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ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

MCGUINTY GOVERNMENTíS FALL 2007 TORONTO PUBLIC MEETING ON HUMAN RIGHTS REFORM REVEALS SERIOUS PROBLEMS WITH BILL 107íS IMPLEMENTATION

February 6, 2008

SUMMARY

In November 2007, the McGuinty Government held a series of public forums around Ontario concerning Bill 107ís implementation. Bill 107 is the widely-criticized law which will privatize human rights enforcement in Ontario. It will take away their right to a public investigation of discrimination complaints, and to a public prosecution of them where thereís enough evidence. To learn more about the background to Bill 107 and the controversy around it, visit: http://www.aodaalliance.org/reform/default.asp

Information revealed at the November 16, 2007 Toronto public forum by the three public officials charged with leading Bill 107ís implementation demonstrated that there are serious and then-unresolved practical problems with the changes to human rights enforcement that are slated to take effect on June 30, 2008. There was no assurance at the Toronto public meeting that these serious problems will be rectified before the bill goes into operation.

Speaking at this forum were three McGuinty Government appointees: Michael Gottheil (chair of the Ontario Human Rights Tribunal), Barbara Hall (Chief Commissioner of the Ontario Human Rights Commission) and Helena Birt (Transitional Director of the new Human Rights Legal Support Centre).

We had wanted these forums to be a place for public consultations on Bill 107ís implementation. Instead, this Toronto public meeting was largely an information session where these public officials could announce what the Government has decided to do. This was followed by a limited question and answer session where the public could try to get past the rhetoric and platitudes, and find out some details.

The presentations didnít answer the vast majority of the important questions that we pre-circulated. On these questions answers are very much needed. You can find these at: http://www.aodaalliance.org/strong-effective-aoda/10242007.asp

There was no speaker for the McGuinty Government itself. Such a speaker had been needed to answer key questions that only the Government could answer e.g. on how and at what levels the new human rights enforcement system is going to be funded.

Hereís some of what we learned:

* As of mid-November 2007, the McGuinty Government had still not finalized the specific operational budgets for the Ontario Human Rights Tribunal (which is expecting to annually receive some 3,000 human rights complaints) or the Ontario Human Rights Commission or the Human Rights Legal Support Centre. This is almost two years after the McGuinty Government announced its plans for Bill 107, 19 months after the bill was first introduced into the Legislature, almost a year since it was passed into law, half a year since the Ontario budget had an announcement about this subject, and a mere 7 months before it goes into operation. Visit:
http://www.aodaalliance.org/reform/update-032207b.asp

* The Human Rights Legal Support Centre hopes to open its doors on June 30, 2007. It plans to take on the task of providing legal advice and representation to discrimination victims at the Human Rights Tribunal. It is also going to take on the huge role of annually fielding some 65,000 public inquiries that precede people filing human rights complaints Ė a role now handled by the Human Rights Commission.

* The Human Rights Legal Support Centre will not be providing legal representation to every discrimination victim that has a case at the Human Rights Tribunal. This is a categorical breach of the McGuinty Governmentís commitments during the Bill 107 debate, which we document at:
http://www.aodaalliance.org/reform/update-081806.asp

In her remarks at this meeting, Helena Birt intimated that the expectation of free independent legal counsel for all complainants came from Bill 107ís critics. In fact, this came from the McGuinty Government as it argued in support of this controversial bill.

The Legal Support Centre still doesnít know how many lawyers it will have on staff. It is going to be based in Toronto. It hadnít yet decided how it is going to serve discrimination victims outside Toronto Ė i.e. the majority of Ontario.

It has not explained how it will discharge its new gate-keeping role of deciding which discrimination victims it will serve, and which ones it will turn away at the door. Those who advocated for Bill 107 criticized the Human Rights Commissionís role as a gate-keeper deciding whose cases would go forward to a hearing at the Human Rights Tribunal. In this new system, contrary to the McGuinty Governmentís claims, the gate-keeping function hasnít been eliminated. It is simply shifted to a new body with far less funding and less public accountability than the hitherto-under-funded Human Rights Commission.

The Human Rights centre will decide what amount of service it will give a discrimination victim. They may give a particular individual full legal representation, or they may only give advice and tips. The ďlegal representationĒ that a discrimination complaint may receive wonít necessarily be given by a lawyer.

* It cannot be assumed that just because the Human Rights Tribunal orders a respondent to take action to stop discriminating, those orders will always be properly obeyed. Barbara Hall confirmed that a serious problem with Bill 107 that hasnít been addressed is the critical question of who will enforce remedies that the Human Rights Tribunal orders. Under the current system, it is the Human Rights Commission that enforces these remedies. Bill 107 took that role away from the Human Rights Commission. It doesnít re-assign it to anyone.

At this public meeting, Barbara Hall said sheís raised this problem with the Government. The Human Rights Legal Support Centreís director Helena Birt said her Centre may be able to do this. However, as noted above, she earlier confirmed that her Centre wonít be able to provide full legal representation to all discrimination victims. This is further proof that Bill 107 privatizes human rights enforcement.

* During the public debate over Bill 107, the McGuinty Government made major commitments that under it, the Human Rights Commission would be ďfreed upĒ to aggressively attack systemic discriminatory barriers facing discrimination victims, by bringing its own public interest cases (i.e. without one being filed by an individual discrimination victim). The AODA Alliance has publicly called on the Human Rights Commission to devote the bulk of its resources to bringing such cases, and to establish and open, accessible and fair process for discrimination victims to ask the Human Rights Commission to take such action. Visit:
http://www.aodaalliance.org/reform/update-031207.asp

To date, as far as we know, the Human Rights Commission hasnít announced any specifics of how it is going to use this power, or on how the public can have input into the cases it will bring. At the Toronto public meeting, Chief Commissioner Barbara Hall only said that she expected to bring more of these Commission-initiated cases than had been the case in the past. Yet she at another point conceded that the Commission to date has rarely used this power. A tepid commitment to use this power more than rarely falls far short of what the McGuinty Government pledged when it listed its advantages of Bill 107.

Moreover, Ms. Hall made it clear that the Human Rights Commission still hasnít worked out in any specific detail how it will decide which cases to launch on its own, and in which individual cases it will intervene to support the individual discrimination victim. She agreed that the Commission has to establish a process for community groups to identify cases in which the Commission should launch its own complaints or intervene in existing cases.

* The Human Rights Tribunal made it clear that it fully intends to wield the new power that Bill 107 gives it to dictate to the parties at a hearing which witnesses they may call, even when a partyís witnesses are clearly relevant. A party to a hearing, whether the discrimination victim or the party accused of discrimination, can expect that they may find the Tribunal refusing to let them call a relevant witness if the Tribunal doesnít think their evidence, though relevant, is needed (even if the party calling the witness thinks that witnessís evidence is very important).

* Given the nature of its work, the human rights system needs to be able to communicate with discrimination victims in a wide range of languages, not just French or English. It was made clear at the Toronto forum that there had not yet been established any plans for ensuring that discrimination victims will be able to effectively communicate with the Human Rights Legal Support Centre, the Human Rights Tribunal, and the Human Rights Commission, in their own language. There was also no indication that thereís any budget being allocated for this. At most it was indicated that this need has been identified to Government. Michael Gottheil said he doesnít know if the Tribunal will be able to make its forms available in various languages other than French and English, and have staff that can work in those other languages.

* A substantial part of what was presented at this session sounded very similar to information that had been presented weeks or months earlier. This suggested that there was still a substantial amount to be decided on and planned before Bill 107 is ready to go into operation. Despite this, on the even of the last election, the McGuinty Government rushed to prematurely proclaim that Bill 107 will go into operation on June 30, 2008. It was clear at the public meeting that the McGuinty Government would be well advised to undo that decision, and to take the time needed to properly prepare for it.

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