Our Campaign for Strong, Effective Implementation of the AODA

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ALLIANCE UPDATE

SOME SERIOUS CONCERNS WITH HUMAN RIGHTS TRIBUNALíS PROPOSED NEW INTERIM RULES OF PROCEDURE

October 29, 2007

SUMMARY

The widely criticized Bill 107 gives the Human Rights Tribunal sweeping power to make new rules of procedure for handling the many discrimination cases that will go directly to the Tribunal under Bill 107ís privatization of human rights enforcement. Last year the AODA Alliance raised serious concerns about this sweeping power. Regrettably, the McGuinty Government disregarded those concerns.

The Human Rights Tribunal is now setting about using these new powers. As its first step, this past summer the Tribunal announced its intent to enact interim rules of procedure to govern the discrimination cases that come to the Tribunal during the next 18 months, as Ontario transitions to Bill 107ís new regime. It invited input on these rules over the summer weeks.

Unfortunately because of the Tribunalís timing, the AODA Alliance wasnít able to work on this issue before the Tribunalís deadline. We are a volunteer grass-roots coalition. We have been over-loaded with preparing for the election campaign and responding to the Governmentís flawed Customer Service Accessibility Standard and proposed Transportation Accessibility Standard.

Speaking on his own behalf and as an individual, David Lepofsky, former Ontarians with Disabilities Act Committee chair and active member of the AODA Alliance, was able to prepare and submit his own brief on the Tribunalís proposed interim rules of procedure. He has let us circulate his brief. See below (about 9 pages).

This brief raises some serious concerns about the proposed new tribunal rules. This is especially troubling because these proposed interim rules clearly foreshadow what the Tribunal may plan to do in its permanent rules, to be developed over the next months.

We very much regret that the Human Rights Tribunal didnít conduct a full and accessible public consultation on these proposed interim rules. You will also see that David Lepofsky urged the Tribunal to extend the time for the public to give input into these proposed rules. We are unaware of any response on this issue from the Tribunal.

The Tribunalís troubling process for developing and consulting on these rules comes on the heels of the McGuinty Governmentís closure motion last year, that cancelled the ongoing public hearing son the controversial Bill 107 that the Government had promised, advertised and scheduled. Given that sad legacy, the Tribunal should have taken better action to conduct an open, accessible public consultation on these proposed interim rules of procedure, at a time that could accommodate community groups and discrimination victims for whom the Human Rights Code is so important.

Send us your feedback at:
aodafeedback@rogers.com

To see the Tribunalís proposed interim rules, visit:
http://www.hrto.ca/english/about/consultation.asp

For lots of background on Bill 107, visit:
http://www.aodaalliance.org/reform/default.asp

*****

Human Rights Tribunal of Ontario
Public Consultation Ė Interim Rules
Attn: James Schneider
400 University Avenue, 7th Floor
Toronto, Ontario
M7A 1T7

Via Email to: James.Schneider@ontario.ca

From: David Lepofsky, CM
Date: September 17, 2007
Re: Human Rights Tribunal Consultation on Interim rules of Procedure

1. General

I write in my personal capacity, to give my input on your Tribunalís proposed amendments to the rules of procedure of the Human Rights Tribunal of Ontario. These amendments would govern Tribunal hearings in human rights cases during the period pending Bill 107 coming fully on line after June 30, 2007. I am making this submission as a private individual, not on behalf of any organization.

I summarize my position in this submission as follows:

1) There is a pressing need for the Tribunal to extend its deadline for getting input on its proposed rules changes, and for the Tribunal to more fully explain to the public the reasons for the proposed changes, and the options available for attaining the Tribunalís goals.

2) The proposed rules need far stronger provisions to ensure compliance with them.

3) The proposed rules improperly take away from the parties to a Tribunal hearing fundamental protections needed to ensure a fair hearing.

4) The proposed rules donít include any measures to make Human Rights Tribunals more disability accessible, or to remove disability barriers to the Tribunal.

5) The proposed rules unfairly in effect require a complainant to hire a lawyer, especially if he or she may take a position diverging from that of the Human Rights Commission on any issue at the hearing. This results from new, potentially excessive procedural burdens the proposed rules impose on complainants, that can constitute a barrier to access to justice.

6) The proposed new procedural burdens on the Human Rights Commission may unfairly make it harder for the under-funded Human Rights Commission to clear its back-log of cases filed before Bill 107 comes on line.

7) The rules impose an unfair and potentially intrusive duty to identify anyone potentially affected by a Tribunal proceeding.

8) The proposed rules should be amended to have the same Tribunal member make all rulings on a case wherever possible.

I hope my background in human rights issues provides a sufficient foundation for me to give you helpful feedback on the proposed new rules that your Tribunal is considering. I have been involved in human rights issues, with a special emphasis on disability issues, for some 30 years.

I took active part in the effort that succeeded in getting protection against disability discrimination added to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms in 1982. I have appeared before the Human Rights Tribunal, both as counsel for the Ontario Human Rights Commission and as a complainant. Iíve been extensively involved in educating judges, tribunals, lawyers, government officials and the public on human rights issues in Ontario, across Canada, and elsewhere. Law journal articles Iíve written on human rights issues have been cited with approval by your Tribunal, and by all levels of Canadian courts, including the Supreme Court of Canada.

I have served as the Human Rights Reform Representative of the Accessibility for Ontarians with Disabilities Act Alliance, during last yearís extensive public debates over the controversial and widely-criticized Bill 107. For a decade I also served as co-chair and later as chair of the Ontarians with Disabilities Act Committee. We spear-headed the disability communityís campaign leading to the enactment of the Ontarians with Disabilities Act, 2001 and the Accessibility for Ontarians with Disabilities Act, 2005. Both of these laws are aimed at more effectively implementing the guarantees that the Ontario Human Rights Code provides for people with disabilities.

2.

It is very important that your Tribunal extend the period for the public to give input into its proposed amendments to the Tribunal rules. Your proposed rules amendments are important to anyone affected by the Human Rights Code. Many donít know your rules consultation is now under way.

While these proposed amendments will directly affect all discrimination victims, not just persons with disabilities, I focus here particularly on the needs of Ontarioís disability community as I see them. The disability community has been deeply involved in, and for many, quite concerned about Bill 107. As you know, many disability organizations (as well as many other community groups concerned about preventing discrimination) spoke out against Bill 107, but had their opportunity for input at last yearís public hearings on that bill cut short by the Governmentís closure motion, which cancelled those hearings.

Right now, and over the past several weeks, many concerned with disability accessibility issues are deeply involved in and tied up with two important issues:

1) Raising serious concerns with the Governmentís proposed new Transportation Accessibility Standard under the AODA. See: http://www.aodaalliance.org/strong-effective-aoda/08132007- Support-BriefOnProposedTransportationAccessibilityStandard.asp

2) Raising disability issues, including serious concerns with Bill 107, in the current Ontario election. See: http://www.aodaalliance.org/strong-effective-aoda/default.asp

In the case of the proposed AODA Transportation Accessibility Standard, the Ontario Government set a public consultation period to run primarily over the summer months. Many from the community, including from the disability community, raised serious concerns that this is a problematic time period for developing and giving input on a public policy matter. As a result, the Ontario Government recently extended the period for public input on it. See: http://www.aodaalliance.org/strong-effective-aoda/08282007- GovernmentExtendsTime-FeedbackOnProposedStandard.asp

The Human Rights Tribunal should also extend its period for public input for the same reasons. I am confident that far fewer even know about your consultation than knew about the Governmentís Transportation Standard consultation.

It is not sufficient to rush ahead with the Tribunalís proposed changes, on the grounds that they are mere interim measures. In reality, the changes to the rules that the Tribunal is contemplating are more than just interim measures. They appear to reflect the dramatic change of direction the Tribunal is contemplating for its permanent rules. If adopted now, they will no doubt later confront us as a fait accompli.

I am rushing to assemble my own thoughts, to get this submission to you by your current deadline. I would welcome the chance to further reflect on these matters, and for the broader community to be able to share their views as well. This submission does not have the benefit of the time I would want to ensure its sufficiency and comprehensiveness.

I would, for example, expect that the Accessibility for Ontarians with Disabilities Act Alliance would be interested in giving its input. The AODA Alliance has been so swamped with the pressing issues listed above that its volunteers havenít had the chance to turn needed attention to your proposed interim rules.

I understand that on the eve of the Ontario election, the Government has announced a series of province-wide meetings with the public later this fall, to be held jointly between the Human Rights Tribunal, the Ontario Human Rights Commission, and the to-be-established Human Rights Legal Support Centre. As you know, I and the AODA Alliance have been asking for public forums to be jointly held by these three public agencies for several months Ė since the spring, at least. Among other things, those meetings would provide a good opportunity to get input on your proposed new rules.

It is especially important for the Tribunal to proceed as I propose for two additional reasons. As you know, many were critical of the Government for cutting off public hearings on Bill 107 last year. Moreover, during the current election campaign, two of the three parties have committed to repeal Bill 107. In those circumstances, it would be preferable for the Tribunal not to act precipitously before the next Government takes power.

In an effective consultation, the Tribunal should provide the public with an informative explanation of the proposed changes, the issues they aim to address, and the options for achieving the Tribunalís goals. This would better enable the public to give meaningful input.

3. Proposed Rules Not Effectively Enforceable

The proposed amendments place a series of new demands on parties to a Human Rights Tribunal hearing. Some can be helpful. However, it would be unrealistic to expect that all parties will voluntarily comply with them. If a complainant complies with them and a respondent does not, there is, for the most part, no practical consequence. An effective and timely means for enforcing them is needed. This includes real and substantial consequences for non-compliance. The proposed amendments seem significantly deficient in this regard.

One of the only specific enforcement rules may pertain to disclosure obligations. It provides that if a party fails to disclose a fact or document that they are required to disclose, they cannot rely on that fact or document at the hearing. The draft rules state:

41. No party will be entitled to rely on any facts or introduce any documents that were not disclosed or produced in accordance with these Interim Rules without leave of the Tribunal.

This provides completely inadequate protection. What is the greatest cause for concern is where a party fails to disclose a document that hurts their case. This causes the most damage to the opposing party. To tell a party that they cannot rely on a document that would hurt their case is little incentive to make that party fulfill their disclosure obligation.

I have had this experience. In Lepofsky v. TTC #1, for example, on the very morning when I was to face TTCís only witness, TTC dumped on my desk four or more inches of new documents, none provided in an accessible alternate format. TTC had been obliged to disclose these as much as a year earlier. No credible excuse was given for their delay.

I had to confront the cruel choice of either proceeding without a chance to review these documents, or seeking an adjournment. An adjournment would have prejudiced the prompt remedy I was seeking. To proceed without even having a chance to read the documents is obviously unfair. This cruel irony was especially telling in a case where blindness accommodation was the live issue.

I opted to proceed with the hearing. Fortunately, I won the case. However, that is no consolation for the long term disclosure problem.

I am most worried about a respondentís failure to disclose documents that hurt their case. Respondents have a natural desire not to disclose such documents. The only penalty provided in your proposed rules is no penalty at all. The respondent would be delighted for the Tribunal not to see that document.

It is critical that your proposed rules be amended to impose prompt and serious consequences for contravention of key rules, such as disclosure obligations.

4. Rules Improperly Take Away Fundamental Procedural Rights From Parties To Human Rights Tribunal Hearing

The rules give the Tribunal the power to override important procedural protections guaranteed to parties in the Statutory Powers Procedure Act (SPPA). For a hearing to be fair, the parties to the hearing must enjoy certain basic, inalienable rights. The SPPA guarantees procedures for this purpose, including the right of a party to call relevant, non-repetitious evidence. In contrast, the proposed rules state:

ď4. In exercising its powers and authority to hear and decide a Complaint in a manner that is fair, just and expeditious, the Tribunal may:Ö

(a) determine the order of issues and evidence in a hearing;
(b) define and narrow the issues to dispose of a Complaint;
(c) limit evidence and submissions on an issue;
(d) question a witness in direct or cross examination;ÖĒ

This provision dramatically transforms the Human Rights Tribunal into an inquisitorial Tribunal, i.e. one where the Tribunal departs from its historic role by taking over deciding what relevant evidence is called, and whether and when it is called. It even lets the Tribunal take over the role of calling evidence itself. That is the job of the parties to the hearing, not the Tribunal, except in very exceptional circumstances.

This is especially troubling, because no doubt we will be told, when a similar rule finds its way into the permanent rules, that this is already a ďdone deal.Ē It is critical that a full, vigorous public consultation must precede any such drastic rule changes.

Concerns about overriding the SPPAís important procedural protections were an important part of the major public criticisms of Bill 107. It was a serious concern that such changes could be slipped through at all, much less without proper public input. We were told when we raised those concerns that the Tribunal wouldnít make any such rules without holding a proper public consultation.

My concerns expressed earlier regarding the need to extend your consultation period are especially pressing here. That debate was unfairly cut short, and the Legislatureís clause-by-clause debate over the Billís provisions on point was also cut short by the Governmentís closure motion -- a closure motion which was even condemned by Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission (a supporter of Bill 107).

It is fundamentally inappropriate, in such interim rules, for the Tribunal to give itself the power to limit the fundamental right of any party to call otherwise relevant evidence. Under the Statutory Powers Procedure Act, the Tribunal has the power to limit evidence which is unduly repetitious or irrelevant. If the evidence is relevant to an issue in dispute, and is not unduly repetitious, it is unwarranted for the Tribunal to exclude that evidence.

Well before contemplating making such a rule, the Tribunal should make public its reason for wanting to give itself such potentially draconian power. It should show the public why this is needed. It should indicate with examples from its own past cases why it is insufficient to have the power to rule out evidence that is either irrelevant, or unduly repetitious or both.

The Tribunalís announcement says: ďThe Interim Rules are designed to establish a fair, just and expeditious process for referred complaints, while enhancing the Tribunalís capacity to accommodate an increase in the number of complaints sent to the Tribunal during this interim period as a result of the Commissionís recently announced Enhanced Complaint Process.Ē

With respect, the right to a fair hearing, including the right to call relevant evidence that isnít unduly repetitious, shouldnít be overridden to cope with a perceived or expected increase in the Tribunalís case load. The proper solution is to ask the Government for sufficient funding to enable the Tribunal to give the promised timely hearings in all cases coming before the Tribunal.

If such potentially draconian powers are to be put in the rules, this should at the very least await the final permanent rules. They shouldnít be injected into fast-tracked interim rules, to be finalized while the attention of so many is tied up with a provincial election .

Moreover, even if such potentially objectionable powers were given to the Tribunal (despite these objections), they should not be as open-ended as the proposed rules would have it. The rules should articulate clear, specific legal criteria to govern and constrain the situations when, for example, the Tribunal would deny a party the right to call relevant evidence that isnít unduly repetitious, or for when the Tribunal should take it upon itself to call witnesses and examine or cross-examine them.

It is not enough for the rules to vaguely say that the Tribunal is to use its powers ďin a manner that will, in its opinion, facilitate the fair, just and expeditious resolution of the merits of a Complaint.Ē No doubt each Tribunal member would say that their decisions and rulings have always been directed at this aim.

This is even more important, since Bill 107 substantially reduces judicial oversight of the Tribunal. It repealed partiesí right of appeal, and replaced it with the narrowest possible scope for judicial review applications.

5. No Provisions to Make Human Rights Tribunal Proceedings More Disability-Accessible

I am very concerned that these proposed rules do not include any effort by the Tribunal to make its processes barrier-free for persons with disabilities. There is, for example, no procedure for persons with disabilities who are parties to a Tribunal proceeding to seek and receive timely accommodation from the Tribunal itself. As the Tribunal knows, a comprehensive report on how to make courts disability-accessible is available at: http://www.ontariocourts.on.ca/court_of_appeal/ reports/accessiblecourts.htm

For example, the proposed rules provide that a party, such as a complainant, can lose any right to take part in further proceedings, if the Tribunal sent the party written notification of a Tribunal conference call, and the party didnít take part in the call. The proposed rules state:

ď18. Where the Tribunal has delivered a Notice of Initial Conference Call to a party at the address provided by the Commission, and the party fails to attend the Initial Conference Call and fails to otherwise contact the Tribunal, the Commission must, within 10 days of the Initial Conference Call:
(a) advise the Tribunal in writing, copied to the other parties, as to how it proposes to proceed; and
(b) provide the Tribunal with information in respect of its efforts to locate a current address for the absent party.

19. The Tribunal will provide the parties with a Notice of Pre-Hearing and Mediation Conference setting out the time, place and purpose of the Conference.

20. Where the Tribunal delivers a Notice of Pre-Hearing and Mediation Conference to a party and the party fails to attend, the Tribunal may proceed in their absence and the party is not entitled to any further notice of the proceedings.Ē

The rules donít require the Tribunal to ensure that this poses no barrier before resorting to print notification, and before taking the drastic step of taking away from the party the right to any further notice. The rules donít require the Tribunal to provide this written notice in an accessible alternate format for parties who, because of disability, cannot read print. The rules donít require the Tribunal to notify parties of the availability of such disability accommodations. This is especially troubling for a Tribunal with a mandate to rule on human rights cases.

6. Potentially Unfair Burdens on Complainant

The draft rules impose potentially unfair new procedural burdens on a complainant, who may wish to take a position at the hearing that diverges to some degree from that of the Tribunal. To comply with these burdens, a complainant would in effect need to have a lawyer. Most persons with disabilities cannot afford to hire a lawyer for this purpose. The proposed rules state:

ď32. The Complainant may rely on the Hearing Brief filed by the Commission under these Interim Rules. However, if the Complainant intends to rely on additional facts, documents or witnesses, or intends to seek different orders or remedies, the Complainant must, no later than 30 days after the date of the Pre-Hearing and Mediation Conference, serve on the other parties, and file with the Tribunal, a complete Hearing Brief that shall include the following:

(a) a statement setting out the facts in the Commissionís Hearing Brief with which the Complainant disagrees and any additional facts that the Complainant intends to rely upon;
(b) a document book containing a copy of any documents not already included in the Commissionís document book upon which the Complainant intends to rely;
(c) a list of any witnesses not already identified by the Commission and a brief summary of their intended evidence;
(d) an estimate of the number of additional hearing days, if any, required to present the Complainantís case;
(e) a description of any remedies sought by the Complainant that are different from or in addition to those requested by the Commission; and
(f) a statement of service (Form 1, Rules of Practice) verifying service of the Complainantís Hearing Brief on the Commission and the responding party or parties .Ē

This appears to clearly foreshadow the new and onerous burdens on complainants that the Tribunal is now contemplating under its permanent rules, once Bill 107 removes the Human Rights Commission as public investigator and public prosecutor when individuals lodge human rights complaints. Unrepresented complainants may not be able to foresee, at an early stage in the Tribunalís process, whether they will take a view different from that of the Commission at the hearing. Moreover, unrepresented complainants will likely have serious difficulties shouldering this formalized procedural burden.

It doesnít appear that the Human Rights Legal Support Centre will be in a position to assist complainants during most, if not all of this transition period. Moreover, that Centre cannot and will not be assuring the promised full legal representation to all discrimination victims. It will be a new gate-keeper, picking and choosing which clients it will represent and how much support it will give them.

As such, this proposed rule should be amended to substantially reduce the burdens on complainants, lest it become a significant barrier to their access to human rights protection. The new burden and barriers to access that this proposed rule contemplates, flies in the face of the stated goals for Bill 107, namely making access to human rights protection quicker, easier and less burdensome for discrimination victims.

7. New Burdens on Human Rights Commission

The proposed rules impose a series of new burdens on the Human Rights Commission when it prosecutes a discrimination case. The Commission remains seriously under-funded. No new funding for it has been announced. If the Commission couldnít handle its backlog under the previous regime and rules, it is difficult to see how the Commission will handle its new procedural burdens under the proposed new rules. If the Commission cannot do so, this will force more and more discrimination victims now in the system, to have to start all over again under Bill 107ís privatized human rights enforcement system, i.e. if the Human Rights Commission cannot move their case forward during the transition period. That is unfair to those who brought their cases forward before Bill 107, and who want their cases publicly prosecuted, not left to privatized enforcement.

Before these proposed new rules impose those burdens on the Human Rights Commission, there needs to be a public showing that the Human Rights Commission will be given the resources needed to be able to comply with them, without creating even more backlog.

8. Unfair Duty to Identify Persons who ďMay Be Affected by the ProceedingĒ

At points the draft rules require parties to identify for the Tribunal persons who ďmay be affected by the ProceedingĒ This is a potentially sweeping and burdensome obligation.

In my TTC case, would I be obliged to notify the Tribunal of every blind person I know who may live in or near Toronto? Everyone I know, who otherwise might want subway or bus stops announced? Every bus and street car driver I might know? If I donít provide their names, addresses and contact information, may I be accused by the respondent of violating the Tribunal rules? Moreover, what protection is there for the privacy of such uninvolved individuals who may not want their names and addresses circulated?

This proposed rule should be dramatically limited or eliminated. If not, it would be appropriate to narrowly define what is covered by ďmay be affected,Ē so as to avoid an unintended or excessive burden on the parties. It would also be necessary to create a strong privacy protection where needed.

10. Need for One Tribunal Member to Be Assigned Throughout a Case Where Possible

The proposed rules let one Tribunal member make rulings on a caseís preliminary issues, and then let another Tribunal member preside at the hearing itself. It is far better, and more efficient, if the same Tribunal member carries through with all rulings on a case. This helps maximize predictability and consistency throughout a proceeding.

Despite the best efforts of Tribunal members to be consistent with the earlier rulings of other Tribunal members, there is no substitute for having the same Tribunal member deal with a case from beginning to end. To impose on the parties a burden to re-explain a file to two or more Tribunal members only imposes more costs and time burdens on the parties. Of course an exception to my proposal must be made where a Tribunal member serves as a mediator.