ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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UNITED FOR A BARRIER-FREE ONTARIO

PLEASE ENDORSE THE AODA ALLIANCE'S REQUEST OF THE HUMAN RIGHTS TRIBUNAL, HUMAN RIGHTS COMMISSION AND HUMAN RIGHTS LEGAL SUPPORT CENTRE TO DISCLOSE DETAILS ON ENFORCEMENT OF HUMAN RIGHTS IN ONTARIO

November 14, 2011

SUMMARY

We have just written the three major public agencies responsible for the enforcement of human rights in Ontario. We asked each for detailed information and statistics on the way human rights are being enforced now in Ontario. We need this information to help us prepare our input into an Independent Review that the Ontario Government has appointed to appraise how effectively Ontario's human rights legislation is serving victims of discrimination. Ontario's Human Rights Code bans discrimination on grounds like disability, race and sex. It is an important underpinning of the Accessibility for Ontarians with Disabilities Act.

We encourage you and any organization with which you are linked to also write these public agencies. Endorse our request for this information. Indicate if you believe this information should be shared with us and the public. We provide contact information for them below. If you need more information from these human rights agencies than the details we have requested, ask them for the added information you want.

            MORE DETAILS

1. Background to the New Independent Review of the Human Rights Enforcement System in Ontario

How human rights are enforced is a very important subject for us. The AODA is meant to implement rights we enjoy under the Human Rights Code without having to fight barriers one at a time by human rights complaints. However, because the accessibility standards enacted under the AODA do not in many ways go as far as does the Human Rights Code, we still need a prompt, effective way to enforce our rights under the Human Rights Code.

In 2006, over the objection of the AODA Alliance and many others in the disability community and other equality-seeking communities, the McGuinty Government passed Bill 107. It privatized the enforcement of human rights in Ontario. It stripped from discrimination victims their decades-old fundamental right to have their non-frivolous human rights complaints publicly investigated, and publicly prosecuted by the Ontario Human Rights Commission where the evidence warrants it.

In that year, the Government unfairly blocked us from being able to present our concerns at public hearings on that bill before a Standing Committee of the Legislature that were promised, scheduled and advertised. The McGuinty Government used its majority to invoke closure to shut down those hearings, as criticism of Bill 107 was mounting. See http://www.aodaalliance.org/reform/update-112006.asp 

In 2006, the McGuinty Government voted down the vast majority of amendments to Bill 107 that we sought, and that the opposition Conservatives and NDP commendably proposed on our behalf. To learn more about the controversial history of that issue, visit http://www.aodaalliance.org/reform/default.asp

One of the few amendments we won in 2006 in the Bill 107 debate was a requirement that there be a strengthened Independent Review of Bill 107 after it had been in operation for four years. We wanted this review to test whether this legislation lived up to the commitments that the Government made for Bill 107. You can see those 10 commitments at http://www.aodaalliance.org/strong-effective-aoda/07022008.asp

This past summer, the McGuinty Government appointed Toronto lawyer Andrew Pinto to conduct this Independent Review of Bill 107. That appointment is itself very controversial. Back in 2006, Mr. Pinto was among the small group of lawyers who spearheaded the campaign to get Bill 107 enacted. He vigourously opposed the position o f the AODA Alliance in the Bill 107 debates of 2006. For more on this controversy, visit http://www.aodaalliance.org/strong-effective-aoda/08292011.asp

2. What Information We Seek from these Three Human Rights Agencies

We want to prepare our submission to this Independent Review of Bill 107. To help us prepare, we have just written the Ontario Human Rights Commission, the Ontario Human Rights Tribunal, and the Ontario Human Rights Legal Support Centre. They are the three agencies charged with responsibility for implementing Bill 107.

Below we set out the emails we sent to these public agencies. Our emails to each ask them to disclose detailed data on their activities in Ontario's human rights system since June 30, 2008. The extensive information we seek is all information that the Bill 107 Independent Review will itself need. As well, other individuals and organizations will benefit from this information when preparing their own presentations to this Independent Review. For these human rights agencies to provide this information is a core part of being open, transparent and accountable.

To summarize, key information we seek includes, for example:

1. How large is the caseload backlog in Ontario's human rights enforcement system, and how has Bill 107 affected the size of this backlog?

2. How many human rights complainants/applicants are being provided legal representation by the Human Rights Legal Support Centre when taking their case to the Human Rights Tribunal? How many are unrepresented during proceedings at the human Rights Tribunal?

3. How many discrimination victims is the Human Rights Legal Support Centre serving, and how many are being turned away or not getting through? For a newspaper report on the high number of callers not even getting through to the Human Rights Legal Support Centre, visit http://www.aodaalliance.org/strong-effective-aoda/05292010.asp

4. How long does it take to get a case decided at the Human Rights Tribunal?

5. How many human rights complainants/applicants are getting a full hearing on their case's merits at the Human Rights Tribunal?

6. What cases has the Human Rights Commission brought forward to the Tribunal, or intervened in at the Tribunal, since Bill 107 took away its lead responsibility for investigating and publicly prosecuting human rights cases?

7. Did Bill 107 strengthen or weaken the Human Rights Commission as an effective agency for combating discrimination in Ontario?

8. What happened to the many cases that were in the Human Rights Commission's backlog when Bill 107 took effect? 

9. Now that the Human Rights Commission has been removed from the vast majority of cases before the Human Rights Tribunal, how often are "public interest remedies" being ordered by the Tribunal, or included in case settlements, to systemically prevent future discrimination? The Human Rights Commission used to have lead responsibility for trying to get public interest remedies in human rights cases, like orders requiring an organization to adopt a human rights policy, to undertake human rights training and to take other steps to prevent future human rights violations.

3. How You Can Help

Please add your voice to ours! Contact the Ontario Human Rights Tribunal, the Ontario Human Rights Commission, and the Ontario Human Rights Legal Support Centre. Urge them to fulfill our requests for information. Let them know if you think the public is entitled to know the answers to our questions set out in our requests of them. Add your own requests for any other information that you feel should be disclosed to help you and the public prepare your presentations to the Independent Review on Bill 107.

Here are links to their contact information, in addition to what is set out in our letters to each, below:

For the Ontario Human Rights Legal Support Centre: http://www.hrlsc.on.ca/en/contact.htm

For the Ontario Human Rights Tribunal: hrto.tdpo@ontario.ca

For the Ontario Human Rights Commission: http://www.ohrc.on.ca/en/sec/contact/

As always, we welcome your feedback. Email us at: aodafeedback@gmail.com

            ****

Via Email        David.A.Wright@ontario.ca

 

To:  David Wright, Acting Chair, Human Rights Tribunal of Ontario

From:  David Lepofsky Chair Accessibility for Ontarians with Disabilities Act Alliance

Date:  November 14, 2011

Re:  Independent Review of Ontario Human Rights Enforcement Process 

 

I am writing on behalf of the Accessibility for Ontarians with Disabilities Act Alliance. We are a non-partisan community coalition united to achieve a barrier-free Ontario for all persons with disabilities. 

We are preparing our submissions to the Independent Review of Ontario's Human Rights Enforcement system. This Independent Review is required under section 57 of Bill 107.

We are asking you for information that will be essential to assist in the preparation of our submission. This information will also be important to the Independent Review itself, and to other individuals and organizations who are preparing submissions to that Independent Review.

We would appreciate receiving this information as soon as practicable. If necessary, feel free to send us whatever you have when you have it, rather than waiting to send it until it is all assembled. Please let us know by when you can provide the information we request. Please also ensure that you provide the information in an accessible format. We would prefer if it is received in an MS Word document with no graphics. It is preferable for information to be presented as text, rather than in tables.

Please let me know if any of the information we are requesting is not capable of assembly by you. If it is not, please send us as much information that would be responsive to our request as is feasible.   

Our coalition took active part in the public debates over Bill 107 back in 2006 when the bill was before the Legislature. Regrettably, the McGuinty Government voted down most of the changes to that bill that we proposed. One of the only changes to Bill 107 that we won in 2006 was a strengthened requirement for this Independent Review. This Independent Review is needed to fairly, objectively and independently determine whether Bill 107 fulfilled the Government's commitments about it, or whether it has produced any of the difficulties that organizations such as ours forecast. 

For this Independent Review to be effective, the public must have access to detailed information on how Ontario's human rights enforcement system has worked since Bill 107 went into operation. It is that information which we now request.

We are especially interested in the number of human rights cases filed, resolved or adjudicated on the full merits before the Tribunal, and the extent to which complainants/applicants are represented by legal counsel, by non-lawyer-representatives,  or unrepresented. In the following questions, we would appreciate, where possible, a breakdown of the numbers of cases requested based on grounds of discrimination alleged e.g. how many involve race claims, how many involve disability claims, etc. 

1.         How many applications or complaints are now before the Tribunal in any form, at any stage of the proceedings? How many of these were filed under the old pre-Bill 107 Human Rights Code? Of these, in how many is the Human Rights Commission still actively involved as a party?

2.         Of those cases now before the Tribunal at any stage, in which the Human Rights Commission is not involved as a party, how many and what percentage of cases involve a complainant/applicant  who is unrepresented/ How many and what percentage of cases involve a complainant/applicant who  is represented by a lawyer acting as their legal counsel at Tribunal proceedings or other dealings (e.g. negotiations or mediations)? How many and what percentage of cases involve a complainant/applicant who is represented by a non-lawyer?

3.         Of those cases now before the Tribunal where the complainant/applicant is not represented by legal counsel, in how many and in what percentage of cases is the respondent represented by legal counsel?

4.         How many new human rights applications/complaints have been filed with the Tribunal since Bill 107 went into effect on June 30, 2008? (i.e. ones which were not previously filed with the Human Rights Commission under the old Human Rights Code). Of those applications filed since June 30, 2008, how many have been resolved and how many are still outstanding? Of those outstanding, how many have had a full hearing on the merits? We would appreciate this information being broken down:

a) on a per year basis since Bill 107 went into effect; and

b) in total since Bill 107 went into effect.

5.         We are interested in the time it takes for an application under Bill 107 to be resolved at the Tribunal.  Regarding applications that are withdrawn or settled or those that proceed to a hearing can you provide:

a) for those withdrawn, the average length of time between the filing of an application and the time the tribunal is notified that it has  been withdrawn;

b) for those cases that are settled, the average length of time between the filing of an application and the time of settlement;

c) for those cases that that proceed to a hearing before the Tribunal, the average length of time between the filing of the application and the time of the first day of the hearing, and to the date of the final decision. 

Note: We would appreciate this information on a per year basis since bill 107 went into effect, and on a total basis over the period since Bill 107 went into effect.

6.         Regarding the backlog at the Tribunal, we are interested in knowing how the Tribunal defines its backlog and how your Tribunal measures this Also, of those cases now before the Tribunal, unresolved, at any stage, what is the average time that cases have been before the Tribunal, unresolved.

7.         How many complainants who filed complaints with the Human Rights Commission under the old pre-Bill 107 Human Rights Code, opted between June 30, 2008 and December 31, 2008 to transfer their cases directly to the Tribunal under Bill 107ís transition provisions? Of these, in how many and what percentage of cases was the complainant not represented by a lawyer, acting as their legal counsel, in subsequent proceedings or dealings with the Tribunal (e.g. negotiations or mediations) before the Tribunal? Of those cases where the complainant was not represented by legal counsel, how many and what percentage were represented by non-lawyers? Of those cases where the complainant is not represented by legal counsel, in how many and in what percentage is the respondent represented by legal counsel?

8.         How many pre-Bill 107 cases which were still at some stage before the Human Rights Commission on December 31, 2008, re-initiated their cases before the Tribunal since January 1, 2009, without the Human Rights Commission as a party? Of these, in how many, and what percentage, has the complainant been represented by a lawyer acting as their legal counsel in proceedings of or dealings with the Tribunal (including, e.g. mediation or negotiation)? Of those cases where the complainant was not represented by a lawyer, in how many and what percentage was the complainant represented by a non-lawyer? Of those cases where the complainant is not represented by legal counsel, in how many and in what percentage is the respondent represented by legal counsel?

9.         In how many cases brought before the Tribunal since June 30, 2008, (whether as new applications under Bill 107ís new regime, or as cases opting to transfer away from the Human Rights Commission under the Tribunal's Transition Rules between June 30, 2008 and December 31, 2008, or as re-initiated applications before the Tribunal since January 1, 2009) has the Human Rights Commission applied to intervene as an intervener? In what percentage of these did the Tribunal permit the intervention?

10.       How many Commission-initiated complaints are now before the Tribunal at any stage? Of these, how many and what percentage were launched under the old Code before June 30, 2008, and how many and what percentage were launched under Bill 107 since June 30, 2008?

11.       In how many and what percentage of cases settled before the Tribunal since June 30, 2008, and in which the Human Rights Commission was not taking part, were public interest remedies included as part of the terms of resolution? We would appreciate this information being broken down:

a) on a per year basis since Bill 107 went into effect; and

b) in total since bill 107 went into effect.

12.       How many cases have gotten a hearing before the Tribunal of any sort, whether on the merits or on procedural issues, since June 30, 2008, in which the Human Rights Commission took no part? Of these, in how many were public interest remedies requested? Of those, in how many were public interest remedies ordered by the Tribunal? We would appreciate this information being broken down:

a) on a per year basis since Bill 107 went into effect; and

b) in total since Bill 107 took effect.

13.       Does the Tribunal keep track of statistics on the nature and kind of public interest remedies obtained through settlements or Tribunal orders at the end of a contested hearing? For example, can the tribunal provide a breakdown of the number of applications that resulted in orders or settlements that involved requirements that an organization undertake human rights training, some form of monitoring of compliance, the creation of anti-discrimination policies, etc.

14.       What number and percentage of applications before the Tribunal under Bill 107 have been resolved without a full hearing on the merits:

a) per year

b) in total.

15.       In how many and what percentage of cases have applications been rejected or dismissed by the tribunal without a full hearing on the merits e.g. where a case is dismissed on procedural grounds?

a) per year

b) in total since Bill 107 went into effect.

16.       In how many cases has the Tribunal formally directed that legal representation be provided to a party in an application since Bill 107 went into effect:

a) per year

b) in total.

17.       Please provide the number of decisions rendered by the Tribunal for each year since Bill 107 went into effect. Can you indicate how many of those decisions were final decisions on the merits, and how many were interim decisions.  In addition, can you indicate the number of separate reconsideration decisions rendered.

18.       For final decisions rendered by the Tribunal since Bill 107 went into effect, can you please provide the length of time from the final date of the hearing to the release of the decision. For interim decisions, can you please provide the average length of time from the final date of the hearing or written argument on the interim issue to the release of the interim decision.

19.       Since June 30, 2008, in how many cases has the Tribunal exercised its Mandate to consider a policy approved by the Human Rights Commission as provided for in s. 44 of Bill 107? In what number and percentage of those cases did the Tribunal adopt or follow the human Rights Commission's policy? Please provide this information on

a) a per year basis

b) as a total for the entire period since Bill 107 went into effect.

20.       In how many cases and what percentage of cases where a hearing on the merits has been held has the Tribunal exercised it power to

a) refuse to allow a party to call a witness even though their evidence is relevant and not excluded by any rules of evidence.

b) ordered or restricted in any way or to any degree in advance how much time a witness may testify.

21.       Can we please have a copy of your most current organization chart, in an accessible format, and not as a PDF.

22.       How many full-time Tribunal chairs or vice-chairs now work for the Tribunal? In addition, how many full-time equivalents are comprised of part-time chairs or vice-chairs, having regard to the actual days they are working? In other words, what is the Tribunalís current full-time equivalent complement of hearing adjudicators?

23.       What number and percentage of Tribunal hearings and mediations are held outside Toronto:

a) per year; and

b) in total since Bill 107 went into effect.

24.       To what extent could the Tribunal proceedings benefit from more parties having legal representation at hearings and informal proceedings such as mediations?

25.       To what extent is the Tribunal tracking the data referred to above or comparable data?

26.       It is very important for community organizations like ours to see the submissions to this Independent Review that are submitted by the Tribunal, the Human Rights Commission, and the Human Rights Legal Support Centre. Indeed, we will need to see them well before we have to submit ours, and before we have the chance to present at public hearings. Will your Tribunal agree to provide us and the public with your submission to the Independent Review, at least ten weeks before the time for filing submissions, and any public hearings that the Independent Review holds?

As for all of our requests, if you cannot now make this information available, by when could it be made available? We don't know when the Independent Review will be holding public hearings or forums, or otherwise inviting input.

As a final matter, we want to let you know that we are asking the Independent Review to hold open, accessible public hearings or forums around Ontario, and to ensure that these are open to all, and not "invitation-only." We ask you to endorse our call for the Independent Review to hold these open, accessible public hearings.

Back in 2006, when Bill 107 was before the Legislature, the McGuinty Government promised that all interested people would get a chance to present their thoughts at public hearings on that bill. Despite this, after public criticism of Bill 107 was mounting at these hearings, the Government later invoked "closure" to cancel the further public hearings that had been promised, advertised and scheduled. It is thus especially important that all have their chance to have their say at this Independent Review.

Thank you in advance for your assistance. I would appreciate it if you could confirm that you received this email.

Yours sincerely,

David Lepofsky, Chair

Accessibility for Ontarians with Disabilities Act Alliance

cc:        Andrew Pinto apinto@pintowrayjames.com

            *****

Via Email        klaird@hrlsc.on.ca

 

To:  Kathy Laird, Executive Director, Human Rights Legal Support Centre of Ontario

From:  David Lepofsky, Chair Accessibility for Ontarians with Disabilities Act Alliance

Date:  November 14, 2011

Re:  Independent Review of Ontario Human Rights Enforcement Process 

I am writing on behalf of the Accessibility for Ontarians with Disabilities Act Alliance. We are a non-partisan community coalition united to achieve a barrier-free Ontario for all persons with disabilities. 

We are preparing our submissions to the Independent Review of Ontario's Human Rights Enforcement system. This Independent Review is required under section 57 of Bill 107.

We are asking you for information that will be essential to assist in the preparation of our submission. This information will also be important to the Independent Review itself, and to other individuals and organizations who are preparing submissions to that Independent Review.

We would appreciate receiving this information as soon as practicable. If necessary, feel free to send us whatever you have when you have it, rather than waiting to send it until it is all assembled. Please let us know by when you can provide the information we request. Please also ensure that you provide the information in an accessible format. We would prefer if it is received in an MS Word document with no graphics. It is preferable for information to be presented as text, rather than in tables.

Please let me know if any of the information we are requesting is not capable of assembly by you. If it is not, please send us as much information that would be responsive to our request as is feasible. 

Our coalition took active part in the public debates over Bill 107 back in 2006, when the bill was before the Legislature. Regrettably, the McGuinty Government voted down most of the changes to that bill that we proposed. One of the only changes to Bill 107 that we won in 2006 was a strengthened requirement for this Independent Review. This Independent Review is needed to fairly, objectively and independently determine whether Bill 107 fulfilled the Government's commitments about it, or whether it has produced any of the difficulties that organizations such as ours forecast. 

For this Independent Review to be effective, the public must have access to detailed information on how Ontario's human rights enforcement system has worked since Bill 107 went into operation. It is that information which we now request.

We are especially interested in the number of human rights cases filed, resolved or adjudicated on the full merits before the Tribunal, and the extent to which complainants/applicants are represented by legal counsel, by non-lawyer-representatives,  or unrepresented. In the following questions, we would appreciate, where possible, a breakdown of the numbers of cases requested based on grounds of discrimination alleged e.g. how many involve race claims, how many involve disability claims, etc. 

We would welcome the following information:

1.         How many telephone inquiries, fax inquiries, mail correspondence inquiries, e-mail inquiries, in-person inquiries, requests for assistance with drafting an application, and requests for representation, has the Human Rights Legal Support Centre received since June 30, 2008?

a) per year

b) in total since your organization began operations.

2.         For how many complainants/applicants has the Human Rights Legal Support Centre drafted their human rights application?

a) per year

b) in total since your organization began operations.

3.         How many complainants/applicants has the Human Rights Legal Support Centre advised on drafting their application, without agreeing to draft it for them?

a) per year

b) in total since your organization began operations.

4.         To how many complainants/applicants who have filed human rights applications under the Human Rights Code since June 30, 2008 has the Human Rights Legal Support Centre committed to provide full legal representation, by a lawyer acting as legal counsel, throughout the tribunal process from beginning to end?

a) per year

b) in total since your organization began operations.

5.         We understand that at least in some cases where your Centre agrees to provide legal representation in a case, you initially only commit to be retained for a part of the proceedings e.g. up to the mediation process, or to the end of the mediation process. In such a situation, the applicant/complainant would not know from the outset whether the Centre will leave them to represent themselves partway through the case before the Human Rights Tribunal.

a) In a case where the Centre does agree to provide legal representation to an applicant, to what extent is it the Centre's policy or practice to initially only commit to provide representation partway through the case, e.g. up through the mediation process?

b) If so, when does the applicant learn whether the Centre will continue to represent the applicant beyond that interim stage in the process at the Tribunal?

c) In how many cases and what percentage of cases, where the Human Rights Legal Support Centre has initially committed to some level of legal representation, has the Centre later decided not to carry through with continued representation through to the end of the case? Can you please break these down according to the reasons for the Centre ceasing to represent a complainant/ applicant partway through the proceeding.

6.         For how many potential complainants/applicants has the Human Rights Legal Support Centre decided not to provide legal representation at formal or informal proceedings of the Human Rights Tribunal, or to assist in drafting a human rights application, or not to represent further, due to a determination by the Centre that there was a lack of merit to their case?

a) per year

b) in total since your organization began operations.

7.         In those cases where your Centre decided not to provide legal representation or further assistance to a complainant/applicant due to the Centre's opinion that their claim lacked merit:

a) Who and at what level within the centre decided that the claim lacked merit?

b) Was the complainant/applicant given written reasons for this determination? 

c) What opportunity was provided for the complainant/applicant to present their concerns about this decision in person to the person or persons who made this final determination, before the decision was made? In what number and what percentage of cases where the Centre declined to represent a complainant/applicant or potential complainant/applicant did the complainant/ applicant in fact meet with the Centre employee who was making this decision? Or with any Centre employee?

d) What avenue for appeal of this determination within the Centre was provided?

e) By what process is the potential complainant/applicant advised of any internal appeals?

f) How many potential complainants/ applicants have exercised this avenue for appeal? Of those, how many led the centre to reverse its position and provide legal services to the complainant/ applicant?

8.         What number and proportion of complainants/applicants or potential complainants/ applicants that the Centre has advised or represented have had an actual full hearing on the merits of their case before the Tribunal? What number and proportion have not had a full hearing on the merits:

a) because the case settled.

b) because the complainant/applicant abandoned the claim

c) because the Tribunal dismissed the complaint/application on technical or procedural grounds without holding a hearing on the merits of the human rights allegation.

d) because the Tribunal has not yet held a hearing on the merits of the case.

9.         How many and what percentage of calls has the Centre received but not answered (i.e. where the caller gives up before their call is reached):

a) per year

b) in total since the Centre began operation?

10.       For those callers who manage to get their calls answered by the Centre, what is the delay time for getting a call to the Centre answered:

a) average per year; and

b) over the full period since the centre began operations.

11.       In those cases where the Centre has represented a complainant/applicant or potential complainant/applicant and obtained a settlement,  in how many of those cases did the Centre negotiate that the respondent provide a public interest remedy.  To the extent that you can, please advise whether that remedy included such things as developing a human rights/anti-discrimination policy, human rights monitoring, human rights training, establishment of an internal  human rights complaint process, etc. we would appreciate this information, if possible:

a) on an annual basis and

b) as a total for the period that your Centre has been in operation.

12.       What additional funding has the Centre requested of the Ontario Government? What reasons has it given for requesting the additional funding? What additional funding, if any, was granted and when?

13.       We understand that it has been the policy of your Centre not to represent any complainants who had filed complaints with the Ontario Human rights Commission before Bill 107 went into effect on June 30, 2008, and whose cases remained in the human rights system after that date. Did your Centre make any exceptions to that policy? If so, in how many cases and in what kinds of circumstances? If so, did your Centre make public any policy or guidelines on when it would agree to represent a complainant whose case was in the system when Bill 107 went into effect on June 30, 2008?

14.       How has the Human Rights Legal Support Centre advertised its services to the broad public, and what steps has it taken to ensure that these steps are accessible to potential clients with disabilities? Please break this down on a per year basis.

15.       How many hearings on the merits of a human rights complaint has the Human Rights Legal Support Centreís legal counsel conducted before the tribunal since June 30, 2008 (i.e. not procedural arguments but hearings that directly address and resolve the claimed human rights violation itself)?

a) per year

b) in total since your organization began operations.

16.       Please provide the same information as in the last question, but for cases where a full hearing on the merits of the complaint/application was held before the Tribunal, and the representation that your Centre provided was by a non-lawyer.

17.       What legal services is the Centre now providing outside Toronto? Which and what proportion of these are delivered by your staff located in local communities outside Toronto, and which from your Toronto offices? Where do you have offices and full time lawyers or other staff situated outside Toronto?

a) per year

b) in total since your organization began operations.

18.       What numbers of staff and staff positions have been employed at the Human Rights Legal Support Centre to investigate allegations of discrimination?

a) per year

b) in total since your organization began operations.

19.       Please provide a current organization chart for your organization in an accessible format e.g. not a PDF.

20.       Of the cases to date where the Centre has provided advice or assistance, what proportion have been disability claims? What proportion have been claims based on race? What proportion has been based on other Code grounds but not including claims of race and/or disability?

a) per year

b) in total since your organization began operations.

21.       Of the cases where your Centre has provided advice or representation, how many and what percentage have included potential systemic discrimination issues?

a) per year

b) since your Centre began operations.

22.       In how many cases has your organization requested that the Ontario Human Rights Commission intervene or otherwise take part in a case at the Human Rights Tribunal in which your Centre is involved? In how many of those cases did the Ontario Human Rights Commission actually intervene or otherwise take part?

a) per year

b) in total since your organization began operations.

23.       Does your Centre believe the Human Rights Commission should

a) be intervening in more individual applications before the Tribunal?

b) initiate more Commission-initiated applications before the Tribunal?

Please provide particulars.

24.       Has your Centre requested that the Human Rights Commission initiate a  Commission-initiated application under Bill 107? If so, in what circumstances? In how many and what percentage of cases of this did the Commission act on your request by launching a Commission-initiated application?

25.       Section 45.10 of Bill 107 requires your Centre to make an annual report each year since the bill went into force on June 30, 2008. The annual report must be delivered to the minister responsible for this legislation by the end of July of each year. Your website includes no annual reports.

a) Have reports been delivered to the minister but not made public or posted on your website? If so, how many, and when were they delivered?

b) Please provide us with copies of all annual reports that your Centre has produced, in an accessible format.

c) If annual reports have been produced but not made public, does your Centre know why they have not been made public?

26.       Section 45.11(2) of Bill 107 lets the minister audit your Centre. Has the minister audited your Centre? If so, when? Was any report produced as a result? If so, may we have a copy?

27.       Your Centre has made some public statements about areas of human rights concern in which it has decided to concentrate particular efforts, e.g. employment discrimination due to pregnancy. We are eager to know:

a) What areas are these over the period from June 30 2008 to the present, divided by year?

b) How did your Centre decide to set these priorities?

c) Who within your Centre decided on these priorities?

d) With whom did your Centre consult outside your organization?

e) Has your Centre offered the public an opportunity and an avenue for having input in advance into the areas which your organization sets as priorities under the Human Rights Code?

f) Which priority areas has your Centre made these priorities public?

28.       We understand that your Centre paid a respondent's legal costs in one widely-publicized case. In that case, we understand that your Centre had represented the complainant/applicant. The complainant/applicant won at the Tribunal. The Divisional Court later overturned that ruling and ordered the complainant/applicant to pay the respondent's legal costs concerning the court proceedings.

a) In how many other cases in which your Centre was involved has the complainant/applicant been ordered to pay the respondent's costs in connection with court proceedings?

b) In how many of those cases has your Centre paid the costs order?

c) Did these payments come out of your Centre's original budget or did the Government provide added funding to cover these costs orders? 

d) When you are giving advice to a complainant/applicant or potential complainant/applicant about bringing a human rights application before the Tribunal, is it your policy or practice to advise them of the risk that a court can later order them to pay the respondent's legal costs for court proceedings, if they win at the Tribunal but later lose in court after a respondent brings a judicial review application?

29.       How often has the Centre participated in judicial review applications to court concerning the Human Rights Tribunal? In how many cases where a complainant/applicant won at the Tribunal has your Centre acted for them on the judicial review application? In how many cases has your Centre declined to act for the complainant/applicant on the judicial review application? For example, in how many cases where a complainant/applicant lost at the Tribunal did your organization decline to bring a judicial review application to contest the Tribunal decision, even though the complainant/applicant wanted the Tribunal decision challenged in court?

30.       In what number and percentage of cases where your Centre represents the complainant/ applicant, and where there is a hearing on the merits of their human rights allegation at the Tribunal, did your Centre consider it appropriate to call an expert witness? In what number and percentage of those cases did your Centre end up calling an expert witness? In how many of those cases did the centre pay for the expert? In how many of those cases did the complainant/ applicant end up paying for the expert?

31.       In what number of cases, if any, has the Tribunal ordered your Centre to represent a complainant/applicant, in circumstances where your Centre had earlier declined to represent that person?

 

32.       It is very important for community organizations like ours to see the submissions to this Independent Review that are submitted by the Tribunal, the Human Rights Commission, and the Human Rights Legal Support Centre. Indeed, we will need to see them well before we have to submit ours, and before we have the chance to present at public hearings. Will your Centre agree to provide us and the public with your submission to the Independent Review, at least ten weeks before the time for filing submissions, and any public hearings that the Independent Review holds?

 

33.       To what extent is the Centre tracking the data referred to above? To what extent and how does the Centre make this information publicly available on an ongoing basis e.g. via its website?

As for all of our requests, if you cannot now make this information available, by when could it be made available? We don't know when the Independent Review will be holding public hearings or forums, or otherwise inviting input.

As a final matter, we want to let you know that we are asking the Independent Review to hold open, accessible public hearings or forums around Ontario, and to ensure that these are open to all, and not "invitation-only." We ask you to endorse our call for the Independent Review to hold these open, accessible public hearings.

Back in 2006, when Bill 107 was before the Legislature, the McGuinty Government promised that all interested people would get a chance to present their thoughts at public hearings on that bill. Despite this, after public criticism of Bill 107 was mounting at these hearings, the Government later invoked "closure" to cancel the further public hearings that had been promised, advertised and scheduled. It is thus especially important that all have their chance to have their say at this Independent Review.

Thank you in advance for your assistance. I would appreciate it if you could confirm that you received this email.

Sincerely,

David Lepofsky, Chair

Accessibility for Ontarians with Disabilities Act Alliance

cc:        Andrew Pinto apinto@pintowrayjames.com

            *****

Via Email Barbara.hall@ohrc.on.ca

 

To:  Barbara Hall, Chief Commissioner, Ontario Human Rights Commission

From:  David Lepofsky, Chair Accessibility for Ontarians with Disabilities Act Alliance

Date:  November 14, 2011

Re:  Independent Review OF Ontario Human Rights enforcement Process 

I am writing on behalf of the Accessibility for Ontarians with Disabilities Act Alliance. We are a non-partisan community coalition united to achieve a barrier-free Ontario for all persons with disabilities. 

We are preparing our submissions to the Independent Review of Ontario's Human Rights Enforcement system. This Independent Review is required under section 57 of Bill 107.

We are asking you for information that will be essential to assist in the preparation of our submission. This information will also be important to the Independent Review itself, and to other individuals and organizations who are preparing submissions to that Independent Review.

We would appreciate receiving this information as soon as practicable. If necessary, feel free to send us whatever you have when you have it, rather than waiting to send it until it is all assembled. Please let us know by when you can provide the information we request. Please also ensure that you provide the information in an accessible format. We would prefer if it is received in an MS Word document with no graphics. It is preferable for information to be presented as text, rather than in tables.

Please let me know if any of the information we are requesting is not capable of assembly by you. If it is not, please send us as much information that would be responsive to our request as is feasible. 

Our coalition took active part in the public debates over Bill 107 back in 2006, when the bill was before the Legislature. Regrettably, the McGuinty Government voted down most of the changes to that bill that we proposed. One of the only changes to Bill 107 that we won in 2006 was a strengthened requirement for this Independent Review. This Independent Review is needed to fairly, objectively and independently determine whether Bill 107 fulfilled the Government's commitments about it, or whether it has produced any of the difficulties that organizations such as ours forecast. 

For this Independent Review to be effective, the public must have access to detailed information on how Ontario's human rights enforcement system has worked since Bill 107 went into operation. It is that information which we now request.

We are especially interested in the number of human rights cases filed, resolved or adjudicated on the full merits before the Tribunal, and the extent to which complainants/applicants are represented by legal counsel, by non-lawyer-representatives,  or unrepresented. In the following questions, we would appreciate, where possible, a breakdown of the numbers of cases requested based on grounds of discrimination alleged e.g. how many involve race claims, how many involve disability claims, etc. 

We would welcome the following information:

1.         How many complaints filed by individuals under the old Human Rights Code were still outstanding before the Human Rights Commission and unresolved, as of June 30, 2008, when Bill 107 went into effect (the pre-Bill 107 case load)?

2.         Of the pre-Bill 107 caseload still at the Human Rights Commission as of June 30, 2008, how many human rights complainants opted to transfer their cases directly to the Tribunal under the Tribunalís transition rules between June 30, 2008 and December 31, 2008?

3.         Of the pre-Bill 107 caseload remaining at the Human Rights Commission as of the June 30, 2008 launch of Bill 107 and which didnít opt to go directly to the Tribunal under the Transition Rules, how many of those cases were resolved by the end of 2008? How many were sent to the Tribunal during that period, with the Commission staying involved as a party?

4.         How many pre-Bill 107 cases that were in the old system on June 30, 2008, and where the complainant opted to remain in the old system, reached January 1, 2009 as still unresolved? Of those unresolved cases on January 1, 2009, in how many did the Human Rights Commission not carry their cases forward to the Tribunal? In other words, how many complainants initially came to the Human Rights Commission under the old system, opted to stay in the old system as long as possible, and then found themselves on January 1, 2009 with their cases still unresolved, but without having the Human Rights Commission available after that to investigate and publicly prosecute their case?

5.         How many cases, filed with the Commission under the old system, simply "died" as of June 30, 2009, when the second transition period expired, due to inaction on the part of complainants who took no steps to have their complaints transferred to the Tribunal?

6.         How many Commission-initiated cases had been launched under the old Code and were still at some stage of the proceedings or process when Bill 107 came on line on June 30, 2008? Of those, how many are still outstanding now, and how many were resolved, either by a hearing or settlement?

7.         How many Commission-initiated applications has the Commission launched under Bill 107 since June 30, 2008? We would welcome this information on a per-year basis and as a total for the full period since Bill 107 went into effect. We would also appreciate a summary of the topic or issue each addressed, the ground of discrimination alleged, the respondent or respondents named, the year launched and the status of the case now (i.e. resolved under mediation, at a hearing or under an application for judicial review in court).

8.         How many Commission-initiated inquiries have been launched under s. 29.1 of Bill 107 since June 30 2008, and in what areas? We would appreciate the same particulars on them as are listed in the previous question. Of these, in how many has the Commission used any of the investigative powers referred to in s. 29.1 of Bill 107?

9.         In how many new applications launched under Bill 107 by individual applicants since June 30, 2008 has the Human Rights Commission applied to intervene before the Tribunal? In how many of these was the Commission permitted to intervene? We again would like the same particulars as in Question 7.

10.       Since June 30, 2008, in how many cases has the Human Rights Commission, as a party or intervener in proceedings before the Human Rights Tribunal, used its power under section 44 of Bill 107 to require the Tribunal to consider a policy that the Commission had approved? In how many cases, if any, where the Human Rights Commission believes that the Tribunal's decision or order is inconsistent with the Commission's policy, has the Commission asked the Tribunal to state a case to the Divisional Court, as permitted by section 44.1 of Bill 107?

11.       What procedure does the Commission have for members of the public to ask the Commission to institute a Commission-initiated complaint or application under Bill 107, or to request an inquiry by the Commission, or to intervene in an individual's application at the Tribunal? What has the Commission done to publicize this process? How many requests has the Commission received for the Commission to launch any of these procedures, but where the Commission has declined to do so?

12.       As you know, Bill 107 required the Commission to have a Disability Rights Secretariat and an Anti-Racism Secretariat as of June 30, 2008. Five years after Bill 107 was enacted, these have not been established, contrary to the requirements of Bill 107:

a) Why have these Secretariats still not been established?

b) What steps has the Commission taken to urge the Government to establish them?

c) What steps has the Commission taken to inform the public about the circumstances of this contravention of Bill 107?

d) What steps has the Commission taken to implement as much of these requirements as possible on its own?

13.       Beyond the decisions of the Human Rights Tribunal, to what extent have the Human Rights Commission's policy guidelines, policy statements and briefs since June 2008 caused changes in human rights policies or practices in Ontario? For example, we know that in spring 2011, the Human Rights Commission commendably pressed the Ontario Government not to include in its proposed Integrated Accessibility Regulation under the Accessibility for Ontarians with Disabilities Act, a provision that any public transit vehicle (purchased with taxpayers' money) need not be accessible to persons with disabilities if purchased before July 1, 2011. We were very troubled that the Ontario Government ignored your advice, and enacted the very provision that you cautioned against.

In what other areas have your new policy statements, policy guidelines or briefs since June 2008 led to actual change in practices, and in what areas have they been disregarded? How have you tracked this?

14.       Is the Human Rights Commission tracking the number of public interest remedies that the Tribunal orders or that are agreed to by settlements in applications under the Code since Bill 107 went into effect? To what extent has the number or proportion of public interest remedies, ordered by the Human Rights Tribunal or included in human rights settlements, changed since Bill 107 went into effect?

15.       Can you please provide us with an updated organization chart for the Human Rights Commission, preferably in a text-based accessible format, not PDF.

16.       What number and designation of staff does the Commission now have available to investigate human rights issues, and to what extent has the Commission used its much-reduced power in this context?

17.       Is the Human Rights Legal Support Centre sufficiently funded to meet the legal representation needs of victims of discrimination? What is the Commission's position on the appropriateness of the percentage of cases that cannot get through on the phone to the Human Rights Legal Support Centre, or that the Human Rights Legal Support Centre turns away, or to whom it cannot provide a lawyer, despite possible merit to their cases?

18.       To what extent is the Human Rights Commission tracking the data referred to above?

19.       It is very important for community organizations like ours to see the submissions to this Independent Review that are submitted by the Tribunal, the Human Rights Commission, and the Human Rights Legal Support Centre. Indeed, we will need to see them well before we have to submit ours, and before we have the chance to present at public hearings. Will The Human Rights Commission agree to provide us and the public with your submission to the Independent Review, at least ten weeks before the time for filing submissions, and any public hearings that the Independent Review holds?

As for all of our requests, if you cannot now make this information available, by when could it be made available? We don't know when the Independent Review will be holding public hearings or forums, or otherwise inviting input.

As a final matter, we want to let you know that we are asking the Independent Review to hold open, accessible public hearings or forums around Ontario, and to ensure that these are open to all, and not "invitation-only". We ask you to endorse our call for the Independent Review to hold these open, accessible public hearings.

Back in 2006, when Bill 107 was before the Legislature, the McGuinty Government promised that all interested people would get a chance to present their thoughts at public hearings on that bill. Despite this, after public criticism of Bill 107 was mounting at these hearings, the Government later invoked "closure" to cancel the further public hearings that had been promised, advertised and scheduled. It is thus especially important that all have their chance to have their say face-to-face at the Independent Review.

Thank you in advance for your assistance. I would appreciate it if you could confirm that you received this email.

Sincerely,

David Lepofsky, Chair

Accessibility for Ontarians with Disabilities Act Alliance

cc:        Andrew Pinto apinto@pintowrayjames.com