Our Campaign for Strong, Effective Implementation of the AODA

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ALLIANCE UPDATE

PLAN TO ATTEND AND RAISE IMPORTANT QUESTIONS AT NOVEMBER PUBLIC FORUMS AROUND ONTARIO ON LIFE UNDER BILL 107íS PRIVATIZATION OF HUMAN RIGHTS ENFORCEMENT IN ONTARIO

October 24, 2007

SUMMARY

On the verge of this fallís election campaign, the Ontario Government announced that in November, there will be a series of public forums around Ontario on the implementation of Bill 107. Bill 107 is the Ontario Governmentís widely-criticized legislation that privatizes human rights enforcement in Ontario. Bill 107 goes fully into force on June 30, 2008, thanks to the Ontario Government quietly proclaiming its start date on the eve of the recent Ontario election.

Starting last winter, the AODA Alliance had been urging the Ontario Government to hold open, accessible public consultations on Bill 107 with all the organizations that will be implementing it, namely the Ontario Human Rights Commission, the Ontario Human Rights Tribunal, the new Human Rights Legal Support Centre, and the Ontario Government itself. We felt it was important that individuals and community organizations be given a one-stop convenient opportunity to give their input to all these organizations at once on how this complex, controversial and unpopular bill will be implemented. The McGuinty Government had promised to consult with the public on its implementation. We were concerned that these separate ďpillarsĒ of the new human rights enforcement system not work as isolated silos. We needed early resolution of many major concerns that remained regarding Bill 107 and its impact on discrimination victims, including persons with disabilities.

At long last, our request has belatedly been acted on, at least to some extent. We urge you all to sign up for this event at the email address below. Urge others to do so as well.

Regrettably, these public forums come very late in the process of Bill 107ís implementation. There is a real risk that many if not most of the major decisions on Bill 107ís implementation have already quietly been made. It is not clear whether these public forums are intended primarily to gather our input, or just as efforts at public relations Ė i.e. to explain whatís already been decided on. It is also not indicated in the announcement whether the Ontario Government will be represented at these forums by senior officials such as the Attorney General, with authority to make important decisions. Given the need to address the inadequate funding of the human rights system, it would be critically important to be able to give input to the Attorney General or the Minister of Finance.

Below we set out:

We urge everyone to sign up to attend one of these forums and to ask questions about Bill 107ís implementation. In the Governmentís announcement, set out below, they give you the dates of the events around Ontario and they ask you to RSVP if you want to attend one of these forums. They gave an email address to write to. It appears that that person no longer works there. You may instead have to RSVP to: leonor.silva@ontario.ca or phone (416) 326-2520. We have no indication if there is a TTY number for those who wish to RSVP.

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QUESTIONS WE NEED ANSWERED REGARDING BILL 107íS IMPLEMENTATION

The McGuinty Government quietly decided on the eve of this fallís Ontario election to set next June 30, 208 as the date when Bill 107 will go into effect. Yet many of the contradictions and uncertainties about Bill 107 have not yet been addressed. We hope these public forums will enable us to at last get some specific answers.

Here are some important issues you may wish to raise at these forums. We hope the chair of the Human Rights Tribunal, the Chief Commissioner of the Ontario Human Rights Commission, the director of the Human Rights Legal Support Centre, and the Ontario Government will in their presentations provide detailed answers to these questions, without needing to be asked. These are issues we tried without success to raise when bill 107 was before the Legislature. These are issues of importance to all Ontarians concerned about human rights, whether they were supporters or opponents of Bill 107.

* FOR THE HUMAN RIGHTS LEGAL SUPPORT CENTRE:

The McGuinty Government promised during the 2007 public debate over Bill 107 that every discrimination victim would be assured free independent legal counsel to represent them at the Human Rights Tribunal under Bill 107. We have since learned from that Centre that they wonít be able to deliver on this promise. Some discrimination victims will be turned away due to the Centreís limited budget of $3,000,000 per year Ė a mere 25% of the recent annual budget that the back-logged, under-funded Human Rights Commission received.

How will the Human Rights Legal Support Centre decide which discrimination victims it will represent, and which it will turn away?

Will these decisions be made behind closed doors? Will the discrimination victim get a chance to present their concerns directly to those making this critically-important decision?

Who will make these decisions?

What procedures will be in place to protect against the Human Rights Legal Support Centreís politically-appointed board of directors using favouritism in deciding which discrimination victims to represent?

If turned away or denied full representation throughout the Tribunal proceedings, will the discrimination victim be given written reasons for this?

Will the discrimination victim have any avenue to appeal a decision by the Human Rights Legal Support Centre to refuse to provide them with full legal representation?

Expert witnesses can be very important to prove that discrimination took place, e.g. in disability discrimination cases. Expert witnesses can be very, very expensive. Under the old Human Rights Code, if an expert witness was needed to support the discrimination claim, the Human Rights Commission paid for the expert. Will the Human Rights Legal Support Centre pay for the costs of expert witnesses needed to prove the discrimination claim.

Previously the Human Rights Commission released an annual report that gave detailed statistics on how many cases it accepted and how many it turned away. Will the Human Rights Legal Support Centre make comparable information public, so we can see whether discrimination victims will be adequately served?

Under the old Human Rights Code, the Human Rights Commission sent legal counsel (i.e. lawyers) to the Human Rights Tribunal to present the discrimination claim. In those cases where the Human Rights Legal Support Centre agrees to represent discrimination victim at the Human Rights Tribunal, will the Human Rights Legal Support Centre send lawyers, or possibly non-lawyers, to present the case?

How many full time lawyers will the Human Rights Centre employ? Will they be paid at a lesser rate that Human Rights Commission lawyers are now paid?

Human rights cases can go on for many days. How many hearings lasting 10 days will the Human Rights Legal Support Centre be able to handle by sending legal counsel to represent the discrimination victim? 20 day hearings?

If a discrimination victim wins their case at the Human Rights Tribunal, and the discriminating party takes this to court, how often will the Legal Support Centre be able to represent the discrimination victim in court?

How many full-time lawyers will be on staff at the Human Rights Legal Support Centre to serve discrimination victims on June 30, 2008, when Bill 107 goes into operation?

What additional budget would the Human Rights Legal Support Centre need to be able to fulfill the McGuinty Governmentís 2006 commitment to ensure free independent legal counsel to all discrimination victims at the Human Rights Tribunal? To see examples of the Government making this commitment, visit: http://www.aodaalliance.org/reform/update-081806.asp

* FOR THE HUMAN RIGHTS TRIBUNAL:

The Human Rights Tribunal is considering what rules of procedure to adopt for cases that discrimination victims bring to the Tribunal for a hearing.

What procedures will the Tribunal establish to ensure that discrimination victims who donít have a lawyer can get a fair hearing, especially where the respondent (the organization accused of discrimination) has hired a lawyer?

The Tribunalís proposed interim rules place huge burdens on the parties to a hearing. To navigate and obey these rules, they will need the help of a lawyer to represent them. These include a duty to quickly present all the evidence they may present, and to disclose all relevant documents they have in their possession. If the Human Rights Legal Support Centre refuses to represent a discrimination victim, will the Tribunal have a process to order the Government to pay for a lawyer for the discrimination victim, especially if they cannot afford to hire their own lawyer?

Under Bill 107, the Tribunal will have the power to refuse to let a party to the case, including a discrimination victim, present evidence that is relevant and not unduly-repetitive. How will the Tribunal make sure that this is done fairly, so that the discrimination victim will be able to put forward their case as effectively as possible? How can the Tribunal know better than the discrimination victim what evidence they need to prove their case?

During public hearings on Bill 107, many equality-seeking groups opposed the Governmentís proposal that the Tribunal be able to charge discrimination victims user fees. Fortunately the Government dropped that clause. However, there remains the risk that under Bill 107, the Tribunal might force discrimination victims to pay legal costs of the organization they accuse of discrimination if the discrimination victim loses the case. The risk of an order to pay legal costs will deter many discrimination victims from bringing legitimate human rights complaints. Under the old Code, only the Human Rights Commission could be ordered to pay the legal costs of an organization charged with discrimination. What is the Tribunal going to do to ensure that discrimination victims arenít exposed to orders to pay legal costs of the person they accuse of discrimination?

* FOR THE ONTARIO HUMAN RIGHTS COMMISSION

During the 2006 public debates over Bill 107, the Ontario Government promised that the Human Rights Commission will be ďfreed upĒ to bring public interest systemic discrimination cases before the Human Rights Tribunal, and to intervene in cases at the Human Rights Tribunal that individuals will bring. Its resources wonít be drained by having to investigate and possibly to prosecute all discrimination complaints. If so, the Human Rights Commission could bring as many cases if not more cases to the Human Rights Tribunal as it did in the past.

How many cases will the Human Rights Commission plan to bring to the Human Rights Tribunal per year? At least as many as in the past?

In how many cases per year that individuals bring to the Human Rights tribunal will the Human rights Commission intervene in?

How will discrimination victims be able to bring their issues to the Human Rights Commission to ask the Commission to bring a public interest case, or to get the Commission to intervene in their individual cases?

Who within the Human Rights Commission will decide which cases they will bring or intervene in? What criteria will the Commission use?

Will the Commission make public the number of cases people ask it to bring, and how many the Commission turns away?

What will be the number of investigators and lawyers that the Commission plans to retain on its staff in order to investigate and present these cases at the Human Rights Tribunal?

Historically the Human Rights Commission has been seriously under-funded. We fear that under Bill 107, its budget is going to get further cuts to help find cash for the Human Rights Tribunal and the Human Rights Legal Support Centre. What budget does the Human Rights Commission require to properly do its job under Bill 107? What budget does the Commission anticipate receiving from the Ontario Government?

We have urged that the Human Rights Commission devote the substantial part of its resources to investigation of discrimination and to litigation of public interest cases. Only a small part of its budget and resources should be devoted to policy research and public education. We donít believe that leaflets, inspirational speeches and news releases from the Human Rights Commission will significantly remove barriers facing discrimination victims like persons with disabilities. What proportion of the Commissionís budget and staff does the Commission intend to apportion to investigation/litigation as opposed to policy research and public education?

What staff functions does the Commission anticipate terminating when Bill 107 goes into effect?

* FOR THE ONTARIO GOVERNMENT

What annual budget will the Human Rights Commission get under this new system?

What annual budget will the Human Rights Tribunal get under this new system?

* FOR ALL THE ORGANIZATIONS HOLDING THESE PUBLIC FORUMS

Under the old Human Rights Code, the Human Rights Commission got as many as 60,000 initial inquiries per year, mostly over the phone. Who is going to field those inquiries under the new system? What funding is to be provided to make sure that people donít just get long waits or busy signals over the phone?

What steps are being taken to make sure that the new Tribunal, the Human Rights Legal Support Centre and the Human Rights Commission remove and prevent barriers to accessibility for persons with disabilities so they can fully use these organizationsí services? What about barriers facing other discrimination victims e.g. those who donít speak one of Canadaís official languages?

Under the old Code, the Human Rights Commission had the job to enforce Tribunal orders. Bill 107 takes this away from the Commission. Who will have responsibility to enforce Tribunal orders in cases where the Tribunal decides that discrimination takes place, and where the guilty party doesnít obey the Tribunalís order?

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SAVE THE DATE FOR A HUMAN RIGHTS TRANSFORMATION FORUM

You are invited to attend a human rights transformation forum being held in one of five locations across Ontario this November.

Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission, Michael Gottheil, Chair of the Human Rights Tribunal of Ontario and Helena Birt, Transition Director for the new Human Rights Legal Support Centre will be in attendance at these forums to discuss the new roles of their organizations.

The forums will include:

Locations are currently being confirmed. Dates and locations are as follows:

Tuesday, November 6, 2007 3-5 p.m. - Ottawa

Thursday, November 8, 2007 3-5 p.m. - London

Friday, November 9, 2007 3-5 p.m. - Hamilton

Wednesday, November 14, 2007 3-5 p.m. - Thunder Bay

Friday, November 16, 2007 3-5 p.m. - Toronto/Scarborough

If you would like to attend, please send an e-mail including your name, organization (if applicable) and contact details to leonor.silva@ontario.ca or phone (416) 326-2520. This session is open to all.

If you require specific accommodations, please outline your requirements in your RSVP. The forums will be held at accessible locations and any written materials will be available in alternate formats. Forum updates and copies of the forum materials will also be posted on the Ministry website on an on-going basis.

HUMAN RIGHTS IN ONTARIO AND THE HUMAN RIGHTS CODE AMENDMENT ACT, 2006

Discrimination is against the law. The Human Rights Code protects the right of every Ontarian to equal treatment in employment, accommodation, contracts, goods, services, facilities and membership in vocational associations. The Code prohibits discrimination on the basis of race, sex, colour, and ancestry, place of origin, ethnic origin, creed, marital status, family status, sexual orientation, age, disability, or citizenship. The Ontario Human Rights Commission and the Human Rights Tribunal of Ontario enforce the Code.

The Commission was established in 1961, and is an independent agency, accountable to the legislature through the Attorney General. The Commission's functions have included conducting public education, policy development, investigating complaints, attempting settlements and bringing claims before the Tribunal for adjudication.

The Tribunal is a quasi-judicial, independent agency that adjudicates cases of discrimination, harassment and reprisal under the Code.

THE NEED FOR CHANGE

Ontario's human rights system was created in 1962. The system is often criticized for taking too long to resolve a complaint and for giving individuals too little control over their own cases. Calls for reform of the system began as long ago as 1990.

Currently, a discrimination complaint is filed with the Ontario Human Rights Commission. The Commission takes carriage of the case, investigates the complaint and determines whether the complaint should continue on to the Human Rights Tribunal of Ontario. If the case is referred to the Tribunal, many steps in the process may be repeated.

There has been too much duplication in the system and with an average of 2,500 discrimination claims filed per year, the backlog of cases has become overwhelming. It can often take years to resolve a claim.