Our Campaign for Strong, Effective Implementation of the AODA

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

TEN KEY MCGUINTY GOVERNMENT COMMITMENTS ON BILL 107 AND REALITY CHECK

July 2, 2008

Note: For a full background of the public record on this issue, visit: http://www.aodaalliance.org/reform/default.asp

SUMMARY

The McGuinty Government has given ten major commitments under Bill 107:

  1. Commitment of free legal representation for all human rights complainants.
  2. Commitment that the Human Rights Legal Support Centre will investigate the cases of people they represent.
  3. Commitment of the Human Rights Legal Support Centre to meet with everyone who wants legal representation.
  4. Commitment to provide legal services across Ontario.
  5. Commitment of Human Rights Legal Support Centre to pay for expert witnesses for their clients.
  6. Commitment to having human rights cases decided within one year of filing a complaint under Bill 107.
  7. Commitment that legal support to be provided to all regardless of income.
  8. Commitment to establish Anti-Racism Secretariat and Disability Rights Secretariat at the Human Rights Commission.
  9. Commitment that Human Rights Commission will become stronger force for human rights.
  10. Commitment that Bill 107 responds to the Cornish and LaForest reports.

DETAILS OF THE COMMITMENTS

1. Commitment of Free Legal Representation for All Human Rights Complainants

a. Former Attorney General Michael Bryant:

“We would ensure that, regardless of levels of income, abilities, disabilities or personal circumstances, all Ontarians would be entitled to share in receiving equal and effective protection of human rights, and all will receive that full legal representation.”

(April 26, 2006, Ontario Legislature, First Reading of Bill 107)

b. David Zimmer, Parliamentary Assistant to the Attorney General:

“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."

(August 8, 2006 Standing Committee on Justice Policy, London)

c. David 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.”

(August 8, 2006 Standing Committee on Justice Policy, London)

d. Deborah Matthews (Liberal):

“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.”

(August 8, 2006 Standing Committee on Justice Policy, London)

e. 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 8, 2006 Standing Committee on Justice Policy, London)

f. David Zimmer:

“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 9, 2006 Standing Committee on Justice Policy, Ottawa)

g. David 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.”

(August 10, 2006 Standing Committee on Justice Policy, Thunder Bay)

h. Bill Mauro:

“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.”

(August 10, 2006 Standing Committee on Justice Policy, Thunder Bay)

i. Mr. Raj Anand (now chair of the Board of the Human Rights Legal Support Centre, then appearing on his own behalf):

“The other aspect is a mandatory legal support centre. Again, as I understand the announcement this morning, that is going to be enshrined in legislation. It's important that that legal support centre be independent of government, of the commission and of the tribunal, and that it be properly funded. I commend the proposed amendments that make this mandatory, because direct access, and I would be the first to say this, falls to the ground without proper legal advice and representation. What you get is the BC model or, indeed, the present Human Rights Code, neither of which provides this essential representation function.”

(November 15, 2006 Standing Committee on Justice Policy Toronto)

j. Mr. Raj Anand:

Mr. Kormos: Mr. Anand, you know, I hope, that I am a fan of yours, because I have counted on your counsel and relied upon it any number of times. In your comment about the funding proposal, I was here, as you were, with the Attorney General, who conjured up visions of offices of the worker adviser or legal aid clinics across the province that are hard-pressed to deliver the modest amount of services that they're mandated to do.

We were up in Thunder Bay and we had a presentation by the aboriginal legal aid clinic -- I hope I haven't mistitled it. This small legal aid clinic is responsible for the two ridings of Kenora-Rainy River and Timmins-James Bay -- Howie Hampton's and Gilles Bisson's -- which cover the whole border from Manitoba to the Hudson's Bay to James Bay's coast. They're saying that Human Rights Code access was a big issue. That remains to be seen.

Mr. Anand: This can't be a Toronto-centric model. It has to be regionalized as well.

Mr. Kormos: Yes, thank you -- and pretty highly regionalized, huh?

Mr. Anand: I would expect so.”

(November 15, 2006 Standing Committee on Justice Policy Toronto)

k. Ms. Kathy Laird (now Executive Director of the Human Rights Legal Support Centre, then appearing for the Advocacy Centre for Tenants Ontario)

“Under Bill 107, for the first time we will and can have, I believe, like Catherine, a commission that is a champion for human rights. Everyone will have access to the hearing tribunal, everyone will have access to publicly funded legal support, and everyone will be able to have their claims heard and decided at an oral hearing on the merits.”

(November 16, 2006 Standing Committee on Justice Policy Toronto)

2. Commitment That The Human Rights Legal Support Centre Will Investigate The Cases Of People They Represent:

a. Kathy Laird, Executive Director, Human Rights Legal Support Centre

“So when we say, there’s no investigation, we’re going to investigate for our clients. We’re going to do what labour lawyer does when they file a grievance. Most workplace discrimination cases are decided through the grievance system. There is no Commission to investigate. The lawyer does that investigation. We will do that investigation for our clients.”

(June 13, 2006 Community Living Ontario Conference, Toronto, Bill 107 Panel with David Lepofsky)

Note the audio of this panel is available for download at:
http://www.aodaalliance.org/reform/default.asp

3. Commitment of the Human Rights Legal Support Centre to Meet With Everyone Who Wants Legal Representation

Kathy Laird:

“Everyone who comes to us and asks for advice about filing an application, every person we will meet with, and talk to them about their application. …”

(and later)

“David Lepofsky: But you will, you said you will meet with each person who wants to represent you, wants you to represent.

Kathy Laird: Yes, we will.”

(June 13, 2008 Community Living Ontario, Toronto Conference)

4. Commitment to Provide Legal Services Across Ontario

14. Section 45.6(2) of Bill 107 guarantees regarding the Human Rights Legal Support Centre:

(2) The Centre shall ensure that the support services are available throughout the Province, using such methods of delivering the services as the Centre believes are appropriate.

5. Commitment Of Human Rights Legal Support Centre To Pay For Expert Witnesses For Their Clients

Kathy Laird:

“On the first point, if we’re representing someone and they need medical and expert evidence, we will pay for that medical and expert evidence. If we run out of money to do it, I’ll let you know and I hope that you’ll be the first…”

(June 13, 2008 Community Living Ontario Conference)

6. Commitment To Having Human Rights Cases Decided Within One Year Of Filing A Complaint Under Bill 107

Michael Bryant:

“This is a process where somebody can go to the human rights system and within a year you can get a result.”

(November 21, 2008 Ontario Legislature, Closure Motion Debate on Bill 107)

7. Commitment That Legal Support To Be Provided To All Regardless Of Income

Michael Bryant:

“We would ensure that, regardless of levels of income, abilities, disabilities or personal circumstances, all Ontarians would be entitled to share in receiving equal and effective protection of human rights, and all will receive that full legal representation.”

(April 26, 2006, Ontario Legislature, First Reading Bill 107)

8. Commitment To Establish Anti-Racism Secretariat And Disability Rights Secretariat At The Human Rights Commission

a. Then Attorney General Michael Bryant:

“The Human Rights Code Amendment Act, 2006, if passed, would strengthen Ontario's human rights commission. Complaints of discrimination would be filed directly with an enhanced Human Rights Tribunal of Ontario. It would improve access to justice for those who have faced discrimination and increase protection for the vulnerable. Under this legislation, the human rights commission, headed by Barbara Hall, would become an even stronger champion of human rights. The newly enhanced commission would be a proactive body focused on public education, promotion, research, and analysis to prevent discrimination.

The commission would still have a critical role in the resolution of complaints. It would have the ability to intervene in or initiate complaints on systemic issues affecting the public interest before the tribunal. In this way, the commission's time-honoured roles of identifying systemic issues and bringing those issues before the tribunal would not only be maintained but enhanced.

A new anti-racism secretariat and a new disability rights secretariat would be established within the human rights commission to ensure that Ontario and the Ontario Human Rights Commission entrench its long-standing commitment to addressing inequality in historically disadvantaged communities.”

(April 26, 2006 Ontario Legislature First Reading Bill 107)

b. Bill 107 requires the Ontario Government to establish the Anti-Racism Secretariat and the Disability Rights Secretariat:

Bill 107:

30. (1) The Chief Commissioner directs the Anti-Racism Secretariat which shall be established in accordance with subsection (2).

Composition
(2) The Anti-Racism Secretariat shall be composed of not more than six persons appointed by the Lieutenant Governor in Council on the advice of the Chief Commissioner.

Remuneration
(3) The Lieutenant Governor in Council may fix the remuneration and allowance for expenses of the members of the Anti-Racism Secretariat.

Functions of the Secretariat
(4) At the direction of the Chief Commissioner, the Anti-Racism Secretariat shall,
(a) undertake, direct and encourage research into discriminatory practices that infringe rights under Part I on the basis of racism or a related ground and make recommendations to the Commission designed to prevent and eliminate such discriminatory practices;
(b) facilitate the development and provision of programs of public information and education relating to the elimination of racism; and
(c) undertake such tasks and responsibilities as may be assigned by the Chief Commissioner.

Disability Rights Secretariat
31. (1) The Chief Commissioner directs the Disability Rights Secretariat which shall be established in accordance with subsection (2).

Composition
(2) The Disability Rights Secretariat shall be composed of not more than six persons appointed by the Lieutenant Governor in Council on the advice of the Chief Commissioner.

Remuneration
(3) The Lieutenant Governor in Council may fix the remuneration and allowance for expenses of the members of the Disability Rights Secretariat.

Functions of the Secretariat
(4) At the direction of the Chief Commissioner, the Disability Rights Secretariat shall,
(a) undertake, direct and encourage research into discriminatory practices that infringe rights under Part I on the basis of disability and make recommendations to the Commission designed to prevent and eliminate such discriminatory practices;
(b) facilitate the development and provision of programs of public information and education intended to promote the elimination of discriminatory practices that infringe rights under Part I on the basis of disability; and
(c) undertake such tasks and responsibilities as may be assigned by the Chief Commissioner.

9. Commitment That Human Rights Commission Will Become Stronger Force For Human Rights

Michael Bryant:

“Under this legislation, the human rights commission, headed by Barbara Hall, would become an even stronger champion of human rights.”

(April 26, 2006 Ontario Legislature First Reading Bill 107)

10. Commitment That Bill 107 Responds To The Cornish And LaForest Reports

a. Michael Bryant:

“This legislation is the culmination of perhaps more study and consultation than ever before in the history of this Legislature. The former NDP government commissioned an excellent task force to review the human rights system. The Cornish report has been sitting on the shelf since 1992, and matters have only gotten worse; they have not gotten better. The prescriptions and the problems have gotten worse; they have not gotten better.

The need for reform has increased over the years. We owe the author of that report, which inspired these proposals, Mary Cornish, a great public debt. I know the key recommendations in her report are really the inspiration for these reforms. We would like to acknowledge that work, and acknowledge the great report and task force she put forward that we are seeking to implement today. Thank you, Ms. Cornish.

It was the same story in 2001, when the La Forest report by former Supreme Court of Canada Justice Gérard LaForest came down. Again nothing changed.

Reviews, reports, and consultations over the past several years have been strongly urged. The United Nations Human Rights Committee expressed again and again that these recommendations had to be acted upon. The Human Rights Committee of the United Nations recommended that "human rights legislation should be amended at federal, provincial, and territorial levels and its legal system enhanced, so that all victims of discrimination have full and effective access to a competent tribunal and to an effective remedy." That was in 1999, and still nothing happened.

I am proud and pleased that we finally have legislation before this House right now that heeds the call for reform that has been in place throughout the entire political careers of every MPP in this House today.”

(April 26, 2006 Ontario Legislature First Reading Bill 107)

b. Michael Bryant:

“Why did the leader of the third party take the task force that he empanelled, led by Mary Cornish, that called for these reforms and shelve it?”

(November 21, 2006 Ontario Legislature Question Period)

REALITY CHECK

The Government’s commitments should be measured against these statements:

1. Human Rights Legal Support Centre Wont’ Provide Free Legal Assistance To All Discrimination Victims

a. Re the over 4,000 cases now at the Human Rights Commission, who will want legal advice on whether to jump to the new system now, the website of the Human Rights Legal Support centre states:

“The Human Rights Legal Support Centre cannot assist you in deciding if you should abandon a complaint currently at the Commission or in completing the Tribunal’s short-form application to transfer your complaint from the Commission to the Tribunal’s expedited process.”
http://www.hrlsc.on.ca/en/legalhelp.htm

b. Kathy Laird:

“We won’t take cases that don’t have merit at all. If a white man wants to file an application because he’s not allowed into a group that’s supposed to help immigrant women who want… recent arrivals who want help with writing a resume and getting into the job market, then we don’t have to provide a service to that guy who feels that he’s discriminated against because he’s not allowed into that group. And of course, you know, if your case is about the federal government… Like any legal clinic, we can set some priorities in terms of helping those people who need help the most and who are least able to represent themselves… so... but any policies like that that we develop, we’ll develop in consultation with the community.”

(June 13, 2008 Community Living Ontario Conference)

c. David Lepofsky:

Before Kathy decided to jump into this fray, the Government had hired somebody else to set up the Legal Support Centre. Her name was Helena Birt. and Helena spent a year and a half or so getting the Centre ready to pass the torch to whoever was lucky enough to win Kathy's job. And we met with Helena Birt and Helena Birt also spoke at a public forum on the new system last fall. And she made it clear both when we met her privately and when she spoke publicly that the Legal Support Centre would not be able to provide full legal services to everyone who brings a case. Some people may get advice. Some people may get assistance before you go to mediation. Some people will get a lawyer, or from what I gather Kathy’s saying, a non-lawyer legal representative, at a hearing. It was clear that it wasn’t just what Kathy said today. It isn’t just if somebody comes with a case that’s a completely idiotic loser. You know, the white male who says I’m opposing an affirmative action programme that the Human Rights Code totally protects in law and they’ve got no legal complaint. It was made clear to us that because of limits of budget that some people were going to get less than full legal representation through the whole system. So I guess the question, Kathy, that people are going to want to know, I know I’m eager to know and I’ve heard from a lot of people is: Who’s going to decide, how are you going to decide and are you going to give people written reasons if you tell them no, you’re not going to give them full legal representation?

Kathy Laird:

First I want to make sure people understand one thing. That if, for some reason, a person doesn’t get representation from the Centre, and I’m going to return to how that could happen or if that would happen, it’s not like the role of the Human Rights Commission. If The Commission didn’t give you a lawyer and take your case, you could not go to a hearing. If the Commission said no, you were out of luck. No hearing for you. Your case is dismissed forever. If we have to say no to people, then all that means is that they can go forward to a hearing still, but they won’t have us as their lawyer. So this is not a gatekeeping function. This is a public service resource. So then I return to the question that David raised. Everyone who comes to us and asks for advice about filing an application, every person we will meet with, and talk to them about their application. If we think it has no merit, we’ll tell them it has no merit. If you’re a lawyer in private practice, then that happens and the client says I still want to go ahead, and you’ve already told them it’s a lousy case, then you say, okay, I’ll do it for you, but give me a retainer of $5,000. And sometimes that makes people think that this is really worth it. Of course, we don’t do that. And if you’re in a legal clinic and someone comes to you and has a meritless case and they want you to go all the way for them, you think about all the other people out in your community who need help and you say to them: "Look, you can take that case forward and here’s what the hearing will be like and here’s the forms you need but we’re not going to represent you. So, we’ll talk to everyone, and if we think that there are cases where it’s not an appropriate for us to take it forward, we’ll certainly tell people that, just like any lawyer would, in any law office across the province. And the person is free to go to a legal clinic, to go to a private bar lawyer, to retain a paralegal privately, to go on their own. But to the extent that we find that we are needing to conserve our resources that way, we will certainly be transparent about it on a case by case basis of course, but also, will be, once we get our staff together so everyone will hopefully start work, some people on June 30th. You know, why the Premier thought it was, the Attorney General thought it was a good idea to start a new legal process and make everyone turn up on the Monday of the long weekend? I don’t know. That seems mean to me. But anyway, so, you know, we will put our policies on our website, open to consultation, at every stage. So, everything will be transparent. But no, I can’t really, and just like, I, you know, I don’t know, I don’t actually know the answer to your question of whether or not we would put that in writing to the client. I don’t know the answer. I’m going to have to get advice, because I don’t have my lawyers on staff yet.

(June 13, 2008 Community Living Ontario Conference)

2. Legal Support Centre Cannot Tell How Many Hearings Per Year They Can Handle

David Lepofsky:

How many hearings do you think you’ll be able to do per year?

Kathy Laird:

That’s a hard one for me to answer. I’ve been on the job since the beginning of May and all I’ve done is, but I’ll tell you that the Tribunal is estimating that about 500 cases go to a hearing in a year, and so it would seem that we’re sort of thinking that maybe 80% of the people come to us, I don’t know, It’s their choice. These are all guestimates. So then I guess I would calculate what 80% of that is. I’m going to do everything I can to make sure that everyone in that group who wants us to represent them, that we can represent them. Can I do that? You’re going to have to invite me back next year and I will let you know whether I manage. I actually am not in a position to answer that. You know, you bring in these consultants, and I didn’t bring them in, but the Government brought them in. And they try to do stuff to estimate how long every stage will be, like how long will this interview take and this interview and how long will it take to fill out this form and that form and then they add it all up and they try to figure out how much time you have and how much capacity you have for each stage. So I wasn’t part of that and I’m not really familiar with that work. But I’m going to try to run this Centre in a way that makes sure that the people who need representation at the hearing stage and want it from us get it from us.

(June 13, 2008 Community Living Ontario Conference)

3. Cornish And LaForest Reports Press Need For Human Rights Claimants To Have Legal Representation At Human Rights Tribunal Hearings

The Cornish Report stated:

"The public commitment to funding representation for human rights claims is crucial and should be continued. It represents an important statement by Ontarians that discrimination is a societal problem requiring publicly funded solutions.

Second, many if not most people who make a human rights claim need assistance and support. Often they feel hurt, angry, confused, and afraid. Without assistance, they cannot enforce their rights. Opening up access to a hearing may be a hollow achievement if support and advocacy are not provided.

A third reason why advocacy services are essential is that, without them, the hearing process for rights claims at the Human Rights Tribunal will have difficulty functioning efficiently and fairly. While staff of the new Tribunal can and should provide information about how their system works, it would be wrong to suggest that they can fill an advocate role. In order for claims to proceed efficiently at the Tribunal, claimants must have access to trained, publicly funded advocacy services.

Properly trained advocates will not only help prepare claims to go before a hearing, but will also assist in resolving claims through various means of mediation. They will refer people to other services if the issue they raise does not come under the Code."

Similarly, the LaForest report found:

"In our view, providing assistance to claimants is key for the direct access model to be successful. As noted above, the experience in the United Kingdom and Québec have shown that unrepresented claimants are rarely successful, partially because respondents are often large well-resourced corporations or governments. This will be particularly true in the federal sector. The practical result of no assistance would be to deny access. The Human Rights Tribunal process is often complicated and requires experience in human rights in order to assemble and argue a case successfully. In the human rights context many claimants do not speak either official language or have disabilities that may make it difficult for them to access the system. Unrepresented claimants would require more time at the Tribunal hearing. Counsel can help keep the proceedings moving and reduce costs of lengthy hearings.”