ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE
TORONTO STAR REPORT PROVES AODA ALLIANCE CORRECTLY PREDICTED PROBLEMS WITH MCGUINTY GOVERNMENT’S 2006 PRIVATIZATION OF HUMAN RIGHTS ENFORCEMENT IN ONTARIO
May 29, 2010
Now that the Ontario Legislature has passed Bill 231, including provisions on making Ontario elections accessible to voters with disabilities, our attention turns to other important issues in our campaign to make Ontario fully accessible to persons with disabilities.
On the eve of National Access Awareness Week, we want to bring to your attention a very troubling report in last month’s Toronto Star on backlogs in the system in Ontario for enforcing human rights. The information set out in these April 17, 2010 Toronto Star reports, set out below, proves that AODA Alliance predictions were accurate in 2006. We predicted these backlogs back then when the McGuinty Government privatized the enforcement of human rights in Ontario. We take no pleasure in the fact that our predictions turned out to be accurate.
In this update we:
- give you a short background to the 2006 changes to the enforcement of human rights that Bill 107 created and concerns we raised about these back in 2006;
- summarize what the April 17, 2010 Toronto Star reports showed about backlogs in the system;
- list key quotes from the Toronto star reports and
- then set out the actual articles from the Toronto Star.
SHORT BACKGROUND ON BILL 107’S REFORMS TO THE HUMAN RIGHTS ENFORCEMENT SYSTEM
Before the McGuinty Government passed Bill 107 in 2006, a discrimination victim had access to a public law enforcement system for enforcing their human rights. They could file a discrimination complaint with the Ontario Human Rights Commission, a public law enforcement agency. The Human Rights Commission was required to investigate each complaint, if it was not frivolous, and to try to resolve it. If the evidence warranted it, and the case did not settle by agreement, the Human Rights Commission had the mandate to publicly prosecute it before the Human Rights Tribunal.
That pre-2006 human rights enforcement system was bogged down in delays, because it was under-funded and inadequately run. In 2006, instead of reforming its administration and properly funding it, the McGuinty Government took the backwards step of privatizing the enforcement of human rights. It took away the right to a public investigation of human rights complaints and to a public prosecution of them where the evidence warranted it. Instead, Bill 107 requires discrimination victims to investigate and prosecute their own human rights cases before the Human Rights Tribunal.
In 2006, we raised serious concerns with this proposed change to the human rights system and offered constructive solutions. The McGuinty Government ignored our concerns. It used its majority in the Legislature to pass that legislation. It denied us a right to appear before a Standing Committee of the Legislature to offer amendments. It had promised and scheduled public hearings, but used a closure motion to cancel them once it was clear at the earliest public hearings that a rising tide of opposition to Bill 107 was growing. The entire history of this is available at: http://www.aodaalliance.org/reform/default.asp
One of our major concerns in 2006 with Bill 107 was that under this new system, it would be very important for a discrimination victim to have a lawyer to help them navigate a case through the Human Rights Tribunal. This is especially so when the government or private businesses typically can afford lawyers to defend them when accused of discrimination. That concern was amplified after Bill 107 was passed and the Human Rights Tribunal adopted new rules of procedure. Those new procedures make representation by a lawyer even more crucial for a discrimination victim to navigate the system. See: http://www.aodaalliance.org/strong-effective-aoda/03282008.asp
In 2006, the McGuinty Government committed that under Bill 107 there would be a free independent lawyer for each discrimination victim throughout the Human Rights Tribunal process. For example, during public hearings on Bill 107 before the Standing Committee on Justice Policy (occurring before the McGuinty Government’s closure motion shut these hearings down), Government MPPs speaking for the McGuinty Government said the following:
August 8, 2006 London
David Zimmer: “I should point out -- you may or may not be aware of this -- the Attorney General has publicly committed in the Legislature -- it's a matter of record in Hansard -- to amend section 46 to provide full legal support to Ontarians who have to turn to the human rights system. So at the end of this process, I expect, as the Attorney General has said, there will be an amendment to ensure full legal support of complainants at the tribunal/commission.
Mr. Zimmer: Just to respond to your comment -- and I thank you for your support and the constructive criticism that you offered. We want to work with the community to make this an even better bill.
You offered the comment that the community hasn't seen anything by way of amendments yet. Let me just say this. First, I did have my BlackBerry out before and I read the commitment the Attorney General made in the Legislature, for instance, on section 46, to ensure that there was
sufficient, proper and effective representation.
Deborah Matthews: “I asked the Attorney General in the Legislature if he would clarify the intent of the government to ensure that people do have the legal representation they need, and he has given that assurance.”
Deborah Matthews: The other thing is that I raised the question in the House with regards to legal support and was assured very, very clearly by the Attorney General that there will be an amendment that will ensure that people will get the support they need to achieve justice. Your concern has been heard and assurances have been given. So be patient. This does take time, and we will address your concerns.
August 9, 2006 Ottawa
Mr. David Zimmer (Willowdale): I just want to point out that subsequent to the bill being introduced, in response to a question in the Legislature, the Attorney General did commit to introducing an amendment which would ensure that everyone before the tribunal would, in fact, have their own independent legal counsel. So your point on the representation has been well taken and addressed by the Attorney General in the Legislature. He's made that public commitment.
August 10, 2006 Thunder Bay
Mr. Zimmer: Just in case you're not aware, I want to point out that the Attorney General in the Legislature has made a clear and unequivocal commitment to amend the bill to ensure that everybody who has a complaint before the tribunal does receive legal support, has a lawyer attached to their case to see the case through with them.
Mr. Bill Mauro (Thunder Bay-Atikokan): The concern has been raised by the two or three speakers I've heard about whether or not people, if they go directly to the tribunal, are going to have the ability to have publicly funded representation if they're the complainant. The Attorney General has publicly committed in the House to amendments in the legislation to ensure that that will happen. See: http://www.aodaalliance.org/reform/update-081806.asp
To keep this major commitment, the McGuinty Government established the Ontario Human Rights Legal Support Centre to advise and represent discrimination claimants. We have previously voiced our concern that that Centre has far less funding than the Ontario Human Rights Commission used to receive. The Legal Support Centre, unlike the Human Rights Commission, has no investigation power to enter an organization and investigate allegations of discrimination. Moreover, that Centre can and does regularly turn away human rights cases it chooses not to take. If the Centre turns away your case, a discrimination claimant has no recourse against the Centre. The Centre is not publicly accountable for how it picks and chooses what cases to take on, and which ones to turn away.
AODA ALLIANCE PREDICTIONS UNFORTUNATELY COME TRUE
Back on February 9, 2009, the AODA Alliance proved before a Standing Committee of the Ontario Legislature that key concerns that we raised in 2006 about bill 107 were already turning out to be true. For details on this, visit: http://www.aodaalliance.org/strong-effective-aoda/02112009.asp
The April 17, 2010 Toronto Star articles further prove some of the concerns we raised back in 2006. They show that only a very troubling 57% of discrimination complainants could even get the Centre to answer their calls. If the Human rights Commission had a sorry record of delays in dealing with cases before Bill 107 took away from the Commission the job of investigating and prosecuting individual human rights complaints, there was never a claim that only 57% of their calls even got answered.
The Toronto Star reports make it sound like there has been a spike in the use of the system. Yet, these Toronto Star articles include statistics that show that there has been a dramatic drop in the calls that are even made to the human rights system, compared to the situation before the passage of Bill 107. The Toronto Star reports that last year, the Human Rights Legal Support Centre got 38,579 calls. As we told the Legislature’s Standing Committee on February 9, 2009, in the mid 2000’s the Human Rights Commission would annually receive between 50,000 and 65,000 calls per year. This suggests that there has been a significant fall-off in the number of discrimination claimants that even take the step of contacting the human rights system in Ontario.
The Toronto Star reports also show that the reality under Bill 107 is a far cry from what was promised in terms of discrimination victims getting actual hearings before the Human Rights Tribunal. In 2006, the small group of lawyers who successfully advocated for Bill 107 criticized the old system, in part because most discrimination claimants had their cases resolved without a hearing before the Human Rights Tribunal. Discrimination victims, they argued, want their day in court, so they can tell their story in public before the Human Rights Tribunal.
The Toronto Star articles show that under the new Bill 107 regime, the vast majority of those discrimination claimants who do get through on the phone don’t end up telling their story at the Tribunal at a hearing. As was the case under the pre-2006 human rights system, most discrimination claimants either get turned away by the system, or get their cases deferred or resolved without a hearing before the Human Rights Tribunal.
These Toronto Star articles do not even address the plight of the large numbers of human rights complainants who had cases in the old pre-2006 system, and who were caught up in the transition to the new system. This state of human rights enforcement is very troubling, two years after the McGuinty Government implemented its reforms that were meant to speed up an already-backlogged system of human rights enforcement. This is all the more troubling since after 2006, the McGuinty Government announced that it was increasing its funding to the human rights enforcement system under this new regime.
We do not share the unfounded optimism of the Human Rights Legal Support Centre’s executive director, reported in these articles, that this is a situation of “pent up need” that will hopefully resolve itself over time. This mess is instead a result we repeatedly predicted, but which the McGuinty Government blocked us from presenting to the Legislature’s Standing Committee, debating Bill 107, by its 2006 closure motion. See: http://www.aodaalliance.org/reform/update-112006.asp
This all shows that there is a pressing need for the Government to promptly enact the accessibility standards that have been under development for years under the Accessibility for Ontarians with Disabilities Act, and to promptly implement a strong, speedy and effective enforcement system under the AODA. It also shows a pressing need for Bill 107’s privatization of human rights enforcement to be reviewed, reconsidered and revamped. For example, there also needs to be a prompt and full public accounting of how the Human Rights Legal Support Centre discharges its new gate-keeping role, e.g. how it decides whom it will legally represent, whom it will turn away, and of those people it represents, what level of representation it will provide.
The Toronto Star reports include the following key quotes:
- “Ontario's newly streamlined human rights watchdog is swamped with allegations of sex, race and disability discrimination, the Star has found.
"We are really overwhelmed by our volume of cases now," said Katherine Laird, the senior official whose job it is to support people who say they are victims. "Our phones are ringing off the hook."”
- “Laird's office, the Human Rights Legal Support Centre, helps claimants going before the tribunal, but its telephones are so jammed that staff answered just 57 per cent of the 38,579 calls it received in the year ending March 31.
Ontario Human Rights Commission chair Barbara Hall believes only a small number of cases are ever reported. "This is the tip of the iceberg," she says.
It is too soon to determine whether discrimination is on the rise or if this deluge is the effect of public awareness campaigns for the new system. But the Star's examination of at least 50 public cases and dozens of normally private mediated ones gives a stark picture of rampant racism and discrimination.”
- “In 2009, the tribunal received 3,400 new cases, a jump of more than 1,000 from the old system.”
- “Claimants can get free help from the legal support centre, though many opt for lawyers in private practice.”
- “Change has been dramatic. Under the old system, there would be a final decision in only 15 hearings a year. Now, the tribunal is issuing decisions at least 15 times each month.”
- “Favourable decisions are by no means guaranteed. Last year, according to tribunal figures, adjudicators decided in favour of the complainant in 19 of its new cases, and against in 34. The other new 1,400 cases were deferred, dismissed or withdrawn. A case might be perfectly valid but dismissed because it's currently before another body, such as a labour arbitration hearing or a civil court. Some are dismissed because they're filed a year or more after the alleged discrimination occurred. And many are withdrawn because both sides reach a settlement.”
- “Some people who have experienced discrimination will eventually get advice. Others give up and never call back.
Earlier today, the Star revealed that the centre is swamped with allegations of sex, race and disability discrimination, leaving front-line staff able to answer only 57 percent of the 38,579 calls received in the year-long period ending March 31.”
- “Last year, more than 16,000 callers seeking advice on racism and discrimination could not get though to the Human Rights Legal Support Centre, the office created to provide legal advice and representation, when the Attorney General streamlined the system in June 2008.
The new system was created to get rid of a massive backlog of cases, allowing people with claims to get a hearing with the Ontario Human Rights Tribunal.”
- “Katherine Laird is head of the legal support centre. She is pleased that 22,000 callers received advice from intake workers last year. And 1,000 of those cases were either dealt with in lawyer-negotiated settlements or went to the tribunal for mediation or a hearing.
But Laird worries that without at least six additional front-line paralegals, many people who really need help will simply give up.
“We are afraid that we are losing calls from people who have experienced discrimination and in particular,” Laird said, “that we may be losing calls from the more vulnerable people. And, from lower income people without the resources to make repeated phone calls to try to get the legal help they need.””
- “But, lawyers don’t answer the telephones and Laird expects calls to increase as more people with potential claims become aware that under the new system, their case can get a hearing instead of sitting in a file for years.”
The AODA Alliance had no input into these Toronto Star articles. The Toronto Star did not contact us when investigating this issue.
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April 17, 2010
Complaints overwhelm human rights watchdog
$15,000 'gypsy' slur: Coffee shop confrontation among countless tales of rampant racism, work discrimination
Photo: Zuper Direk, 64, outside the west-end Coffee Time that he accused of discriminating against him because he's Turkish. A tribunal ruled in his favour. Photo by: RICK MADONIK/ TORONTO STAR
Ontario's newly streamlined human rights watchdog is swamped with allegations of sex, race and disability discrimination, the Star has found.
"We are really overwhelmed by our volume of cases now," said Katherine Laird, the senior official whose job it is to support people who say they are victims. "Our phones are ringing off the hook."
The Ontario Attorney General created a new human rights system nearly two years ago, making it easier for people with claims to get a hearing before the Human Rights Tribunal of Ontario.
Laird's office, the Human Rights Legal Support Centre, helps claimants going before the tribunal, but its telephones are so jammed that staff answered just 57 per cent of the 38,579 calls it received in the year ending March 31.
Ontario Human Rights Commission chair Barbara Hall believes only a small number of cases are ever reported. "This is the tip of the iceberg," she says.
It is too soon to determine whether discrimination is on the rise or if this deluge is the effect of public awareness campaigns for the new system. But the Star's examination of at least 50 public cases and dozens of normally private mediated ones gives a stark picture of rampant racism and discrimination.
Tribunal decisions show that women, minorities and the disabled are most vulnerable to discrimination by employers, landlords and businesses. In some cases both the victim and the defendant belong to racial minorities but are from different backgrounds. Some examples:
- The owner of a Coffee Time doughnut shop in Toronto's west end had to pay $15,000 to Zuper Direk, a customer she referred to as "gypsy," after telling him she didn't want Turks in her store.
The tribunal adjudicator for the case found that owner Sieu Yien Tay had repeatedly told Turkish customers that she did not like them and had accused Direk of spreading rumours about her coffee, saying, "You Turkish people go – don't make rumours; I hate Turkish people," before calling police to complain about a "Turkish" man.
Sieu Yien Tay declined to be interviewed.
- A black couple received $5,000 and a letter of apology after they were ignored at a restaurant they had gone to as part of a corporate training session.
After arriving, the couple were asked several times by restaurant staff if they were aware they were standing in a private function area. The couple twice showed them their tickets – and finally propped the tickets on their table.
The waitress ignored them but served drinks to all the white people at the table. Finally, a white person had to order drinks for them. Later, the manager tried to apologize for his staff's behaviour, saying the black couple was dressed better than the rest of the group and suggesting the woman looked like she could be a "lady of the night."
At the end of the evening, the manager stopped the couple at the elevators and tried to give them some souvenir boxes, which he said would be good for storing drugs. They told him they didn't use drugs. The manager insisted they take the boxes.
- A manager on maternity leave from a travel agency was awarded $27,500 in damages and lost earnings after her boss pressured her to step down, since "women who have children do not really want to be managers." The workplace she returned to after her leave was so hostile she eventually quit.
- A blind man received $80,000 in a negotiated settlement after the company he had worked at for 20 years refused to recall him after a short, temporary layoff.
- A black woman whose colleague taunted her with racial slurs won $15,000 through mediation. When she complained about the racist comments to her supervisor, he began to scrutinize her every move. She wrote a letter to the company president asking for help, and he fired her the next day.
The new system was created to clear away a massive backlog. Prior to June 2008, human rights complaints were vetted by the Ontario Human Rights Commission, which would decide which cases would be sent to the tribunal for hearing. It took years to investigate complaints and decide whether to pass them on to hearings or mediation.
In 2009, the tribunal received 3,400 new cases, a jump of more than 1,000 from the old system.
Now, the commission has a public education role, and any claims alleging a breach of the Ontario Human Rights Code go directly to the tribunal. Claimants can get free help from the legal support centre, though many opt for lawyers in private practice.
Change has been dramatic. Under the old system, there would be a final decision in only 15 hearings a year. Now, the tribunal is issuing decisions at least 15 times each month.
The Star began to look into the human rights cases after publishing the story of one recent case. Cheryl Khan's former boss at a Toronto trucking company called her a "Paki" and said her children were "half nigger babies," according to a recent tribunal decision.
The owner of the trucking company was forced to pay a $25,000 fine and take anti-discrimination training.
Khan's case worked its way through the tribunal within a year.
The Ontario Human Rights Code makes it illegal to discriminate against a person on 15 different grounds, including race, sex (including pregnancy), disability and sexual orientation. At least 75 per cent of all cases are work-related.
Human rights hearings are not as complex as court trials, but adjudicators, most of whom are lawyers, still make their decisions based on evidence, witnesses and credibility.
Favourable decisions are by no means guaranteed. Last year, according to tribunal figures, adjudicators decided in favour of the complainant in 19 of its new cases, and against in 34.
The other new 1,400 cases were deferred, dismissed or withdrawn.
A case might be perfectly valid but dismissed because it's currently before another body, such as a labour arbitration hearing or a civil court. Some are dismissed because they're filed a year or more after the alleged discrimination occurred. And many are withdrawn because both sides reach a settlement.
When the worker does succeed, the company usually agrees – at its own expense – to create anti-discrimination policies and hold training workshops for employees. These orders are an effort to stop future cases, making prevention a key part of the system.
Seema Saadi brought a case of discrimination "on the grounds of race, colour, ancestry, place of origin, ethnic origin, disability, creed and sex" against her employer, a company that ran a federally funded program created to help immigrant women settle in Canada.
Born in Toronto, Saadi graduated from York University with a degree in sociology and environmental studies. She is a Muslim woman of South Asian descent who wears a hijab.
In May 2008, Saadi landed her dream job as a bilingual intake worker for new immigrant women at a company called Audmax. According to the tribunal decision, she sensed immediately that there were problems among some employees, including two Muslim women who also worked there. Like Saadi, the two Muslims were fluent in French and English.
Saadi tried to stay quiet and fit in, she later told the tribunal, but felt "shaken" by comments about her culture and long, modest clothing.
The tension escalated. It wasn't long before a new office policy banned the use of French among the three Muslim women. Company owner Maxcine Telfer told the hearing that the intent of the ban was to promote better communication and collegiality among staff.
After the two other Muslim women quit, Saadi said she began to feel targeted and believed it was just a matter of time before she would be asked to leave.
Telfer watched her closely, Saadi said. At one point, she held a staff training session called "dress for success" during which she and other employees modelled their outfits to demonstrate proper office attire.
Telfer showed staff how a blazer could be used to dress up an outfit. She told them a woman could remove her blazer after work for a casual look, with a sleeveless blouse underneath. She recommended skirts and heels. Saadi wore a hijab and long, loose clothing. She told the hearing that she would have been very uncomfortable in the clothing Telfer recommended.
A new problem arose. After Telfer complained about the smell of Saadi's homemade lunch, which she had warmed in the microwave, a microwave food policy was created to ban certain meals.
In her testimony, Telfer admitted the types of food banned under her new policy were hard to pin down.
"You don't know until you smell," the company owner said.
In an interview, Saadi said she brought her lunch to work because it was cheaper and healthier, but after Telfer complained about the smell – she recalls that it was a curry – Saadi was afraid to use the microwave again.
Once, office workers were sharing a lunch and Saadi heated another employee's food without realizing it was spicy.
"I was so scared," she told the Star. "I was with a client but I was so worried that I would get in trouble."
Two months after Saadi started working at Audmax, Telfer fired her. She was reportedly not a good "organizational fit."
Saadi took her case to the tribunal and, with help from a lawyer at the legal support centre, won a $36,000 settlement against Audmax and Telfer.
The adjudicator ordered Telfer to take cultural and sensitivity training. She also had to get an independent expert to review Audmax's anti-discrimination practices.
Telfer, who represented herself at the hearing, told the Star she has hired a lawyer to appeal the decision. In an interview, her lawyer, Ted Charney, said his client was not allowed to call a key witness and did not get a fair hearing.
For her part, Saadi says she is pleased with the results but still troubled by what happened.
"I am not as idealistic as I once was. I don't understand why this is still happening when people are so educated now.
"It is a small victory. But I think life is made up of a lot of small victories. You always have to stand for the truth."
The recent decision in the case of Marjorie Harriott v. National Money Mart Co. and Desmond Wade is an example of sexual harassment and a major corporation that did nothing to protect its workers.
According to the tribunal decision, Wade stared every day at the women who worked for him at the Money Mart outlet he managed, looking them up and down, his eyes settling on their breasts.
During a conversation with one worker, he stared at her chest until she told him, "I'm up here."
His eyes didn't shift.
Marjorie Harriott started working for Wade in April 2007, and during the time she was at the Danforth cheque-cashing outlet, at least three women complained to company supervisors about him.
Their stories were consistent. He brushed up against them when they bent over, he leered at them, and he made endless comments about their clothes and bodies.
Once, when a female employee arrived late to work and rushed into the washroom, he asked, "Is that sperm I smell?"
On one occasion, when a worker was inside the vault, Wade stood in the doorway, blocking the way with his arms against the frame. She yelled at him to let her out, but he kept her there for five minutes. Finally he moved aside and allowed her to pass by, although she had to brush against him to do so.
The women complained to Wade's female supervisor, who said they had to deal with him themselves. Later, when Harriott complained about him to Money Mart's human resources department, the same supervisor made it clear that she did not believe her.
Harriott is a single mother without an extensive education. She needed the customer service job at Money Mart. But she grew increasingly upset with her manager. When she needed help with a customer, Harriott had to call on Wade. He brushed up against her or placed his hand over her hand on the computer mouse.
Later, when she brought her sexual harassment case before the tribunal, Harriott testified that Wade bumped or "bounced" against her numerous times. She testified that Wade would say "oops" or "sorry."
Once, when she was bending over to get money from the safe in the vault, Wade pushed the front of his body against her bottom. She told the adjudicator he said: "I'm just waiting to go to the manager's safe." Wade denied this ever happened.
Each Money Mart employee wears a "panic button" around his or her neck, in case of an emergency or robbery. Just before Christmas of 2007, Harriott told the tribunal, Wade walked up and said, "Let me fix your panic button," as he massaged her neck and stared at her breasts. He walked away, then came back and hung the panic button over her neck.
"Try to wear something with a collar so the panic button won't chafe your skin," he said, according to the decision.
Harriott said she was upset for the rest of the day, couldn't deal with customers, and had a panic attack. Her stress grew and her performance at work deteriorated. She said she was vomiting and suffering from headaches and sleepless nights. She tried getting shifts at different branches in a bid to get away from Wade.
Harriott called a Money Mart human resources officer, who said he needed a letter before he would help. She sent him an email, and they arranged to meet.
He brought along Wade’s supervisor, who had heard the earlier complaints from workers. Harriott testified that the supervisor kept asking, "Are you sure this is sexual harassment?" At the end of the meeting the supervisor agreed to transfer Harriott to another branch.
Harriott told the tribunal she felt ashamed and blamed herself for what happened. She was afraid she might lose her job because she had complained. She got the impression that the supervisor thought she should just tolerate Wade's behaviour and not speak out.
In the following months, her performance reports recorded low scores, although her marks were improving when the company received an angry email from a customer who complained about Harriott's bad service. Money Mart fired Harriott.
She took her case to the tribunal. In a decision released on Feb. 17, tribunal vice-chair Alan Whyte did not find she had been fired as a reprisal for her sexual harassment complaints. But he did rule that Harriott had been sexually harassed and ordered Money Mart and Wade to pay her $30,000.
Whyte said Money Mart had "completely failed" to investigate her complaints. He found "numerous references in the evidence to the derogatory, insulting and crude comments" and said they "created an uncomfortable, unwelcome, unprofessional, sexualized atmosphere."
In an interview, Wade said that he is innocent of all the allegations against him. "I am just a kid from the Caribbean who came to Canada for a better life, and look what happened to me," he said.
Money Mart was ordered to change its harassment policy and conduct training of all managers throughout Ontario.
In a statement, Larry Taylor, National Money Mart president, said the company supports the tribunal decision and will distribute its new harassment policies to all employees. "We sincerely regret that this happened," the statement read.
Complaining about discrimination is not for the faint of heart.
"I think that most people will not pursue legal action," says Laird of the Human Rights Legal Support Centre.
"If you raise sexual harassment or racial harassment, you are almost certainly not going to be able to stay in the workplace, so you are putting your livelihood at risk."
Even those whose complaints result in a hearing are often scarred by the emotional experience, says Frances Henry, a retired York University professor and racism expert. She has testified at dozens of tribunal hearings.
"I have personally seen people whose lives have been totally destroyed by the attempt to fight their own victimization."
William David Smith sold used cars for Menzies Chrysler in Whitby until he was fired for complaining that a colleague – another salesman – had repeatedly exposed his penis to him while they were at work.
The sales staff worked out of a trailer at the back of the large dealership at Thickson Rd. and Highway 401. Smith and fellow salesman Tom Graham had the two best desks – at the front door, where they could see potential customers from the window.
According to the tribunal decision, Graham took delight in removing his clothes in the office and waving his penis at Smith, gyrating his hips and laughing at Smith's clear discomfort. He told Smith to perform oral sex on him.
Once, he stood in the room wearing nothing but cowboy boots, brandishing two hair dryers as if they were guns, thrusting his pelvis at Smith.
Smith complained, but his bosses did nothing. He moved his desk to a poorer location at the back of the trailer. He complained again, but managers defended Graham. Smith grew angry. His sales dropped. The company fired him.
Smith hired Whitby lawyer Paul McKeever.
It was an unusual case: sexual harassment involving two heterosexual men.
During a hearing last fall, Smith's lawyer told the adjudicator that if the Human Rights Code forbids that type of behaviour between a man and a woman, then the same standard should apply to two straight men.
"Mr. Smith was once a No. 1 salesman," McKeever said in an interview. "But after enduring this, his performance fell off."
It was a sexualized form of workplace bullying in a workplace that promoted aggressive male competition, McKeever said.
"My closing submissions were, you've got a guy (Graham) who is proud of his anatomy, he knows he's got Mr. Smith's number, he knows he's got him feeling bad. It's one of these, `I'm more manly than you are. You are beneath me.'
"If you want to undermine someone's ability to sell, you've got to undermine their masculinity."
After Smith launched his complaint, the company told police that he had not completed payments to them on the car he was driving. Theft and other charges were laid against him.
Smith said he had the bill of sale. As the tribunal's decision last fall reveals, the Crown attorney later dropped those charges after Smith agreed he would not sue the Crown, the police or Menzies Chrysler.
Smith was awarded $50,000 by the adjudicator, with responsibility for the payout to be shared by Graham, the company and its managers.
The tribunal ruled the company must create a new anti-harassment policy. No one has paid yet. Graham, who now works for a Newmarket used car company, and Menzies Chrysler are appealing the decision.
Graham said his lawyer told him not to comment. The Star left messages for Clark Menzies, who co-owns the dealership and was Graham's manager. He did not return the calls.
Smith says he can no longer find work in Whitby, where his wife and children live. He now flies out to British Columbia, where he drives a truck for weeks, then flies home.
"Am I bitter? he said in an interview. "You bet I am."
Toronto Star April 17,2010
Rights watchdog needs help — critic
Call Ontario’s new human-rights legal centre for help with racism and the telephone wait time could last up to 20 minutes.
Some people who have experienced discrimination will eventually get advice. Others give up and never call back.
Earlier today, the Star revealed that the centre is swamped with allegations of sex, race and disability discrimination, leaving front-line staff able to answer only 57 percent of the 38,579 calls received in the year-long period ending March 31.
Those delays have to end, said MPP Cheri DiNovo, the NDP human rights critic, who called upon the Ontario Attorney General to give more money for additional front-line workers so the legal office can get the job done.
“If you are going to set up a system, you’ve got to have enough people in place to answer the phones and carry the cases through to completion,” DiNovo said.
“And if we can’t properly fund them, then let’s look at doing something else, because really you are just leading people on and then betraying them in the final analysis.”
Last year, more than 16,000 callers seeking advice on racism and discrimination could not get though to the Human Rights Legal Support Centre, the office created to provide legal advice and representation, when the Attorney General streamlined the system in June 2008.
The new system was created to get rid of a massive backlog of cases, allowing people with claims to get a hearing with the Ontario Human Rights Tribunal. Previously, they had to call the Ontario Human Rights Commission, which vetted the cases and sometimes took years before sending them to the tribunal.
The Star examined at least 50 public cases and dozens of normally private settlements, the details of which gave a bleak picture of human rights in Ontario, particularly in the workplace. Sexual harassment was fair game. Women were demoted after returning from maternity leave. Complaints about racism slurs resulted in the victim’s firing.
Katherine Laird is head of the legal support centre. She is pleased that 22,000 callers received advice from intake workers last year. And 1,000 of those cases were either dealt with in lawyer-negotiated settlements or went to the tribunal for mediation or a hearing.
But Laird worries that without at least six additional front-line paralegals, many people who really need help will simply give up.
“We are afraid that we are losing calls from people who have experienced discrimination and in particular,” Laird said, “that we may be losing calls from the more vulnerable people. And, from lower income people without the resources to make repeated phone calls to try to get the legal help they need.”
It would cost no more than $500,000 annually to hire six more paralegals. The centre has an annual budget of $5 million.
Laird said she is in talks with the Attorney General’s Office for more resources. “This is not a good time to be seeking increased funding,” she noted.
Instead, the centre has taken a “creative” approach to manage the funding shortfall. Workers are meeting with community groups to educate them on what is considered a breach of the Ontario Human Rights Code so they can give advice and possible help decreased the number of queries coming in.
It is also training lawyers in private law firms across Ontario to do some pro bono work.
But, lawyers don’t answer the telephones and Laird expects calls to increase as more people with potential claims become aware that under the new system, their case can get a hearing instead of sitting in a file for years.
“I think there is a pent up need and that we will over time hopefully see two things: That both employers and landlords ... change their business practices so that we have less discrimination.
“And that the most vulnerable groups claim their rights successfully and hopefully without the need to litigate. That is the goal — that we have a paradigm shift and Ontario is a fairer place for everyone.”