and 39 of the Act)

I move that sections 37, 38 and 39 of the Act, as set out in section 6 of the Bill, be struck out and the following substituted:

Powers of Tribunal
37. The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.

Disposition of applications
37.1 The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

Interpretation of Part and rules
37.2 This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

Statutory Powers Procedure Act
38. (1) The provisions of the Statutory Powers Procedure Act apply to a proceeding before the Tribunal unless they conflict with a provision of this Act, the regulations or the Tribunal rules.

Conflict
(2) Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal rules prevail over the provisions of that Act with which they conflict.

Tribunal rules
39. (1) The Tribunal may make rules governing the practice and procedure before it.

Required practices and procedures
(2) The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:

1. An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.

2. An application may not be finally disposed of without written reasons.

Same
(3) Without limiting the generality of subsection (1), the Tribunal rules may,

(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedures Act or that are alternatives to traditional adjudicative or adversarial procedures;

(b) authorize the Tribunal to,

(i) define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties on such issues, and

(ii) determine the order in which the issues and evidence in a proceeding will be presented;

(c) authorize the Tribunal to conduct examinations in chief or cross-examinations of a witness;

(d) prescribe the stages of its processes at which preliminary, procedural or interlocutory matters will be determined;

(e) authorize the Tribunal to make or cause to be made such examinations of records and such other inquiries as it considers necessary in the circumstances;

(f) authorize the Tribunal to require a party to a proceeding or another person to,

(i) produce any document, information or thing and provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form,

(ii) provide a statement or oral or affidavit evidence, or

(iii) in the case of a party to the proceeding, adduce evidence or produce witnesses who are reasonably within the party’s control; and

(g) govern any matter prescribed by the regulations.

General or particular
(4) The rules may be of general or particular application.

Consistency
(5) The rules shall be consistent with this Part.

Not a regulation
(6) The rules made under this section are not regulations for the purposes of the Regulations Act.

Failure to comply with rules
(7) Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of discretion caused a substantial wrong which affected the final disposition of the matter.

Adverse inference
(8) The Tribunal may draw an adverse inference from the failure of a party to comply, in whole or in part, with an order of the Tribunal for the party to do anything under a rule made under clause (3) (f).




Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 6 (section 41 of the Act)

I move that section 41 of the Act, as set out in section 6 of the Bill, be struck out and the following substituted:

Dismissal in accordance with rules
41. The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.



Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

Section 6 (section 45.2 of the Act)

I move that section 45.2 of the Act, as set out in section 6 of the Bill, be struck out.



Government Motion
v. 1
Bill 107
An Act to amend the Human Rights Code
Motion to be moved in Committee
(On peut obtenir la version française de cette motion auprès du greffier.)

M

New section 6.1 (new Part IV.1 of the Act)

I move that the Bill be amended by adding the following section:

6.1 The Act is amended by adding the following Part:

PART IV.1
HUMAN RIGHTS LEGAL SUPPORT CENTRE
Centre established
45.4 (1) A corporation without share capital is established under the name Human Rights Legal Support Centre in English and Centre d’assistance juridique en matière de droits de la personne in French.

Membership
(2) The members of the Centre shall consist of its board of directors.

Not a Crown agency
(3) The Centre is not an agent of Her Majesty nor a Crown agent for the purposes of the Crown Agency Act.

Powers of natural person
(4) The Centre has the capacity and the rights, powers and privileges of a natural person, subject to the limitations set out in this Act or the regulations.

Independent from but accountable to Ontario
(5) The Centre shall be independent from, but accountable to, the Government of Ontario as set out in this Act.

Objects
45.5 The objects of the Centre are,

(a) to establish and administer a cost-effective and efficient system for providing support services, including legal services, respecting applications to the Tribunal under Part IV;

(b) to establish policies and priorities for the provision of support services based on its financial resources;

Provision of support services
45.6 (1) The Centre shall provide the following support services:

1. Advice and assistance, legal and otherwise, respecting the infringement of rights under Part I.

2. Legal services in relation to,

i. the making of applications to the Tribunal under Part IV,

ii. proceedings before the Tribunal under Part IV,

iii. applications for judicial review arising from Tribunal proceedings,

iv. stated case proceedings,

v. the enforcement of Tribunal orders.

3. Such other services as may be prescribed by regulation.

Availability of services
(2) The Centre shall ensure that the support services are available throughout the Province, using such methods of delivering the services as the Centre believes is appropriate.

Board of directors
45.7 (1) The affairs of the Centre shall be governed and managed by its board of directors.

Composition and appointment
(2) The board of directors of the Centre shall consist of no fewer than five and no more than nine members appointed by the Lieutenant Governor in Council in accordance with the regulations.

Appointment of Chair
(3) A Chair designated by Lieutenant Governor in Council will preside at meetings.

Remuneration
(4) The board of directors may be remunerated as determined by Lieutenant Governor in Council.

Duties
(5) The board of directors of the Centre shall be responsible for furthering the objects of the Centre.

Delegation
(6) The board of directors may delegate any power or duty to any committee, to any member of a committee or to any officer or employee of the Centre.

Same
(7) A delegation shall be in writing and shall be on the terms and subject to the limitations, conditions or requirements specified in it.

Board to act responsibly
(8) The board of directors shall act in a financially responsible and accountable manner in exercising its powers and performing its duties.

Standard of care
(9) Members of the board of directors shall act in good faith with a view to the objects of the Centre and shall exercise the care, diligence and skill of a reasonably prudent person.

Government funding
45.8 (1) The Centre shall submit its annual budget to the Minister for approval every year in a manner and form, and at a time, specified in the regulations.

Approved budget included in estimates
(2) If approved by the Minister, the annual budget shall be submitted to Cabinet to be reviewed for inclusion in the estimates of the Ministry.

Appropriation by Legislature
(3) The money required for the purposes of this Act shall be paid out of such money as is appropriated therefor by the Legislature.

Centre’s money not part of Consolidated Revenue Fund
45.9 The Centre’s money and investments do not form part of the Consolidated Revenue Fund and shall be used by the Centre in carrying out its objects.

Annual report
45.10 (1) The Centre shall submit an annual report to the Minister within four months after the end of its fiscal year.

(2) The fiscal year of the Centre shall be from April 1 to March 31 of the following year.

Audit
45.11 (1) The Centre must ensure that its books of financial account are audited annually in accordance with generally accepted accounting principles and a copy of the audit is given to the Minister.

(2) The Minister has the right to audit the Centre at any time that the Minister chooses.