Our Campaign for Strong, Effective Implementation of the AODA

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

HUMAN RIGHTS TRIBUNAL CONSULTS ON IMPORTANT NEW RULES FOR ENFORCING HUMAN RIGHTS Ė BUT WHO EVEN KNOWS THIS CONSULTATION IS GOING ON?

March 2, 2008

SUMMARY

We heard through the grapevine that the Ontario Human Rights tribunal is now holding a consultation on its all-important new rules of procedure. These rules will govern all human rights complaints in Ontario after June 30, 2008. The public has until March 14, 2008 to send its input to the Tribunal. See the Tribunalís announcement below.

We are deeply concerned that the Tribunal hasnít given fair and effective notice to the public about this important consultation. To the contrary, it appears in practice to largely be an ďinvitation-onlyĒ consultation. This is yet another example of how the broad public has been unfairly shut out of the process by which the Ontario Government is dramatically changing the way that human rights are enforced in this province.

Under the widely-criticized Bill 107, the Human Rights Tribunal will take on a much more central role in the handling and enforcement of human rights in Ontario. This consultation is possibly the first important test of how open, accessible and accountable the Tribunal will be in discharging its sweeping new duties and powers. It will be important to closely monitor the Tribunal to see how fair and open it is to receiving and using input.

We urge the Tribunal to properly publicize this consultation, to extend the deadline for giving input, and to provide barrier-free ways for input to be given on the Tribunalís important new rules of procedure.

Please circulate this announcement widely.

MORE DETAILS

It is our understanding that the Human Rights Tribunal has not issued any press release, held any news conference, or published any advertisements in the mass media, to announce that it is holding a consultation on its permanent rules of procedure. All it apparently has done to let anyone know about the launch of this consultation, is to post a notification of it on the Tribunalís website, and to send an email to a list of people and organizations (that the Tribunal says it uses and numbers in the hundreds).

This very limited way for the Tribunal to notify the public about its important consultation is grossly and obviously inadequate. Section 39(7) of Bill 107 insists that the Tribunal must hold a ďpublic consultationĒ before enacting any new rules of procedure. That section states:

(7) The Tribunal shall hold public consultations before making a rule under this section.

Ontarians number at least 11 million. Ontarians with disabilities alone number over 1.5 million. Other potential discrimination victims, including women, racialized communities and others, number in the millions. Employers, landlords and providers of goods and services (who must obey the Human Rights Code) are similarly numerous. All have an interest in the enforcement of human rights in Ontario. If the Tribunal only emailed its announcement to several hundred individuals and/or organizations, that is a minuscule proportion of the public who are entitled to have a meaningful chance for input.

The AODA Alliance received no email notification of this consultation from the Tribunal. The notice, set out below, was passed on to us by others. Our now circulating this announcement, and encouraging all recipients of it to circulate it to others, may well do as much as, if not more, to publicize the Tribunalís consultation than has the Tribunal itself.

The AODA Alliance has been a major player in the public debates over Bill 107. When we raised this rather stunning omission with the Tribunal, the Tribunal advised us that they emailed us a notice about the consultation, but inadvertently used an earlier email address that we havenít used for months. This calls into question how reliable and up-to-date is the Tribunalís email list. We donít know what other email addresses, if any, on the Tribunalís list are out-of-date. More importantly, the Tribunal should not be in a position to in effect hand-pick a small proportion of the Ontario public who will get notification of this important consultation.

The fact that the Tribunal also posted a notice about this consultation on its website is no answer to this concern. Many if not most of the public, including those with a strong interest in human rights issues, donít make a habit of regularly checking the Human Rights Tribunalís website, just in case the Tribunal might choose to one day quietly announce a consultation on its rules. You can see the Tribunalís web posting on this, including its proposed new rules, at:
http://www.hrto.ca/english/about/consultation.asp

Making all this worse, the Tribunalís approach limits its notification to people who have access to computers and to the internet. This erects a serious barrier to access for those who donít have computer and internet access due to poverty, to illiteracy or to certain disabilities, and to those whose language isnít one that the Tribunalís website uses. This flies in the face of the requirements and spirit of the Human Rights Code itself, a law which the Tribunal should be the flagship in honouring. It also flies in the face of the Tribunalís commitments that its new procedures aim at core principles including accessibility.

Why is it so important for the Human Rights Tribunal to conduct a full, open, accessible public consultation on its permanent rules of procedure? There are several reasons.

First, the McGuinty Governmentís widely-criticized Bill 107 goes into full effect on June 30, 2008. After that date, any victim of discrimination who wants to bring a complaint against the person or organization that discriminated against them must file their discrimination complaint with the Human Rights Tribunal, not the Human Rights Commission (as was the case in the past). Under Bill 107, the discrimination victim must investigate and prosecute their own individual case, without the benefit of the Human Rights Commission as the public investigator and public prosecutor.

The McGuinty Government promised that Bill 107 will speed up and improve discrimination victimsí access to effective human rights enforcement. The Tribunalís new rules will dictate the specific procedure that a discrimination victim must follow from beginning to end. This is the very heart of the Bill 107 reform to human rights enforcement. It is not just some minor detail, or some legal technicality that can be left to lawyers to worry about and sort out. The devil will be in these rulesí details. If the Tribunalís rules are unfair, harsh or burdensome, they will impede access to justice for discrimination victims.

Second, for the first time, Bill 107 gives the Tribunal the huge and potentially draconian power to make rules that override a discrimination victimís or respondentís right to present whatever relevant evidence he or she feels is needed to prove whether the complainant was the victim of discrimination. Before Bill 107, an important law called the Statutory Powers Procedure Act (SPPA) guaranteed to all parties to a human rights case, including the discrimination victim, a series of fundamental and time-honoured procedural rights at the Human Rights Tribunal. Among these was the fundamental right of any party to a case to decide how to prove their case. This includes the right to call any relevant evidence, so long as it wasnít unduly repetitious.

Bill 107 gives the unelected Human Rights Tribunal the extraordinary power to make rules that violate the SPPA. This includes the power to make rules that take away the important right to choose what relevant evidence to present at a Tribunal hearing. The Tribunal can make these rules behind closed doors. During the 2006 public debates over Bill 107, many, including the AODA Alliance, strenuously objected to the Legislature giving this sweeping, excessive power to the unelected and unaccountable Human Rights Tribunal. To see all our concerns regarding Bill 107, visit:
http://www.aodaalliance.org/reform/aoda-final-brief.asp

Late in 2006, in the face of this criticism, the McGuinty Government introduced an amendment to Bill 107. That amendment created s. 39(7) set out above. It requires the Tribunal to hold a public consultation before it can make any new rules of procedure. That amendment wasnít a full answer to our concerns. However, it at least gave us some improved chance to speak out about possible cutbacks on the important rights that the SPPA had guaranteed to us for decades.

The Tribunalís actions to date regarding this consultation clearly donít fulfill Bill 107ís mandatory requirement that the Tribunal must hold a public consultation before making new rules. They reflect an impoverished approach to the right of the public, including discrimination victims, to have meaningful input into these important procedural rules.

Third, the need for a real, open, and accessible public consultation on the Tribunalís permanent rules of procedure is amplified by the fact that so many, including many discrimination victims, were denied meaningful input into Bill 107 in 2006 when it was debated in the Legislature. The McGuinty government was widely criticized for not holding a proper public consultation before announcing its plans in February 2006 to reform human rights enforcement. Despite that criticism, the McGuinty Government thereafter refused to hold a public consultation before introducing Bill 107 into the Legislature in April 2006. The McGuinty Government committed instead that all would get a chance to present their concerns about Bill 107 to a committee of the Legislature later that year when the bill would be debated.

As 2006 progressed, criticism of Bill 107 mounted. The list of groups wanting to present their concerns about Bill 107 to the Legislature grew. In the face of rising community-based opposition to Bill 107, the McGuinty Government took the heavy-handed step on November 21, 2006 of using its majority in the Legislature to pass a ďclosure motion.Ē That motion shut down the continued public hearings on Bill 107. It cancelled numerous upcoming hearings before the Legislatureís Standing Committee that the Government had promised, advertised and scheduled. Many community groups had been working for months to prepare their presentations. The McGuinty Governmentís closure motion was widely condemned by community and media voices, including some of Bill 107ís proponents.

One of the many groups muzzled by that closure motion was the AODA Alliance. Among concerns that community groups like the AODA Alliance wanted to raise at the Legislature was with Bill 107ís giving the unelected Human Rights Tribunal the power to make rules that violate the rights which the SPPA guarantees. Those events left an indelible stain on Bill 107. For more background on those events in 2006, visit:
http://www.aodaalliance.org/reform/default.asp

After those events, the Government, including the Tribunal, should have gone out of their way to ensure meaningful, open and accessible opportunities for public input on Bill 107ís implementation. The Tribunalís conduct here, falls far short on that score. For example, we donít know if the tribunal sent any notification of this current consultation to the long list of individuals and organizations whose presentations on Bill 107 to the Legislatureís Standing Committee were cancelled by the McGuinty Governmentís closure motion.

Fourth, the Tribunal was earlier alerted to some concerns with its limited approach to consultations on its rules. Last fall, the Tribunal held a similarly limited consultation on its proposal to pass interim rules on how human rights cases would be handled for the period leading up to Bill 107ís June 30, 2008 full start-up. AODA alliance member David Lepofsky submitted a personal brief on those interim rules to the Tribunal. The AODA alliance didnít then have time to fully consider a position on those interim rules. Lepofskyís brief raised with the Tribunal some serious concerns about its limited approach to consultations. You can read his brief at:
http://www.aodaalliance.org/strong-effective-aoda/10292007.asp

Fifth, there is no good reason for the Tribunal not to hold an open, accessible and meaningful consultation on its rules of procedure. In sharp contrast to what the Tribunal is doing here, a few years ago the McGuinty Government held a good, open and accessible consultation before introducing its proposed Accessibility for Ontarians with Disabilities Act into the Legislature in 2005. In 1998, the McGuinty Liberals slammed the Harris Government for holding a far less open consultation on an earlier proposal for a Disabilities Act. The Tribunalís consultation here seems much closer to, if not even less inclusive than, the Harris Governmentís widely-criticized 1998 Disabilities Act consultation, which the McGuinty Liberals had slammed while in opposition. It is a far cry from the McGuinty Governmentís open, accessible 2004 Disabilities Act consultation. You can read more about those earlier consultations at: http://www.odacommittee.net

It is very important that the Tribunal take these steps to immediately correct this serious difficulty:

  1. The Human Rights tribunal should immediately take proper steps to effectively announce its rules consultation to the entire Ontario public. For example, it should issue a news release, hold a news conference and place advertisements in the media. This should include particular steps to reach sectors of the Ontario public which may have an amplified interest in human rights. It should make sure that this publicity includes barrier-free measures, e.g. advertisements in publications in languages other than English and French, and via media which reach persons who cannot read print due to a disability or due to illiteracy.
  2. The Tribunal should extend its deadline for receiving input. It is not possible for individuals and community groups to now analyze the Tribunalís detailed proposed rules, formulate responses, get the approval of their community organizationís board, and develop presentations to the Tribunal, all by March 14.
  3. The Tribunal should offer additional avenues for input beyond written submissions. This is needed to accommodate the needs of those who cannot read and/or write, or who donít have access to computers. It would also help meet the needs of the many who donít fully understand the Tribunalís detailed proposals for new rules, and who would benefit from the opportunity to interact with human beings working at the Tribunal, from whom they could solicit explanations where needed.
  4. If this all cannot be completed by the June 30, 2008 start-date for Bill 107, then the Tribunal should call on the McGuinty Government to delay Bill 107ís going into effect. The Tribunal has had since December 2006 to develop and hold a public consultation on its permanent procedural rules. If it has failed to do this within the time available, the June 30, 2008 Bill 107 launch-date should not serve to deny the public their right, guaranteed by Bill 107, to take part in a public consultation on the Tribunalís procedural rules.

It is not good enough for the Tribunal to just extend the opportunity for input to the AODA Alliance. The Tribunal should rectify this situation for all Ontarians.

If the tribunal doesnít correct this situation, the McGuinty Government should intervene to ensure that these four steps are taken.

We will have more to say about the Tribunalís proposed new rules once we have had an opportunity to fully review them. We welcome your feedback at: aodafeedback@rogers.com

*****

Human Rights Tribunal of Ontario
Office of the Chair
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Tel: (416) 314-8425
Toll Free: 1-800-668-3946
TTY: (416) 314-2379
TTY Toll Free: 1-800-424-1168
Fax: (416) 314-0025

Notice to the Community

From: Michael Gottheil, Chair

Date: January 31, 2008

Re: Consultation on Proposed Rules of Procedure to Govern Applications filed on and after June 30, 2008.

The Tribunal is releasing draft Rules of Procedure for review and comment by members of the community with an interest in Ontario's human rights system.

These Rules are proposed to govern the process for applications under the Human Rights Code as it will be amended when the Human Rights Code Amendment Act, 2006 is fully effective on June 30, 2008. The Rules are intended to provide for a fair, just and expeditious resolution of the merits of applications made under the Code.

Not all members of the community will have an interest in commenting on the Tribunalís procedural rules. We want to also invite you to go to our website to see other information about our new mandate, including a Ďplain languageí description of our new process. We welcome your input and feedback in all areas of the Tribunalís work.

I encourage you to have a look at the attached draft Rules. The consultation materials can be accessed from the Tribunal's website at the following link: http://www.hrto.ca . Should you wish to receive this material in alternative format, please contact the office of the Chair at: Christine.Dion@ontario.ca

Comments on the draft Rules will be received until March 14, 2008, after which the Tribunal will compile and review the feedback received and we will prepare the final version of the new Rules of Procedure. We expect to release the final version of the Rules, along with Forms and a user guide in May 2008.

We look forward to receiving your input.

Thank You.