ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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UNITED FOR A BARRIER-FREE ONTARIO

PLEASE TELL THE PINTO HUMAN RIGHTS REVIEW If YOU ENDORSE THE AODA ALLIANCE'S FINAL MARCH 1, 2012 BRIEF ON THE ENFORCEMENT OF HUMAN RIGHTS IN ONTARIO -AODA ALLIANCE CALLS FOR SUBSTANTIAL IMPROVEMENTS TO ONTARIO'S HUMAN RIGHTS ENFORCEMENT SYSTEM, TO ENSURE ACCESS TO JUSTICE FOR DISCRIMINATION VICTIMS

March 01, 2012

SUMMARY

We are delighted to make public our finalized and comprehensive brief that we have submitted to the Andrew Pinto Ontario Human Rights Review. You can download the AODA Alliance's March 1, 2012 Brief to the Andrew Pinto Human Rights Review on the Enforcement of Human Rights in Ontario, in MS Word format, by visiting here  

We urge one and all to let the Pinto Review know if you support our brief. All it takes is a one-line email to the Pinto Review! You can email the Pinto Review at:

chair@ontariohumanrightsreview.org.

If you want, you can instead send a letter to the Pinto Review by regular mail at this address:

Andrew Pinto, Chair

Ontario Human Rights Review

393 University Avenue, Suite 2000

Toronto, Ontario

M5G 1E6

If you prefer, you may fax your submission to (416) 593-4923. Your submission should include a fax covering page identifying the sender.

Last August, the McGuinty Government appointed Toronto lawyer Andrew Pinto to investigate the effectiveness of Ontario's system for enforcing human rights in Ontario. That new system was launched on June 30, 2008 by the controversial Bill 107.

To learn more about the appointment of Andrew Pinto to conduct this Human Rights Code Review, visit here:

Bill 107, which we opposed, privatized human rights enforcement in Ontario. It did not let the Human Rights Commission continue to be responsible for publicly investigating and publicly prosecuting individual discrimination cases, as it had done over the past decades. Bill 107 now requires discrimination victims to investigate and prosecute their own cases themselves at the Human Rights Tribunal. It establishes a Human Rights Legal Support Centre to represent human rights applicants (people who claim they are victims of discrimination). That Centre has neither the funding nor the express duty to represent all human rights applicants.

Even though the Pinto Review set a March 1, 2012 deadline for receiving submissions, it is important for as many people as possible to share their views with the Pinto Review, whether you do so before or after that date.

Act now! If you are part of an organization, encourage your organization to write the Pinto Review to express its views on our brief. Even if your organization does not do so, it would be great if you write the Pinto Review on your own personal behalf. Remember, you can just send one line, if you prefer. Of course, you are free to say as much as you wish.

We tried in our brief to thoroughly cover as many issues and concerns as possible. Our final brief expands on the draft brief that we posted and circulated for public comment on February 7, 2012. Our brief's discussions and recommendations are largely based on information that we requested from the three public agencies that operate Ontario's new human rights system, the Ontario Human Rights Tribunal, Human Rights Commission and Human Rights Legal Support Centre.

We appreciate the efforts those agencies made to respond to our requests for information. Unfortunately, we were not given some of the important information we requested.

For those who don't have time to go through our entire brief, at the end of our brief is an Appendix that lists in one place all the recommendations we propose. Also, if you don't have time to read the entire brief, later in this Update we set out our summary of our brief's conclusions and recommendations.

Here are four striking points that may interest you:

1. The Government has broken several important promises it made on what things would be like under the new system for enforcing human rights in Ontario after Bill 107 went into effect. It has not ensured free publicly-funded lawyers for all human rights applicants throughout the Human Rights Tribunal process. Many are unrepresented at the tribunal. The reformed human rights system has not assured to applicants a hearing on the merits within one year of filing their human rights application with the Human Rights Tribunal.

The Human Rights Commission has not become a strengthened force for promoting human rights and combating systemic discrimination. The Human Rights Commission has not effectively used the few enforcement powers it has left. The Government has not established the promised Disability Rights and Anti-Racism Secretariats at the Human Rights Commission.

2. Thousands fewer calls were made each year on average to the new Human Rights Legal Support Centre under the new system than were made to the Human Rights Commission under the old system.

3. From data provided to us, it appears that the percentage of disability cases to which the Human Rights Legal Support Centre gives legal services under Bill 107, is much lower than the percentage of disability cases brought to the Human Rights Code under the old system before Bill 107. The Human Rights Legal Support Centre's 2009-2010 Annual Report stated:

"The Centre’s lawyers provided legal assistance in respect of a Tribunal application to 995 new clients who contacted the Centre for the first time during the period covered by this Report. The grounds of discrimination in these claims can be broken down as follows: …

…•       Disability – 28%..."

In contrast, the Human Rights Commission's 2004 - 2005 Annual Report states that 55.94% of new complaints filed (1,342 complaints) involved disability. That year, 32.31 % of cases closed (1,299 cases) involved disability. The Commission's 2007-2008 Annual Report states that disability comprised 54.8 % of new cases for cases closed in that year, disability was at

27.7%.

4. It is entirely unfair that fully 885 human rights complainants with unresolved cases in the old system had Bill 107 pull the rug out from under them when the transition to the new system was finished. Bill 107 took the Human Rights Commission's mandate away on January 1, 2009. From data provided to us, we calculate that fully 885 complainants with unresolved cases at the Human Rights Commission, not yet referred to the Human Rights Tribunal, chose to let their case die rather than proceed unaided on their own to investigate and prosecute their case at the Human Rights Tribunal, without further involvement of the Human Rights Commission. The Human Rights Legal Support Centre also refused to help this group of complainants.

Learn all about the Pinto Review, about our efforts to obtain information from the three major human rights agencies, and about our earlier activities back in 2006 when Bill 107 was before the Legislature, by visiting: http://www.aodaalliance.org/reform/default.asp

MORE DETAILS

Our brief includes the following summary of its conclusions and its recommendations.

Summary of Our Concerns with the New Human Rights Enforcement System

Our concerns are summarized as follows;

1. The McGuinty Government has broken several of the important commitments it made when it enacted Bill 107 back in 2006. Those commitments are listed and documented at http://www.aodaalliance.org/strong-effective-aoda/07022008-3.asp.

The core breaches of Government commitments include:

* The Government has not ensured that all human rights applicants have a free publicly-funded lawyer throughout the processes at the Human Rights Tribunal, as the Government had promised. A very substantial number of applicants at the Tribunal are unrepresented. Thousands of people who call the Human Rights Legal Support Centre cannot even get through on the phone to raise their concerns.

 

* The Human Rights Commission has not become a strengthened force for promoting human rights and combating systemic discrimination, as the Government had promised. To the contrary, it is a mere shadow of its pre-Bill 107 self. It has not effectively used the few enforcement powers it has left.

 

* The reformed human rights system has not assured to applicants a hearing on the merits within one year of filing their application, as the Government had promised.

 

* The Government has not established the Disability Rights and Anti-Racism Secretariats at the Human Rights Commission that it promised. To the contrary, the Government is in direct contravention of its own law, because it failed to fulfil its mandatory duty to have established these organizations over three and a half years ago.

 

2. The Human Rights Legal Support Centre has in effect become Ontario's new Human Rights Commission, but without important safeguards, accountability and public oversight that applied to the Human Rights Commission under the old system.

3. The Human Rights Legal Support Centre's criteria for choosing clients raise serious concerns.

4. The Human Rights Legal Support Centre has a grossly inadequate budget for expert witnesses, contrary to its commitment to pay for experts that its clients need.

5. A lower percentage of disability cases are handled by the Human Rights Legal Support Centre under Bill 107 than the Human Rights Commission handled under the old system, according to data provided.

6. There is a pressing need to restore to discrimination victims the option of having their case publicly investigated and, where the evidence warrants, publicly prosecuted by the Human Rights Commission. This option should be available if a person doesn't want to privately investigate and prosecute their own human rights case at the Human Rights Tribunal. It is also necessary for the Commission to have in place processes to ensure that it more quickly addresses each case, and is more willing to take cases to the Tribunal.

7. The Human Rights Commission has not made effective use of its power to bring its own human rights applications to the Human Rights Tribunal, or to intervene in individual cases at the Tribunal, to combat problems like systemic discrimination. It also needs its full pre-Bill 107 powers restored to it to enable it to most effectively combat discrimination via those Commission-initiated human rights applications and interventions.

8. The Human Rights Commission needs broader power to intervene in human rights cases brought to the Human Rights Tribunal by individuals.

9. Ontario now does not have an effective system for effectively ensuring that orders of the Human Rights Tribunal and settlement agreements under the Human Rights Code are publicly monitored and enforced.

10. There need to be stronger measures to ensure that the Human Rights Tribunal is following policies on human rights that the Human Rights Commission establishes.

11. Additional measures are needed to better ensure that in human rights cases, the public interest is represented by a public human rights agency that is mandated to represent the public, and not merely to represent the private interests of individual clients, to help ensure that public interest remedies are included as often as possible in Human Rights Tribunal rulings and negotiated settlement agreements.

12. There remains serious concern about the fact that the Human Rights Tribunal has the power to make rules of procedure that violate the fair hearing guarantees in the Statutory Powers Procedure Act, a power that seems unnecessary since the Tribunal says it has not used it.

13. Problems have been reported with the accessibility of the Human Rights Tribunal's on-line application forms for people who use adaptive technology to access the internet.

14. The unelected Human Rights Tribunal has taken on itself the role of setting the standard for deciding when a case should not get a full hearing on the merits. Only the Legislature should be setting this, in legislation.

15. Added safeguards are needed to ensure that the Human Rights Tribunal renders decisions promptly, and without undue delay.

16. It is entirely unfair that fully 885 human rights complainants with unresolved cases in the old system had Bill 107 pull the rug out from under them. Bill 107 took the Human Rights Commission's mandate away on January 1, 2009. 885 complainants with unresolved cases at the Human Rights Commission, not yet referred to the Human Rights Tribunal, chose to let their case die rather than proceed unaided on their own to investigate and prosecute their case at the Human Rights Tribunal. The Human Rights Legal Support Centre also refused to help this group of complainants.

17. This Review has no mandate to consider empowering the Human Rights Tribunal to order a losing party at the Tribunal to pay the winning party's legal costs. If anything, under Bill 107, discrimination victims now face an unjustified enhanced exposure to paying their opponents' court costs.

18. Ontario needs an independent, arms-length process for merit-based screening appointments to the Human Rights Commission, Human Rights Tribunal and Human Rights Legal Support Centre.

19. There is an ongoing need for future Independent Reviews of Ontario's system for enforcing human rights in Ontario.

Summary of Our Recommendations

In this brief we make recommendations to:

1. Ensure that all human rights applicants get the free, publicly-funded lawyer to represent them throughout the Human Rights Tribunal's processes, that the McGuinty Government promised;

2. Make the Human Rights Legal Support Centre more open and accountable for its work bringing human rights cases for discrimination victims;

3. (except in the case of unresolvable ethical clash) Stop the Human Rights Legal Support Centre's policy or practice, when it agrees to represent a human rights applicant, of only agreeing at the outset to represent them partway through the Tribunal process, and leaving it to later to decide if the Centre will continue to represent the applicant through to the end of the process;

4. Correct problems with the way the Human Rights Legal Support Centre decides whether to represent a human rights applicant;

5. Ensure that the Human Rights Legal Support Centre has a proper budget to hire expert witnesses;

6. Give discrimination victims the option, instead of privately investigating and prosecuting their own human rights case, of taking their human rights case to the Human Rights Commission for a public investigation and public prosecution of it, where the evidence warrants it;

7. Require the Human Rights Commission to bring substantially more Commission-initiated cases at the Human Rights Tribunal, and to intervene more often at the Tribunal in cases that individuals present themselves;

8. Give the Human Rights Commission broader rights of participation in cases that individuals bring to the Tribunal;

9. Give the Commission a broader role in the enforcement of human rights decisions and settlements;

10. Strengthen the availability and accountability of public interest remedies in human rights cases;

11. Get the Government to at last establish at the Human Rights Commission the long overdue and promised Disability Rights and Anti-Racism Secretariats, while strengthening the weak powers that the Code now gives these offices;

12. Take steps to make the Tribunal's procedures more fair and accessible;

13. Ensure that the Human Rights Tribunal is not allowed to order a losing party to pay the winning party's legal costs at the Tribunal;

14. Limit the situations when a court can order a human rights applicant to pay court costs;

15. Create an arms-length non-partisan process for selecting people to serve in key roles at the Human Rights Tribunal, Human Rights Commission and Human Rights Legal Support Centre;

16. Ensure further independent reviews of Ontario's system for enforcing human rights every four years.