Our Campaign for Strong, Effective Implementation of the AODA

AODA ALLIANCE TELLS LEGISLATURE’S STANDING COMMITTEE THAT MOST NEW DISCRIMINATION CLAIMANTS AT THE HUMAN RIGHTS TRIBUNAL HAVE NO LAWYER, AND THAT BILL 107 JUST SHUFFLED THE HUMAN RIGHTS CASELOAD BACKLOG FROM THE HUMAN RIGHTS COMMISSION TO THE HUMAN RIGHTS TRIBUNAL

February 11, 2009

SUMMARY

The AODA Alliance’s February 9, 2009 deputation before the Ontario Legislature’s Standing Committee on Government Agencies revealed that many McGuinty Government promises on Bill 107 have been broken. We set out the 8-page text of this presentation, below. You can also click here to download an mp3 file of the audio of this presentation.

Bill 107 is the McGuinty Government’s widely-criticized new law that went into effect on June 30, 2008. It privatizes the enforcement of human rights in Ontario. Our presentation, set out below, is easy to follow, even if you have little or no background in the controversies around Bill 107. To learn about the entire Bill 107 saga, visit: http://www.aodaalliance.org/reform/default.asp

In this deputation, we used information we obtained from the Human Rights Tribunal, the Human Rights Commission, and the Human Rights Legal Support Centre. We showed, for example, that:

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ONTARIO HANSARD MONDAY FEBRUARY 9, 2009-02-10 STANDING COMMITTEE ON GOVERNMENT AGENCIES

Accessibility for Ontarians with Disabilities Act Alliance

The Chair (Mrs. Julia Munro): Our next presenter, the Accessibility for Ontarians with Disabilities Act Alliance, and David Lepofsky, the Human Rights Reform Representative.

Good afternoon, Mr. Lepofsky. As you will know from the earlier deputants, we have 30 minutes set aside. You will have the opportunity to make comments in that time and whatever remains will be divided amongst the caucuses. So please begin when you’re ready.

Mr. Orville Endicott: Good afternoon, members. My name is Orville Endicott and it falls to me to introduce to you our main presenter this afternoon, David Lepofsky, and also our other colleague Lesley MacDonald. If I may just say a word about myself first: I am not part of the leadership of the AODA Alliance but I am one of the architects of it, and when I say a few words about Mr. Lepofsky you will get a sense of the history of how the AODA Alliance came into being.

My other colleague is Lesley MacDonald, who’s the National Coordinator of Accessible Design Services for the Canadian National Institute for the Blind. She has, with the blessing of CNIB, made her skills available to the AODA Alliance for its work.

Now, David Lepofsky, who is going to be presenting to you today: he’s a graduate with honours from Osgoode Hall Law School and went on to do a Master of Laws at Harvard Law School in the early 1980s. Even before that, he was very active in a volunteer capacity and continues, to this day, to be a volunteer advocating for reforms to the law that will secure better rights for people with disabilities. He was one of the most articulate and persuasive voices that gave us in the Canadian Charter of Rights and Freedoms the guarantee of equality for persons with disabilities. He had the same impact here in this province with respect to the inclusion of protections against discrimination on the grounds of disability in the Ontario Human Rights Code.

If I were questioning him I might ask him how long is it going to take him to get Canada to ratify the United Nations Convention on the Rights of Persons with Disabilities, which was passed at the UN and signed by Canada more than two years ago.

Beginning in the mid-1990s David was the organizer and the driving force in the Ontarians with Disabilities Act Committee. That committee achieved, through the Conservative government in the 1990s, the Ontarians with Disabilities Act, 2001. Then, of course, he went on to ensure that we have the Accessibility for Ontarians with Disabilities Act, the AODA, passed in 2005.

Whenever I ride on the Toronto Transit Commission subways or buses, I can’t help thinking of David because I take advantage, just like people with visual impairments do, of the very clear and timely announcement of every stop. It’s a very dulcet and clear voice that I hear, but it’s really David Lepofsky’s voice, which you will hear in just a minute. I left out that we would not be hearing that voice had David not successfully gone to the Human Rights Tribunal of Ontario, first to ensure that the TTC would announce subway stops and then a little while later that they would announce all bus and streetcar stops.

David received the Order of Canada in 1995, the Order of Ontario in 2007 and too many honours for me to list. He is a prolific author, both of published and unpublished documents, one of which you have before you today. He is the human rights reform representative for the AODA Alliance. David.

Mr. David Lepofsky: Thank you, Orville. It’s an honour to be able to appear before you. You have a brief before you that we’ve submitted. I know this hearing is being televised. If anybody else wants to get a copy of our brief, we’d be delighted to e-mail it to them. They need simply to send a request to aodafeedback@rogers.com.

We’re honoured to be here particularly because we wanted to make these points about two and a half years ago at standing committee hearings on Bill 107, which we were promised, which the government scheduled, which the government advertised and which the government, over the commendable opposition of the opposition, cancelled through an unprecedented closure motion to muzzle public debate on human rights reform. I regret that what we are here to do today is to tell you what we were trying to warn you of three years ago, and which unfortunately appears to be coming true, as a result of the government’s changes to the Human Rights Tribunal and the related agencies it works with.

The coalition which I have the privilege of serving, is made up of individuals and organizations, like Orville and Lesley, who, some 30 years ago came to this building to fight to get discrimination because of disability into the Human Rights Code. We were delighted to win two rights back in 1982. First, was a legal ban on discrimination in workplace and access to goods and services, housing and the like, based on disability. But that wasn’t the only right we won. The second right we won was a legal guarantee that our human rights would be publicly investigated and publicly prosecuted by a public law enforcement agency called the Human Rights Tribunal. As long as the complaint was within their jurisdiction, not trivial and incapable of being settled, their job was to investigate it, and where appropriate, to litigate it. Those were two important rights that we won.

In the 1990s, we united as a disability community to fight for and win the Accessibility for Ontarians with Disabilities Act, a new law to build on, not replace, the Human Rights Code.

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We’re here today to draw your attention to the promises that the government made in 2006, when it decided to pass Bill 107 to privatize the enforcement of human rights, and to demonstrate through the government’s own data by those responsible for implementing this law that those promises have sadly not been kept.

In 2006, the government, over the commendable opposition of both opposition parties, opted to repeal the right that we won to have our human rights claims publicly investigated and, where warranted, publicly prosecuted by the Human Rights Commission. The government decided to privatize it to put the job of investigating and litigating our human rights on the backs of discrimination victims themselves, a population that the government always recognized is vulnerable, disadvantaged, often impoverished and least able to take on that privatized duty on their own.

What did the government promise it would do? By privatizing the human rights enforcement process, by telling us that we have to take our cases right to the Human Rights Tribunal, investigate them ourselves and try to get the support of the Human Rights Legal Support Centre if they choose to represent a claimant, the government said that they would clear the backlog that we all agreed was too long and too big at the Human Rights Commission. The government said that this legislation would create new access to the Human Rights Tribunal—that any discrimination claimant would have the right to a hearing. Indeed, we were told about a hearing within a year of filing a complaint. We were told that the hearings would become more accessible and more fair, and we were told that as a vanguard to support this, the government was not abolishing the role of the Human Rights Commission. We were told it was going to be strengthened and it would be in the vanguard of litigating human rights cases on a system or public interest basis. That’s what we were told by the government, and if you look at appendix 1 to our brief, we provide quotations from the record to prove all of that.

So what’s happened? This is from data that we requested from the Human Rights Commission, the Human Rights Legal Support Centre and the Human Rights Tribunal. Appendix 2 to our brief sets out the information requests. To the extent that we weren’t able to get everything we wanted because of time limitations or they don’t collect the data, we urge you to ask them for this same data that we weren’t able to get.

What did we learn? First, what we have learned is that a very substantial proportion of the people who used to come forward to approach the human rights system appear not to come forward and approached the human rights system at all. According to the annual reports of the Human Rights Commission before its main functions were eviscerated, it would receive in the mid-2000s in the range of 50,000 to 65,000 calls per year. That’s first contact. If somebody doesn’t make first contact, they’re not going to go any further.

What have we learned under the new system? We understand that the intake role, the first-contact role, has been transferred to the Human Rights Legal Support Centre. The data that they’ve provided to us is that in their first six months, they’ve gotten approximately 10,000 calls. It sounds like a lot of calls, but it’s actually less than half that would have in the same time period under the old system. Unless somebody can show that those people are otherwise engaged in the system, that suggests to us that a substantial proportion, more than half of the people who might have come forward, may not be coming forward at all even to make first contact. That alone ought to cause serious concern for everybody.

But that’s not all. What’s happened to the people who have come forward? We were told that the government would clear the backlog. The data that we’ve got on the caseload before the Human Rights Tribunal now suggests that the backlog is as big as ever. The numbers we’ve been given—you heard some this morning and they’re in our brief—are that the new applications still not settled number about 1,000. The number of cases that jumped from the old system between June and December still not settled—some of them have been; I’m talking about the unsettled ones—is another 800. There’s 1,800. We were also told that there are another 700-and-some that the Human Rights Commission has before the Human Rights Tribunal under the old system, but a number of them are class action, so we boiled that down to 400 to be cautious in our numbers. That’s 2,200 cases. If you file a complaint tomorrow, you join a line-up behind 2,200 other cases. That backlog is not lower than it was if you take into account the following: There are, from what the Human Rights Commission has told us, another 2,000 cases that were at the commission in December of last year not resolved and the commission has had all of its residual powers to deal with them taken away. So they’ve got the right to jump into the new system. Those are cases, if they do jump in, that mean that you would be in line, if you come forward with a new case, behind 4,200 cases.

If you look at the statistics of the Human Rights Commission backlog that was the subject of a massive government critique, and properly so, when Bill 107 was brought forward, and the number of cases that were at the tribunal and you combine them together, you won’t see that there is progress. If anything, we’ve got a matter of concern.

Can they clear the backlog? You’ll say this is early. They’ve got 22 full-time adjudicators at the tribunal and 22 part-timers, and I wasn’t able to get figures on how many full-time equivalents they are. If those 22 full-timers work every day, every night, don’t go to the bathroom, don’t eat and don’t sleep, I don’t believe that they can deliver a hearing to every complainant within the year that we were told to expect under this new system.

The government might say, “Oh, but it’s a transition period.” Not a fair answer. It’s not a fair answer because we warned the government and wanted to warn the Legislature, but of course, we were muzzled by a closure motion, that their transition provision was going to do exactly what’s happening. Moreover, the government gave itself 18 months after it passed Bill 107 to try to fix this problem and proudly announced last April that they were giving unprecedented money to fix it. So if they gave themselves the time they decided to give, gave themselves the money they thought was unprecedented and still couldn’t fix it, they can’t turn around and say, “Ah, but it’s a transition period.” A new claimant is going to get into a longer backlog than ever. This is a serious, serious problem.

If that alone was the problem that would be bad enough. It gets worse. The government promised us hearings that would be more accessible. This morning you heard Mr. Gottheil, the chair of the tribunal, talk about the new rules they’ve adopted. We reviewed those new rules, offered detailed proposals about them, expressed serious concern and, I regret, were mostly disregarded or our views were rejected when the tribunal set up its new rules.

Given the rules that the tribunal has adopted, a discrimination claimant would be foolhardy to try taking on the Human Rights Tribunal process without a lawyer. The rules number 28 pages, I believe. They have fully 24 forms, any number of which you may have to fill out. There are detailed procedures, they are complex and they serve as a trap for the unrepresented. I’m not saying they were meant as a trap, but anyone who goes before that tribunal unrepresented goes forward at their own peril. They need to have legal representation, we believe. We warned the tribunal and all the plain language in the world in their rules or their forms don’t remove that need.

Given that, what is the situation, what is the reality before the tribunal? The government promised us that there would be free, independent legal representation for all discrimination claimants. The quotations documenting that are in appendix 1 to our brief.

Have they delivered it? Again, don’t ask us, ask the tribunal. The data they gave us was that only 40% of new claimants came to them with legal counsel. The figure I believe they gave this morning may have been as low as 20%, but let’s assume it’s 40%. Let’s give them the benefit of the doubt. That means 60% of new claimants are unrepresented. That’s a far cry from everyone being represented when taking on rules for which one needs legal training to navigate and avoid risk in the presentation of your case.

Now remember, under the old system this wasn’t as much of an issue because the case didn’t go to the tribunal unless the Human Rights Commission investigated it, tried to settle it and assigned counsel who was supposed to have carriage of it before the tribunal. Under the new system, you’re on your own and that is a serious problem under the new system.

I just talked about how many people were unrepresented among the claimants who bring new claims. What about the 900 or so people who were in the old system last June and decided to jump to the new system this fall? According to the website of the Human Rights Legal Support Centre I quoted in our brief, they opted as a matter of policy not to represent any of them. That’s none of them. That’s their policy. I don’t know if they departed from it, but all we know is, that’s their policy. That’s a far cry from full legal representation for all claimants.

Now, then. We have a very serious, troubling system. The question came up this morning, and we commend those members who raised it: What about the respondent? Is the respondent, the party accused of discrimination—are they represented?

Let me talk personally for a moment. As Mr. Endicott indicated, I brought two cases against the TTC, one to get them to announce subways stops and one to get them to announce all bus stops so that we blind people—and, by the way, you sighted people—can know where the heck we are; an outrageous human rights claim, of course. One would have thought it so obvious, they would have done it, but they didn’t. Instead, under the old system, the TTC went and hired lawyers. Between the two cases that I fought against them—and freedom of information requests that I brought and documented—the Toronto Transit spent a grand total, between the two cases, of $450,000 taxpayer dollars on lawyers to oppose calling out all bus and subway stops reliably for the benefit of blind passengers.

I’m not saying that every respondent is going to spend that kind of money, but many of the biggest ones can, and it is not a fair fight for an unrepresented, disadvantaged discrimination claimant, who may have lost their job for trying to get access to a basic government service, to be up against the muscle that can be marshalled against them when many respondents are legally represented and the complainant may not be.

You asked the tribunal this morning: In how many cases is the complainant unrepresented but the respondent is? They told you they don’t have that data. We asked that same question. With respect, they should have that data. The issue of proper legal representation was a central concern during the much-focused-upon and -covered public debates over Bill 107. Even the proponents of Bill 107—those who were on the other side of the debate from our coalition and others who support us—even many of them from the community groups agreed how important it is not to throw an unrepresented complainant in against a represented respondent.

Time is short. Let me jump to some other considerations. Again, if all of that was the only thing that’s gone wrong, it would be bad enough, but, I regret, it gets worse.

When the government brought forward Bill 107, the government and its proponents said that one of the big problems with the old system was that there was a gatekeeper at the gate of the Human Rights Tribunal. It was the Human Rights Commission that would decide which cases went forward, and they repeatedly talked about how few cases actually go to a hearing. They said the new system would have no gatekeeper.

We believe the data before you will show that they’ve just changed gatekeepers. There’s a new gatekeeper; it’s called the Human Rights Legal Support Centre. They get 10,000 calls in six months. They do, I am sure, the very best they can; they are dedicated and hard-working people. They interview, I believe, a proportion of the people who call them; they have advised a smaller proportion; and they have ultimately drafted complaints or applications for, we’ve been told, about 200 or so applicants and another couple of hundred more are coming—a very small fraction of the 10,000. That is de facto a gatekeeper role.

Again, if that was bad enough, we’d have a lot to be worried about, but it gets worse. We were told that the Human Rights Tribunal would adopt proceedings that would be fair. The Human Rights Tribunal, over our objection and those of many other community groups, opted to use the power that the government gave it to override the requirements of fairness in the Statutory Powers Procedure Act. Mr. Gottheil this morning made it sound like we’re trying to come up with old technical criminal law proceedings at the tribunal—far from the truth. With respect, it’s just not our position. We want some basic fairness.

We quote in our brief one ruling that should give members of this committee concern. I don’t want to talk about the merits of the case; I don’t know anything about the merits of the case. But in a case called Persaud, one tribunal adjudicator, a Mr. Mark Hart, decided, before a hearing began, to dictate to the parties how long they could examine in chief or cross-examine each of the witnesses listed—an hour for this one in chief, an hour in cross, a half-hour here in chief, a half-hour in cross—and he said, “If you’ve used up your time, or if you’re not happy with this, I’ll consider an extension, but you’ve got to first identify, or prove to me, that you used your time effectively.”

With respect—and I’m not commenting on the merits of the particular case there—this is exactly the kind of potentially unfair proceeding about which we are very concerned. It is impossible in advance to have an adjudicator who does not know the witness, hasn’t interviewed the witness, doesn’t know all of the ins and outs of the case, to know better than counsel calling the witness how long they need to examine him or cross-examine him. The tribunal gave the same time for chief and for cross. It’s not unusual in cases for a witness to be very short in chief, very long in cross, or the other way around.

Finally, the tribunal, deciding that they would give people the opportunity to ask for an extension after or near the end of their time—after they’ve already used it up—puts counsel in a hopeless position. You have to know how much time you have before, not after you’ve used it.

I know my time’s just about up, but I just want to talk about my last area of concern. A hugely important issue—by the way, I can’t say how prevalent that practice is; I’m just simply advising that that is a decision which is an indication of an area of concern which merits, I believe, more attention by this committee into the powers the tribunal is using.

Final area of concern: “public-interest” remedies. It’s not enough when somebody is discriminated against, if they prove their case, to give them some money and say, “Go away.” If that happens, the claimant may be happy to get some money and go away, but that doesn’t prevent it from ever happening again. That’s why we need public-interest remedies. The party that was in the lead of seeking public-interest remedies under the old system was the Human Rights Commission. Of course, they’re ahead of the game for most of these. We are very concerned. We wrote the tribunal and asked how many cases they’re giving public-interest remedies in and settlements and we haven’t gotten any answers on that yet. We hope they’re able to pull that information together.

But, of course, there are six reasons that I’m going to summarize, then I’ll conclude, why you should be very concerned about this under Bill 107.

First, the government said that under Bill 107, the Human Rights Commission, even though it was out of the business of dealing with individual cases, would be in the vanguard of bringing public-interest cases. Guess how many they’ve brought under Bill 107? Zero. That’s their number, not mine. Under the old system, they’ve got one still outstanding. They’ve done one inquiry so far, but they’ve brought zero commission-initiated complaints so far. That’s one of my six.

Number two, the government said that the Human Rights Commission could intervene in individual cases. This was an avenue, for example, to bring forward public-interest concerns. How many of the 1,200 new applications have they intervened in under the new system? According to the Human Rights Commission: one. Well, that’s one more than zero.

The government told us that the commission would retain investigative powers, but look at schedules—or appendices—four and five appended to my brief. They’ve laid off all their investigators. How can they investigate without investigators?

Fourth, the government said that the Human Rights Commission would be empowered to do this through two new secretariats that Bill 107 requires them to establish, the anti-racism secretariat and the disability rights secretariat. You go down to the Human Rights Commission; you can go all through the building and look for them, but they don’t exist, contrary to the requirements of the Human Rights Code.

Finally—I only have time for five—the government said that we could be confident that disability would be a priority amongst the commission’s work. You’ll see that, while they have done some important work in disability, and I’m sure they’ll do some more, their priorities set out in their strategic plan, which we quote, sets mental health as one of their priorities but no other disability issues—a bunch of others. We’re very concerned that we’re going to fall, potentially, to the lower end of the priority spectrum.

Let me conclude by thanking you again for giving us the opportunity. I wish we would’ve been able to do this three years ago. We welcome the chance to come back to talk more about this as you get more data. We encourage you to have full hearings and invite, not just those of us who are here today, but anyone else of the hundreds of groups who were frozen out. Finally, we encourage you, on all sides of the House, to unite to have the government keep the promises that it said it would under Bill 107. Thank you very much.

The Chair (Mrs. Julia Munro): Well, thank you very much. You did mention that you had six and that you went to five. We are certainly here to hear number six if you want to add that.

Mr. David Lepofsky: Okay. That’s fine. I just wanted to make sure I didn’t go over my time.

The Chair (Mrs. Julia Munro): No, no. Go ahead.

Mr. David Lepofsky: All right. The sixth concern is this—this is really fundamental to us. Remember I said that the disability act that we fought for and proudly won in 2005—the underpinning of it was the Human Rights Code. We’re very proud that the government brought it in and we’re very proud that both opposition parties united to support it. That was an incredible day back in 2005, when it was passed.

Let me talk about what happened leading up to that bill. One of the things that Premier McGuinty promised our coalition in the 2003 election was that that disability act would have effective enforcement. When Premier McGuinty got elected, his government asked us what effective enforcement we wanted. We said we would like a new enforcement agency to enforce the accessibility requirements independent of the government. We had a long discussion with the government and the government ultimately elected not to give us that new enforcement agency. I was the lead negotiator for our side of the table. They were very good negotiations and in good faith we were told, I believe, that the government believed that we would have enough to be able to continue to use the investigative and prosecutorial functions of the Ontario Human Rights Commission. We didn’t get everything we wanted in that bill, but we shook hands and celebrated its passage as an overall good deal.

A year later, the government turned around and ripped out the Human Rights Commission’s investigative teeth and its enforcement teeth. In other words, the very enforcement agency that we were supposed to be able to fall back on was essentially eviscerated. That, we say, is not fair. It undermines the Human Rights Code, but it also undermines the disability act for which all three parties so properly and wisely united to pass. That is a breach of faith; it is a breach of commitment; it is fundamentally unfair. It is also something that we wanted to come and be able to say to a committee of the Legislature three years ago, only a closure motion precluded us from being able to say it in here. We had to do it in press conferences or letters to the editor.

The Chair (Mrs. Julia Munro): Well, thank you very, very much. We appreciate your being here today. As you might have realized, we have exhausted the time that is available, but I’m very pleased that we were able to offer you the opportunity to make your final comment and thank you very much for being with us today.

Mr. David Lepofsky: Thank you very much.