ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

MCGUINTY GOVERNMENT QUIETLY PROCLAIMS BILL 107 IN FORCE ON ELECTION CAMPAIGN’S EVE, BEFORE SOLVING KEY PROBLEMS WITH ITS IMPLEMENTATION -- HUMAN RIGHTS ENFORCEMENT WEAKENED AND PRIVATIZED

SEPTEMBER 4, 2007

SUMMARY

In late August, on the eve of Ontario’s 2007 provincial election campaign, the McGuinty Government quietly proclaimed the date when its widely-criticized Bill 107 comes into force. Bill 107 will privatize and weaken the enforcement of human rights in Ontario. Unless the next Government prevents this, Bill 107 goes into force on June 30, 2008. The McGuinty Government took this step before resolving key problems with Bill 107’s implementation, and without first holding an open, accessible province-wide public consultation on its implementation.

Bill 107 makes it harder for persons with disabilities to tackle barriers that impede them from access to jobs, goods, services and facilities. Today’s Toronto Star has an excellent column by Avvy Go on the Bill 107 election issue. (See below)

This column echoes many serious concerns the AODA Alliance and many others have raised for months regarding Bill 107. To learn more about Bill 107’s history, visit:

http://www.aodaalliance.org/reform/default.asp

We urge you to raise Bill 107 as an important issue in this Ontario election. To see what we’ve asked each political party on Bill 107, visit:

http://www.aodaalliance.org/strong-effective-aoda/08262007-OntarioParties-ElectionCommitments-DisabilityAccessibility.asp

For those of you who want a quick update, just read Avvy Go’s column. For those who want a more detailed update on what’s been going on over the past weeks regarding Bill 107, keep reading after Avvy Go’s Toronto Star column.

*****

Toronto Star

September 4, 2007

Opinion

Provincial law abandons victims of discrimination

The government of Ontario quietly proclaimed a seriously flawed law to take effect on June 30, 2008. The new human rights law will make it harder for victims of discrimination to enforce their rights.

Before the law was changed, discrimination victims had the legal right to have the Ontario Human Rights Commission investigate their complaints and to publicly prosecute offenders in cases that merited it.

Last year, the government of Ontario took away that right by proclaiming Bill 107, which privatizes enforcement of human rights and forces discrimination victims to investigate and prosecute offenders themselves. Most simply cannot afford to do this.

Before the passage of Bill 107, many concerned individuals and community groups lined up at the Legislature for an opportunity to criticize it. The government muzzled its critics by abruptly shutting down the public hearings, even as ads were being put into newspapers by the government to invite the public to attend the hearings. Similar tactics had also been used by the Tories under Mike Harris. Then in opposition, the Liberals vowed to bring democratic reform to the Legislature.

When the government forced through Bill 107, it dismissed critics' concerns as overreaction. It promised to rid the system of its "gatekeeping" function and that everyone presenting a discrimination complaint before the Human Rights Tribunal of Ontario would get a lawyer from a newly created Human Rights Legal Support Centre. Yet all the indications about this centre so far seem to contradict their promises.

The newly formed centre will receive a mere 25 per cent of the funding the Human Rights Commission got - and none of its investigative powers. Being so grossly underfunded, the centre simply is not in a position to deliver the promised full legal representation to all discrimination victims, most of whom are people with disabilities and those from racialized communities. Even worse, the Human Rights Tribunal is considering various new and complex legal procedures that will make it difficult for discrimination victims to navigate the system without a lawyer.

Many human rights advocates believe that the effective public enforcement of human rights through a revitalized Human Rights Commission is the way to go. For years, the backlogged, underfunded Human Rights Commission has desperately needed better funding and reforms to make it faster and fairer.

As a cruel irony, after having stripped from the Human Rights Commission most of its powers, the government appointed several new commissioners to belatedly start reforming the commission's process in order to improve its efficiency.

Even more ironic, as a number of community organizations, including the Metro Toronto Chinese and Southeast Asian Legal Clinic and the Accessibility for Ontarians with Disabilities Act (AODA) Alliance, called for a constructive alternative to Bill 107's wrong-headed privatization of human rights enforcement, which was swiftly dismissed by the attorney general. Now the same attorney general is proudly reforming the commission's investigation/ prosecution powers on the eve of shutting those powers down.

Bill 107 leaves a weakened Human Rights Commission in place to educate the public on why it is wrong to discriminate. Yet handing out leaflets will not end discrimination.

Bill 107 shrinks the Human Rights Commission's power to launch its own public interest human rights cases. And with reduced funding to the commission, what guarantee is there that the commission will take on any of such cases?

Bill 107 is great for the very few discrimination victims who can afford to hire their own lawyer, or who are lucky enough to get free legal help from a private law firm or the underfunded yet overworked legal clinics. It is also great for the lucky discrimination victims whom the new human rights centre will choose to represent.

Yet Bill 107 is a disaster for the many discrimination victims who aren't so lucky. For them, accessing justice will be even tougher than it is now.

The government hopes that with time, Ontarians will forget the damage it has caused to human rights in this province. But concerns about human rights reform will not go away. As discrimination victims begin to be turned away by the new gatekeepers, namely the Human Rights Legal Support Centre and the tribunal, they will start wondering what happened to the promise they will all get their day in court.

A strong human rights enforcement system benefits not only those who are victims of discrimination. It is there to protect all of us. Ontarians need more, not less, public human rights enforcement. This is an issue that cries out for attention during the campaign leading up to the Oct. 10 election.

Avvy Go

            *****

BACKGROUNDER ON BILL 107

 

The Human Rights Code bans discrimination on grounds like disability, race, sex, and sexual orientation in access to things like employment and the enjoyment of goods, services and facilities.

Before Bill 107, if you believed someone discriminated against you because of your disability or other protected ground, you could file a human rights complaint with the Ontario Human Rights Commission (OHRC). The OHRC had to investigate your complaint and try to mediate a voluntary settlement. It could send a lawyer to prosecute your case before the Human Rights Tribunal if the evidence warranted it, and if your case hadn’t voluntarily settled.

Bill 107 takes away the OHRC’s public investigation powers. It removes the OHRC as public prosecutor in most human rights cases. It cuts back on the OHRC’s power if it launches its own human rights complaints.

Under Bill 107, if you’ve been discriminated against, you’ll have to file your human rights complaint with the Human Rights Tribunal. You must investigate your own case. The Commission loses its investigation powers. You’ll have to get a lawyer to present your case, or represent yourself. The Human Rights Commission won’t be the public prosecutor to present your case.

The Government promised last year that, under Bill 107, it would give every discrimination victim legal representation at the Human Rights Tribunal. To see these commitments spelled out, visit:

http://www.aodaalliance.org/reform/update-081806.asp

Bill 107 sets up a Human Rights Legal Support Centre. However Bill 107 doesn’t require that Centre to provide the promised full independent legal representation to every discrimination victim.

When Bill 107 was before the Legislature in 2006, the McGuinty Government promised that everyone wanting to make a presentation on this controversial bill would get a chance at public hearings before a Standing Committee of the Legislature. However, after these hearings were advertised and scheduled, and as public criticism of the bill was mounting, the McGuinty Government used its majority in the Legislature to invoke “closure” to shut down those hearings. It did this before most presenters on the waiting list could present at the public hearings.

The McGuinty Government defeated virtually all the amendments that the opposition Conservatives and NDP had proposed at the request of community groups like the AODA Alliance. The Government used its majority to pass Bill 107. The Conservatives and NDP voted against Bill 107, and against the closure of public hearings, raising many of the concerns that community groups like the AODA Alliance had voiced.

WHAT’S NEW

1.         There’s even more clear confirmation that the McGuinty Government broke its promise to provide full legal representation and independent legal counsel to every discrimination victim at the Human Rights Tribunal. This is because:

*          Before it was passed, Bill 107 was never amended to entrench this guarantee, despite McGuinty Government promises to do so. In fact, when the opposition parties moved amendments to Bill 107 last fall to make the bill keep the McGuinty Government’s promise on this issue, those proposed amendments were ruled out of order.

*          In last spring’s Ontario Budget, the McGuinty Government only committed three million dollars annually to the Human Rights Legal Support Centre. This is a mere 25% of the annual funding the Human Rights Commission got in recent years. The Human Rights Tribunal estimates it will get some 3,000 human rights complaints per year. The Human Rights Legal Support Centre cannot possibly provide full legal representation for each discrimination victim with an annual budget that averages $1,000 per case.

*          At a recent meeting with the small staff charged with responsibility for setting up the new Human Rights Legal Support Centre, we got confirmation that the Centre won’t be able to provide legal representation to every human rights case before the Tribunal from beginning to end. Even if the Centre chooses to represent a particular discrimination victim at the Tribunal, it may not be able to continue to later represent that discrimination victim in court, i.e. if the discrimination victim wins the case at the Tribunal, but the discriminating organization applies to court to overturn the Tribunal decision.

2.         The small group of lawyers who advocated for Bill 107 repeatedly blasted the previous Human Rights Code because it made the Human Rights Commission the “gate-keeper” that can decide whether a case will get a hearing before the Human Rights Tribunal. It is now clear that the new Human Rights Legal Support Centre will be a new “gate-keeper.” It will decide which cases get a free lawyer. A discrimination victim whom the Human Rights Legal Support Centre turns down will in reality be denied a fair hearing before the Tribunal, unless they can afford to hire a lawyer. Most discrimination victims, including most persons with disabilities, cannot afford to hire a lawyer.

An illustration of the legal costs that can be involved was the case where David Lepofsky got the Human Rights Commission to fight the Toronto Transit Commission (under the pre-Bill 107 regime), to force TTC to announce all bus and street car route stops for the benefit of blind and vision impaired passengers. The Toronto Star reported that TTC spent between $100,000 and $200,000 to hire a law firm to defend itself in that case. TTC, a commission of the Toronto City Government, could use taxpayers’ money to help cover that expense.

3.         The new “gate-keeper,” the Human Rights Legal Support Centre, will decide behind closed doors who will get one of their few lawyers. We have no information on how this decision will be made.

Right now the McGuinty Government is advertising for people to apply to be appointed to the board of directors of this new “gate-keeper.” The Human Rights Legal Support Centre’s board of directors will be politically appointed by the Government. The McGuinty Government decided to set the period to apply for this all-important board of directors at the high point of the summer holiday season i.e. the last days of August. It only includes as well just a few days at the start of September. To date, the Government has rejected our request that that period be extended to let more people apply to be on that board of directors.

4.         The Human Rights Tribunal hasn’t yet held an open, accessible public consultation on the all-important rules that will govern human rights hearings under Bill 107. The Tribunal has draconian power to make rules that let the Tribunal decide which witnesses a party can call, and lets the Tribunal even forbid a party from calling witnesses that a party considers relevant and important. Informal preliminary information suggests the Tribunal is considering adopting rules which would in effect mean that discrimination victims would need a lawyer to fulfill the rules’ detailed requirements.

Thus, the Government proclaimed Bill 107 to come into force even though the Human Rights Tribunal is thinking of in effect making it practically necessary for a discrimination victim to have a lawyer, while the Human Rights Legal Support Centre has made it clear it cannot provide a lawyer for every discrimination victim. This is a disaster waiting to happen.

5.         Last January the McGuinty Government’s Attorney General, Michael Bryant, announced intent for public consultations on Bill 107’s implementation. To date, he has not announced any open, accessible province-wide public consultations. He has held at least some events to which the media wasn’t invited in some selected centres.

6.         Since last winter we have called on the Human Rights Commission, the Human Rights Tribunal, the Human Rights Legal Support Centre and the Attorney General to hold joint, open, accessible, province-wide consultations on Bill 107’s implementation. This would let the public give their input to all public officials implementing Bill 107 at the same time and place. It would save the public time and effort.

We’ve gotten informal word from each of these organizations that our proposal sounds like a good idea. Yet ten months after Bill 107 was passed, no joint consultation has been held. The McGuinty Government should not have proclaimed Bill 107 in force for next June before even holding such a consultation, much less before resolving the many important details that are still outstanding regarding its implementation.

7.         In discussions with the various government branches involved in implementing this bill, they seem to function largely like separate silos, with very different views on how Bill 107 will operate. Any consultations that they have held have been ad hoc and isolated from the other organizations with whom they should be working closely. Many important questions haven’t yet been answered.

8.         When the McGuinty Government was promoting Bill 107 last year during debates in the Legislature, it held out the expectation that under it, the Human Rights Commission would be “freed up” to bring forward its own public interest human rights cases before the Human Rights Tribunal, and to intervene at the Tribunal in cases that individuals bring forward. Since then, we have gotten no reliable assurance that the Human Rights Commission will have the budget or the intent of extensively using those limited powers. What little we’ve heard gives serious cause for concern that the Human Rights Commission will use its limited, reduced litigation powers quite infrequently.

9.         While still working under the pre-Bill 107 Human Rights Code, the Ontario Human Rights Commission announced earlier in 2007 that it was implementing a new, streamlined procedure to speed up its processing of its backlog. While such efforts are commendable, it is regrettable that this didn’t happen before Bill 107 was passed. A major motivation for Bill 107 was the Human Rights Commission’s backlog, and the delay in getting human rights cases resolved. Had that backlog been cleared up, the case for Bill 107 would have been even weaker.

Last year, before Bill 107 was passed, several community groups, including the AODA Alliance, urged the McGuinty Government to reform the Human Rights Commission before taking drastic steps like Bill 107. The McGuinty Government refused. To see the blueprint for reform that was proposed to the McGuinty Government, and which the McGuinty Government dismissed out of hand, visit:

http://www.aodaalliance.org/reform/update-110606.asp

REFLECTIONS

This all further shows that Bill 107 will make things worse for Ontarians with disabilities. We had hoped that accessibility standards made under the Accessibility for Ontarians with Disabilities Act would reduce the need to fight human rights cases, one barrier at a time. Yet so far, the McGuinty Government’s weak accessibility standards made or proposed under the AODA, will end up forcing persons with disabilities to keep resorting to the Human Rights Code to enforce their rights, one barrier at a time.

For example, the Human Rights Tribunal recently ruled that the Toronto Transit Commission must have its bus and street car drivers announce all route stops for the benefit of blind and vision impaired passengers. It gave TTC 30 days to start doing this. The McGuinty Government’s proposed Transportation Accessibility Standard would give other Ontario transit authorities an excessive 18 years’ delay until they have to start making similar announcements.

This means that Ontarians with disabilities must consider filing human rights complaints against each and every municipal transit authority to get the same rights as have been won in Toronto. Yet under Bill 107, persons with disabilities will no longer be able to file their complaint with the Human Rights Commission, and have the right to get their case publicly investigated, and where merited, publicly prosecuted. Instead, persons with disabilities will have to hire their own lawyers and investigate and prosecute their own cases, unless they are one of the lucky ones whom the under-funded Human Rights Legal Support Centre chooses to represent.

This points out how unfair it was for the McGuinty Government to have reneged on its commitments regarding the Human Rights Commission during its negotiations with the disability community over the AODA. In the 2003 election, Dalton McGuinty promised effective enforcement in his new Disability Act. When we were negotiating the terms of the AODA after the McGuinty Liberals took power, the Government said we don’t need a new enforcement agency in the AODA, since the Human Rights Commission investigates and prosecutes disability discrimination complaints. Later, after we applauded passage of the AODA, the McGuinty Government brought forward Bill 107, which unfairly ripped out most of the Human Rights Commission’s teeth.

Stay tuned for practical suggestions on how you can raise these important developments in Ontario’s upcoming election. Please circulate this announcement to your friends and family.

Send us your feedback. Email us at:

aodafeedback@rogers.com