ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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UNITED FOR A BARRIER-FREE ONTARIO

AODA ALLIANCE CALLS ON Independent Review OF ONTARIO'S HUMAN RIGHTS ENFORCEMENT TO HOLD OPEN,ACCESSIBLE PUBLIC HEARINGS

November 17, 2011

SUMMARY

The AODA Alliance has written Mr. Andrew Pinto, the Toronto lawyer whom the McGuinty Government appointed to conduct an Independent Review into Bill 107. Bill 107 is the legislation that privatized the enforcement of human rights in Ontario.

We asked Mr. Pinto to hold public hearings or forums around Ontario that are open, accessible, and not "invitation-only". We also offer a list of the issues that the Independent Review should consider. We ask Mr. Pinto to let us know about his plans for conducting this Independent Review. We set out the letter below.

We encourage one and all to write to the Independent Review to endorse our letter. Urge others to do the same. Its contact information is included in the letter, below.

            MORE DETAILS

In 2006, over the objection of the AODA Alliance and many others, the McGuinty Government enacted Bill 107. 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. Bill 107 leaves it to discrimination victims to investigate their own case privately, and to prosecute it before the Human Rights Tribunal. Bill 107 established the Ontario Human Rights Legal Support Centre to provide legal representation to discrimination victims. However, too often potential discrimination complainants/applicants don't get legal representation from that Centre.  

In 2006, we were unfairly blocked from being able to present our concerns about Bill 107 at public hearings before a Standing Committee of the Legislature that had been 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 

One of the few amendments we won in the Bill 107 debate was a requirement that there be an Independent Review of Bill 107 after four years. This Independent Review must give us and the public a fair chance to debate the issues that so many were blocked from presenting to the Legislature in 2006, with the added benefit of four years' experience with Bill 107 now.

Earlier this year, the McGuinty Government appointed Mr. Andrew Pinto to conduct this Independent Review. The choice of Mr. Pinto is controversial, although he is clearly knowledgeable about human rights. It was important for the Government to select someone to conduct this Independent Review who had not been an active participant in the hotly-contested 2006 debates over Bill 107.

Mr. Pinto was an active and public participant in those debates. He was one of the small group of private lawyers who actively advocated for Bill 107 in public. He directly, publicly and actively opposed the AODA Alliance's position on Bill 107. For example he attended an AODA Alliance Queen's Park news conference, uninvited, to voice his views to reporters in opposition to ours. For more on this, visit: http://www.aodaalliance.org/strong-effective-aoda/08292011.asp

Send us your feedback. Write us at: aodafeedback@gmail.com

            *****

 

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

1929 Bayview Avenue

Toronto, Ontario M4G 3E8

New Email Address: aodafeedback@gmail.com

Visit: www.aodalliance.org

November 17, 2011

To: Mr. Andrew Pinto

via email: apinto@pintowrayjames.com

c/o Pinto, Wray, James

393 University Avenue, Suite 2000

Toronto, Ontario

M5G 1E6

 

Dear Sir,

 

RE: Bill 107 Independent Review of the Enforcement of the Ontario Human Rights Code

I write on behalf of the Ontarians with Disabilities Act Alliance. We are a non-partisan community coalition, campaigning for a fully accessible Ontario for all people with disabilities.

We seek specifics from you on how you will be conducting the Independent Review of Bill 107's changes to enforcement of the Ontario Human Rights Code that the Ontario Government appointed you to undertake. We offer recommendations on the questions this Independent Review should consider and on how this Independent Review should be conducted.

We want to fully participate in this independent review of Bill 107. This Independent Review is required by s. 57 of Bill 107. Bill 107 is legislation the McGuinty Government passed in 2006 that privatized enforcement of human rights in Ontario.

We have an especially compelling interest in the Bill 107 Independent Review. As you know, we took active part in the 2006 public debates over Bill 107. The McGuinty Government voted down most 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.

            QUESTIONS THE BILL 107 INDEPENDENT REVIEW SHOULD ASK

This Independent Review must neutrally, fairly, objectively, comprehensively and independently determine to what extent Bill 107 fulfilled the commitments about it that the Government and Bill 107's proponents made, and to what extent it has produced problems that its critics (such as our coalition and many others in the disabilities and racialized communities) forecast.

If Bill 107 is not living up to the commitments the Government and its supporters made for it, or if it has produced problems, the Independent Review should identify these, and make concrete recommendations on how to correct them. These recommendations should include, where needed, proposals for amendments to this legislation and any other related provincial legislation or regulations. They should also include proposals for any changes to the implementation of this legislation.

The Independent Review must ask the tough questions. Soft questions like “Are we on the right track?” or “Are we making some progress?” are inadequate. They set the bar far too low.

Questions this Independent Review should ask include, for example:

1. Has Bill 107, as implemented to date, fulfilled the commitments that the McGuinty Government made in 2006?? The Government's commitments are listed and documented at http://www.aodaalliance.org/strong-effective-aoda/07022008.asp

Has it delivered the benefits that its proponents and advocates said it would?

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

3. How many and what percentage of 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?  Of these, how many and what percentage are being represented by lawyers, as opposed to non-lawyers?  How many people, and what percentage of total complainants/applicants, are unrepresented during formal or informal proceedings at the human Rights Tribunal?

4. How many and what percentage of discrimination claimants is the Human Rights Legal Support Centre serving, and how many or what percentage 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 

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

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

7. How does the Human Rights Legal Support Centre decide which cases to give full legal representation, versus legal advice, as opposed to turning them away?  By what criteria?  What priorities is the Human Rights Legal Support Centre focusing on in handling cases?  How are these priorities set?  What input from equality-seeking communities is obtained and used to set these priorities?

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

a) To what extent and in what cases is the Human Rights Commission using its power to intervene in cases at the Tribunal, to initiate its own cases at the Tribunal, or to launch inquiries under its powers in Bill 107?  How effective have these been at combating systemic discrimination?

b) What impact has the Commission's policy statements had on the protection and enforcement of Human Rights since the Commission lost its core power to enforce the Code.

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

10. 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?  How are these remedies monitored?  How effective are they at preventing 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.

11. To what extent has the Human Rights Tribunal taken into account the input of the public in designing its new rules of procedure?

12. To what extent have the Tribunal's new rules of procedure resulted in hearings and other proceedings that are fair, and that are publicly seen as fair?

13. What is the impact on human rights enforcement and protection of Bill 107's elimination of the right to appeal from the Human Rights Tribunal to Court, and Bill 107's restricting court review of Tribunal decisions to cases where the Tribunal's decision is patently unreasonable?

14. Does Bill 107 sufficiently provide for public oversight of and public accountability of the Human Rights Tribunal, Commission and Legal Support Centre?

15. What is the impact on human rights protection and enforcement of the new primary exposure of human rights complainants/applicants (in the absence of participation by the Human Rights Commission) to pay the legal costs of respondents if the complainant/applicant is unsuccessful in a judicial review application in court to challenge a Human Rights Tribunal ruling?

            HOW THE INDEPENDENT REVIEW WILL CONSULT THE PUBLIC?

We have very extensive experience conducting inclusive public consultations, and advising government bodies on how to do the same. For example, in 2009, the McGuinty Government appointed Mr. Charles Beer to conduct an Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act. Mr. Beer benefited from our advice on how to conduct his public consultations. When we advocated for the Independent Review power in Bill 107, we modeled it after the Independent Review power in the AODA. We encourage you to review the brief we submitted to Mr. Beer on how to conduct his Independent Review. It is available at: http://www.aodaalliance.org/strong-effective-aoda/07022009.asp 

First and foremost, we recommend most strongly that you hold ample open and accessible public hearings or forums for interested people and organizations, including people with disabilities, to fully and effectively give you their input, face-to-face. These public hearings or forums should be held in accessible public venues, near to accessible parking and to accessible public transit. The locations should not require a long fatiguing walk to arrive at the room, for that will be a barrier for many with fatiguing and mobility limitations.

These public hearings and forums should be open to anyone to attend, including the media. They should not be "invitation-only." They should be held in several centers across Ontario, and not just in Toronto.

Back in 2006, the McGuinty Government took the controversial step of invoking closure to cancel public hearings before the Legislature that had been promised, advertised and scheduled, once earlier hearings showed that criticism of Bill 107 was mounting. See http://www.aodaalliance.org/reform/update-112506.asp

This makes it doubly important for this Independent Review to ensure that everyone who wishes, can present their concerns face-to-face to this Independent Review. Our coalition was one of the community organizations whose presentation to the Legislature's Standing Committee hearings on Bill 107 was cancelled after it had been scheduled, due to the Government's 2006 closure motion.

These public forums or hearings should be widely publicized and advertised well in advance. People need time to prepare to present. People need to arrange child care. People with disabilities need sufficient time to arrange accessible transportation. Ample prior publicity of these events should be provided in an accessible way, through media that will effectively reach as many interested people, including people with disabilities as possible. It is certainly not sufficient to simply post an announcement on a website, and hope interested people and organizations will find it.

These public forums should devote their entire time to letting members of the public express their views on the issues that the Independent Review is assigned by Bill 107 to address. There should be no time allocated for the three human rights agencies that implement Bill 107 (i.e. the Human Rights Commission, Human Rights Tribunal and Human Rights Legal Support Centre) to announce to members of the public in attendance what they have done since Bill 107 was enacted. These forums or hearings are needed for the public to give their input. That is what 100% of the time should be used for.  Of course it is open to those human rights agencies to make public and distribute information on their activities, as addressed further below. 

It would be woefully insufficient for this independent review to leave it to people to only send in submissions by mail, email or fax. For many members of the public, those avenues will be inadequate. You must receive feedback face-to-face, from those who have experienced this new system and wish to share their views.

In addition to holding public forums or hearings around Ontario, the Independent Review should arrange to attend open public meetings at different community organizations, which can be promoted in advance. These can give the Independent Review a chance to hear about the distinctive needs and experiences of different sectors within the community.

We recommend that this Independent Review promptly release a consultation document. It should list sample questions that members of the public might address in their presentations to you. Our list of questions earlier in this letter could serve as a guide. As well, this consultation document should provide a neutral explanation of how the human rights enforcement system was designed before and after Bill 107.

We have asked the three human rights agencies to make public their submissions to your inquiry well in advance of your public forums or hearings. This would let the public review and comment on them. We have also written those three human rights agencies to ask for public disclosure of key information about their activities since Bill 107 was enacted. This information will be very important to your Independent Review. It will also be very important for community groups and individuals to have well in advance, so that we can comment on it in our submissions to you. 

You have already received copies of our letters to the three human rights agencies. These are publicly available at: http://www.aodaalliance.org/strong-effective-aoda/11152011.asp The information we asked them to provide is necessary to you in conducting the independent review. It reflects the type of information that the independent review should itself seek.

The final report of the Independent Review should offer specific, concrete, practical recommendations. It should provide a practical roadmap that the Government can act upon, whether via legislative amendments or other strategies. The public should be able to easily assess whether or not the Government implemented the report's recommendations.  It is important that the Independent Review’s Report be made public as quickly as possible after it is delivered to the Government.

            CONCLUDING MATTERS

The human rights enforcement system has unfortunately been mired in controversy. There was a major controversy among equality-seeking groups in 2007 over whether Bill 107 would make things better or worse. There is also an ongoing controversy about the fairness of the system among some from the perspective of those against whom discrimination is alleged. It is important for this Independent Review to clear the air on all these fronts, and to have the public's confidence necessary to that end.

We look forward to hearing from you as soon as possible on how this Independent Review will be conducted, including whether when and where there will be public hearings or forums.

Sincerely,

David Lepofsky, CM, O. Ont.

Chair, AODA Alliance

ACCESSIBILITY: Barbara Hall, Chief Commissioner Ontario Human Rights Commission Barbara.hall@ohrc.on.ca

Kathy Laird Executive Director  Ontario Human Rights Legal Support Centre KLaird@HRLSC.on.ca

David Wright, Associate Chair, Ontario Human Rights Tribunal David.A.Wright@ontario.ca