ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE
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UNITED FOR A BARRIER-FREE ONTARIO
READ AODA ALLIANCE'S ANALYSIS OF THE NOVEMBER 2012 FINAL REPORT OF THE ANDREW PINTO HUMAN RIGHTS CODE REVIEW- PINTO REPORT FINDS SUBSTANTIAL PROBLEMS WITH ONTARIO'S SYSTEM FOR ENFORCING ONTARIO'S HUMAN RIGHTS CODE, BUT WRONGLY PAPERS THESE OVER AND GIVES THE GOVERNMENT UNDESERVED POLITICAL COVER, BY ITS UNWARRANTED CONCLUSION THAT THE MCGUINTY GOVERNMENT'S 2006 PRIVATIZATION OF HUMAN RIGHTS ENFORCEMENT IS A "QUALIFIED SUCCESS"
November 16, 2012
On November 8, 2012, the Ontario Government made public the long-awaited 228-page final report of the Andrew Pinto Human Rights Code Review. The Government appointed that Review in August 2011 to independently investigate how effectively discrimination victims can get their human rights enforced in Ontario. The Ontario Human Rights Code guarantees the right to be free from discrimination in access to employment, goods, services and facilities, on grounds like disability, race, sex, religion and sexual orientation.
The Pinto Human Rights Review was appointed to consult the public and give feedback to the Government on how well a controversial 2006 law, Bill 107, has worked since it went into effect on June 30, 2008. Bill 107 took the job of publicly investigating and publicly prosecuting human rights cases away from the Ontario Human Rights Commission. It obliges discrimination victims to investigate their own human rights case, and to present it themselves at the Human Rights Tribunal. It created the Human Rights Legal Support Centre to advise and represent discrimination claimants.
The AODA Alliance now makes public its detailed, 39 page analysis of the Pinto ReportThis is entitled "ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE ANALYSIS OF THE NOVEMBER 2012 FINAL REPORT OF THE ANDREW PINTO REVIEW OF ONTARIO'S NEW SYSTEM FOR ENFORCING HUMAN RIGHTS IN ONTARIO –DAMNING FINDINGS OF A HUMAN RIGHTS ENFORCEMENT SYSTEM IN TROUBLE, WRONGLY PAPERED OVER AS A "QUALIFIED SUCCESS."
The Pinto Report makes damning findings about problems discrimination victims face when enforcing human rights. This paints a bleak picture. The human rights system is significantly under-funded. Far too many human rights claimants have no legal representation. They likely face a lawyer fighting for the party they accuse of discrimination. Unrepresented human rights applicants can flounder when trying to cope with complex and onerous Human Rights Tribunal forms and procedures. The Tribunal takes too long to resolve cases. For discrimination victims who overcome these barriers, damages awards are too low. The Human Rights Commission makes much too little use of its power to litigate public interest claims, did too little in the private employment field, and has trouble keeping on top of Human Rights case trends.
The Pinto Report papers over these damning findings by wrongly calling Bill 107 a qualified success. Making this worse, the Pinto Report ignored or minimized other serious problems with Ontario's new system for enforcing human rights. It disregarded or rejected several constructive solutions that we and others proposed. It painted an undeservedly rosy picture by inaccurately claiming that there is a general consensus that the new system is more efficient, quick and transparent.
Rather than finding that the government broke its 2006 promise to provide publicly funded lawyers to all human rights applicants, the report wrongly claims that the government never promised this. It unfairly faults the AODA Alliance for publicizing this publicly-documented promise. The Report gives the Government undeserved political cover, by failing to recognize that the Government broke this and other key promises about Bill 107. It has not ensured to discrimination victims a hearing within one year, has not ensured a strengthened Human Rights Commission effectively litigating systemic discrimination issues, and didn't create at the Human Rights Commission the promised Disability Rights and Anti-Racism Secretariats.
The report congratulates the new system as faster, without noting that the Government's 40% added funding could easily have achieved the same under the pre-Bill 107 regime. The report doesn't recognize serious concerns about the Human Rights Tribunal's power to override fair hearing guarantees. It papers over concerns about whether public interest remedies are as frequently imposed under Bill 107 as they were before. The report failed to recognize that the Human Rights Legal Support Centre has become a new Human Rights Commission, without the same public accountability and oversight.
Ontario needed an Independent Review of Bill 107 to be conducted by an impartial person who didn't take part in the 2006 public campaign either for, or against Bill 107. Instead, the Government appointed Mr. Pinto. An experienced human rights lawyer, he was a member of the small group of lawyers who successfully advocated in 2006 to get Bill 107 passed.
That so strong a proponent of Bill 107 found such substantial problems with Bill 107's operations testifies to how pressing is the need for this human rights system to be repaired. That so partisan a supporter of Bill 107 rejected or ignored many concerns that we and others raised with the Pinto Review, leaves a cloud permanently hovering over the Pinto Report's claim that Bill 107 is a "qualified success."
Adding to that cloud, the Pinto Review announced its public consultations on the eve of last year's holidays when few would notice. It cancelled public hearings in Thunder Bay, and only restored them when we brought this snub to the media. It unfairly enforced against us its March 1, 2012 deadline for receiving written submissions, while it continued to receive information from the Human Rights Legal Support Centre.
We were very active over the past year, trying to research and give fair, informative input to the Pinto Review. Our detailed, amply documented presentation to the Pinto Review won the endorsement of a number of others both within and outside of Ontario's disability community. It deserved much better treatment in the Pinto Report.
It is a cruel irony that on November 8, 2012, when the Pinto Report was finally released to the public via the internet, the McGuinty Government only posted the Pinto Report on its website in an inaccessible PDF format. The Government only fixed this after the AODA Alliance brought the creation of this new and embarrassing barrier to the Government's attention.
Below we set out a summary of our analysis of the Pinto Report. In that analysis, we give:
* a summary of key findings in the Pinto Review that we support; and
* a breakdown of the many problems with the Pinto Report.
The AODA Alliance's March 1, 2012 initial brief to the Pinto Review, and its April 12, 2012 supplemental brief to the Pinto Review(the latter of which Andrew Pinto refused to read) (which give a comprehensive history of this issue and constructive recommendations on how to fix Ontario's human rights enforcement system).
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Our analysis of the Pinto Review's Final Report is summarized as follows:
1. The Pinto Review's Final Report correctly makes damning findings about problems that discrimination victims now face in Ontario when they try to get their human rights enforced. This paints a bleak picture for many discrimination victims who come to Ontario's human rights system to seek a remedy. The Pinto Report found that:
a) It is a "serious problem" that far too many human rights applicants (those claiming they suffered discrimination) have no legal representation when they present a discrimination claim at the Human Rights Tribunal. Fully 65% of applicants are unrepresented. The Government's new Human Rights Legal Support Centre only represents a mere 12% of those applicants. A human rights applicant is likely opposed by a respondent (the one accused of discrimination) that has legal representation. Fully 85% of respondents have a lawyer. The report found that "applicants with meritorious cases who cannot otherwise find legal representation and who are unable to navigate the Tribunal’s processes are not having their needs met." It also reported the frustration that individuals experience when trying to call the Human Rights Legal Support Centre but can't get through on the phone. It concluded that a human rights applicant whom the Centre declines to represent can be left "floundering."
c) Human Rights Tribunal forms and procedures are too complex for unrepresented applicants to navigate.
e) The Ontario Human Rights Commission is not making effective use of its powers to launch public interest cases, and to intervene in individual cases at the Human Rights Tribunal.
f) The Human Rights Commission has focused insufficient effort at securing voluntary compliance in the private employment context.
g) The Human Rights Commission now has trouble keeping on top of Human Rights Tribunal case trends.
h) There is a need for increased funding to Ontario's human rights enforcement system. We disagree with the Pinto Report's recommendation that this new funding should be directed to the Human Rights Legal Support Centre. Instead, that Centre requires much more public accountability and oversight. We believe that any new funding should instead be shared among other organizations that could help provide legal representation to human rights applicants.
2. The Pinto Report found that all these problems need to be fixed. We believe that taken together, those problems cry out for a strong conclusion that Bill 107's new human rights enforcement system is seriously flawed.
3. Instead of reaching that conclusion, the Pinto Review's Final Report reached the unwarranted finding that Ontario's new human rights enforcement system is a "qualified success." That conclusion is made all the more untenable, because the Pinto Report also inappropriately ignored or downplayed several other serious problems that we and others raised with Bill 107's human rights enforcement system, and many of our constructive proposals on how these could be fixed. The Pinto Report thereby painted an undeservedly rosy picture:
a) The report wrongly claims that there is a general consensus that the new system is more efficient, quick and transparent.
b) Rather than finding that the government broke its 2006 promise to provide publicly funded lawyers to all human rights applicants, the report wrongly claims that the government never promised this and faults the AODA Alliance for publicizing this publicly-documented promise.
c) The report wrongly denies that Bill 107 privatized human rights enforcement in Ontario.
d) The report makes an unsubstantiated claim that the new system is faster than the old system.
e) The report ignored our key recommendation that the Human Rights Code be amended to give discrimination victims the option of either asking the Human Rights Commission to publicly prosecute their case or themselves privately presenting their own case to the Human Rights Tribunal.
f) The report doesn't identify serious concerns about the Human Rights Tribunal's power to override fair hearing guarantees in the Statutory Powers Procedure Act.
g) The report papers over concerns on whether public interest remedies are as frequently imposed under Bill 107 as they were before Bill 107.
h) The report urges the government to further study whether to let the Tribunal order a losing party to pay the winning party's legal costs – a new barrier to access to justice.
i) The report failed to consider the barrier to access created by a new risk that discrimination victims face under Bill 107 of having to pay a respondent's court costs if a Tribunal win is reversed on judicial review through no fault of the applicant's.
j) The report didn't consider problems with the Human Rights Legal Support Centre's deciding if it thinks a human rights applicant can represent themselves at the Tribunal, as a criterion for the Centre's refusing to represent that applicant.
k) The report failed to recognize that the Human Rights Legal Support Centre is a new gate-keeper under Bill 107.
l) The report failed to recognize that the Human Rights Legal Support Centre has become a new Human Rights Commission without the same public accountability and oversight.
m) The report didn't examine problems for human rights applicants caused when the Human Rights Legal Support Centre only agrees to represent a client partway through the Tribunal process.
n) The report disregarded several key measures we proposed to improve public accountability and oversight of the Human Rights Legal Support Centre.
o) Instead of criticizing the government for failing to keep its promise, required by law, to establish a new Disability Rights Secretariat and Anti-Racism Secretariat at the Human Rights Commission, the Pinto Report makes the unwarranted recommendation that the Code be amended to abolish these Secretariats before they are even created.
p) The report praised human rights commission efforts at advocating for voluntary action to comply with the Code, without recognizing that the government has ignored a number of important Commission recommendations regarding disability accessibility.
q) The report left uncriticized the plight of cases lost in the shuffle during the transition to Bill 107.
r) The report disregarded a number of other important recommendations we presented.
4. The Pinto Report gives the Ontario government undeserved political cover. The report didn't identify the fact that the Government broke several key promises that it made in 2006 regarding Bill 107, including the promises that each human rights applicant would get a hearing at the Tribunal within one year, that the Human Rights Commission would be a strengthened force for human rights by launching public interest cases at the Tribunal, and that there would be a new Disability Rights Secretariat and Anti-Racism Secretariat established at the Human Rights Commission.
5. Ontario has needed an Independent Review of Bill 107 to be conducted by an impartial person who did not take part in the 2006 public campaign either for, or against Bill 107. Instead, the Government appointed Mr. Pinto. He is an experienced and knowledgeable human rights lawyer. However, he was a member of the small group of lawyers who successfully advocated in 2006 to get Bill 107 passed.
6. That so strong a proponent of Bill 107 found such substantial problems with Bill 107's operations testifies to how pressing is the need for this human rights system to be repaired. That so partisan a supporter of Bill 107 rejected or ignored many concerns that we and others raised with the Pinto Review, leaves a cloud permanently hovering over the Pinto Report and its claim that Bill 107 is a "qualified success."
7. The cloud over the Pinto Report is made all the darker for additional reasons. For example, the Pinto Review did not do enough to publicize its public consultations. It unfairly enforced against us its March 1, 2012 deadline for receiving written submissions, while it continued to receive information from the Human Rights Legal Support Centre thereafter.
8. Ontario still needs its human rights enforcement system to be properly, impartially and independently reviewed by a person with no ties to either side of the Bill 107 debate. The Pinto Report in many ways reads like a partisan, one-sided reprise of the pro-Bill 107 side of the 2006 debate over this legislation, dressed up as an independent assessment of it.