We Ask Human Rights Tribunal, Commission and Legal Support Centre to Disclose More About Their Operations –McGuinty Gvornment Urged to Make Public the Annual Reports of the Human Rights Legal Support Centre
January 23, 2012
SUMMARY
Here is the latest news in our effort to ensure that people with disabilities and others who face discrimination in Ontario can effectively enforce the right to equality that the Ontario Human Rights Code guarantees to them.
1. AODA Alliance Asks Pinto Human Rights Review to Extend Deadlines for Signing Up to Present to that Review and to Move Back the Dates for Public Hearings and Stakeholder Meetings
On January 23, 2012, the AODA Alliance wrote to Mr. Andrew Pinto to reinforce our as-yet unanswered request that he extend the time lines he has set for signing up for public hearings and stakeholder meetings, as part of his Review of how human rights are enforced in Ontario. See our letter, below. This is a follow-up to our January 9, 2012 letter to Mr. Pinto, which you can see at https://www.aodaalliance.org/strong-effective-aoda/0109022012.asp
We and many others need more time to give our input to the Review of Ontario’s Human Rights System which the McGuinty Government appointed Toronto lawyer Andrew Pinto to conduct. For more on that Review, visit: https://www.aodaalliance.org/strong-effective-aoda/08292011.asp
2. AODA Alliance Asks Three Ontario Human Rights Agencies for More Information about their Operations
On November 14, 2011, we wrote Ontario’s Human Rights Tribunal, Human Rights Commission, and Human Rights Legal Support Centre, to ask for detailed information on how Ontario’s Human Rights Code is now being enforced. Those letters are available at: https://www.aodaalliance.org/strong-effective-aoda/11152011.asp
As of January 23, 2012, we have received responses from all three human rights agencies. They answered several of our questions, but not all of them. We have posted the responses we have received to date at https://www.aodaalliance.org/strong-effective-aoda/01232012.asp
On January 23, 2012, we again separately wrote to Ontario’s Human Rights Tribunal, Human Rights Commission and Human Rights Legal Support Centre. We asked each for more information arising out of their responses, and for answers to those of our earlier questions that are still unanswered. We set out those three new letters below. You will see that we are trying to get a good picture of how Ontario’s new system for enforcing human rights is actually working, so we can formulate a fair and accurate brief for the Pinto Human Rights Review.
3. Human Rights Advocate Urges McGuinty Government to Make Public Annual Reports of Ontario’s Human Rights Legal Support Centre
On January 18, 2012, Avvy Go, director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, wrote the McGuinty Government to ask it to immediately release to the public the annual reports that the Human Rights Legal Support Centre has been delivering to the Government since it began operations in 2008. We set out her letter below, which we entirely endorse.
Since then, the Human Rights Legal Support Centre told us that it had just made public one of its annual reports, the one for 2008-2009. You can find it at: http://www.hrlsc.on.ca/en/AnnualReports.aspx
As of now, the other annual reports and annual financial statements of the Centre are not available to the public. We believe that all these reports should be made public as soon as they are delivered to the Government, not years later.
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
January 23, 2012
VIA EMAIL
Andrew Pinto, Chair
Ontario Human Rights Review
393 University Avenue
Suite 2000
Toronto, Ontario
M5G 1E6
E-mail: chair@ontariohumanrightsreview.org
Fax: (416) 593-4923
Dear Mr. Pinto,
Re: Independent Review of Bill 107’s Privatizing Human Rights Enforcement in Ontario
I want to reinforce our January 9, 2012 letter’s request that you give us and the public longer time lines to take part in your Review of Ontario’s system for enforcing human rights. It is even more necessary for you to extend today’s deadline for people to ask to take part in your Review’s public forums and stakeholder meetings, and for you to move back to March, if not later, the dates for your public forums and stakeholder meetings. Our January 9, 2012 letter to you is available at https://www.aodaalliance.org/strong-effective-aoda/0109022012.asp
As you know, back on November 14, 2011, we wrote the three agencies whose work you are reviewing, the Ontario Human Rights Commission, the Human Rights Tribunal and the Human Rights Legal Support Centre. We asked them each for important information which we and the public need to give your Review informed input. Those letters are at https://www.aodaalliance.org/strong-effective-aoda/11152011.asp
The Human Rights Commission only provided their response on January 17, 2012. We are writing to the Commission with follow-up questions.
The Human Rights Legal Support Centre sent us its finalized response only on January 9, 2012, editing an earlier response sent on December 16, 2012. We are now seeking further information from the Centre, including, among other things, answers to a number of our earlier questions that the Centre still hasn’t answered, as well as additional information that we consider necessary.
As one striking example, it turns out that the Human Rights Legal Support Centre has delivered a number of annual reports to the Ontario Government. Inexplicably, the Government had not earlier made any of these public. The Centre’s January 9, 2012 disclosure to us refers us and all readers to those annual reports. However the Centre did not then provide any of those annual reports, even though we asked for them two months ago.
It was not until January 18, 2012 that the Centre alerted us that it recently made one of those annual reports public. We have not had a chance to fully review that annual report’s detailed 30 page contents. We continue to wait for the Government or the Centre to disclose the rest of the Centre’s annual reports and its financial statements. It is very troubling that even over half a year after the statutory deadline for the appointment of your Review, neither the Government nor the Centre has made all these annual reports and annual financial statements public well in advance.
The Human Rights Tribunal provided its answers to our inquiries on December 9, 2011. We are writing to the Tribunal to ask for further information. Moreover, in several places, rather than itself answering certain of our earlier questions, the Tribunal has instead told us to read all the numerous Tribunal decisions since Bill 107 went into effect, to try to sift out answers on important issues that, in our view, the Tribunal should itself be tracking.
As we addressed in our January 9, 2012 letter to you, your Review made its Consultation Paper public on the afternoon of Friday, December 23, 2011, when many are away or leaving on holidays.
It will be very important for the public to have access to all this information, and proper time to review it, to decide whether they wish to take part in your Review, and to formulate their input. We are but one of many community organizations that sought to take part in the 2006 public hearings on Bill 107, before the Government used its majority to shut down any continuation of those hearings. Many of those who wanted to take part in those hearings were community organizations, supported by limited resources. As a community coalition empowered by volunteer efforts, we cannot take all the needed efforts to obtain the information needed from all three human rights agencies that you are reviewing, and to turn around a detailed analysis of them on such short time lines.
We look forward to hearing a response from you as soon as possible to the inquiries in our January 9, 2012 letter to you, including our request for extension of the time lines you set for public participation in your Review. Could you please confirm receipt of this letter.
Sincerely,
David Lepofsky, CM, O.Ont.
Chair, AODA Alliance
cc: Michael Gottheil, Executive Chair,
Social Justice Tribunals Ontario
michael.gottheil@ontario.ca
Barbara Hall, Chief Commissioner,
Ontario Human Rights Commission
barbara.hall@ohrc.on.ca
Kathy Laird, Executive Director,
Human Rights Legal Support Centre
klaird@hrlsc.on.ca
David Wright, Associate Chair,
Human Rights Tribunal of Ontario
david.a.wright@ontario.ca
*****
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue
Toronto, Ontario M4G 3E8
New Email Address: aodafeedback@gmail.com
Visit: www.aodalliance.org
January 23, 2012
Kathy Laird, Executive Director,
Human Rights Legal Support Centre of Ontario
180 Dundas Street West, 8th Floor
Toronto, Ontario
M7A 0A1
Via Email klaird@hrlsc.on.ca
Dear Ms. Laird,
Re: Independent Review of Bill 107’s Privatizing Human Rights Enforcement in Ontario
Thank you for the information you provided in final form on January 9, 2012, in response to our November 14, 2011 request, on the operations of the Human Rights Legal Support Centre. Thank you as well for the link you provided on January 18, 2012 to your Centre’s 2009-2010 annual reports.
We write to ask for further information as a result of our review of the information you have provided so far. As we continue to study the information you have sent us, further requests for information may come to light. We want to get this request to you as soon as possible, given the very tight time lines that the Pinto Review has imposed on public participation in this mandatory Review of Ontario’s enforcement of human rights.
Could you please provide the following information in an accessible format as soon as possible:
1. Some of your January 9, 2012 answers to our requests for information about the Centre refer to the Centre’s annual reports. We asked for these back in our November 14, 2011 letter to you. To date, you have only provided your annual report for 2009-2010. We understand from you that before this, the Government had not made any of them public.
a) Please provide all the Centre’s reports to us now, as well as any annual financial statements.
b) Why has the Centre not promptly made these annual reports and annual financial statements public each year, as an agency funded by the public?
c) Has the Centre or the Government given the Pinto Review any of these annual reports or financial statements?
2. The Centre’s January 9, 2012 disclosure to us states: “In its first three (3) years of operation, from June 20, 2008 to June 30, 2011, the Centre answered 72,200 inquiries from members of the public.”
a) What is the breakdown of calls per year?
b) What are the figures per year for calls to the Centre that were attempted, but the caller was not able to get through to a human being at the Centre or otherwise able to complete the call? Is the Centre certain that those figures are comprehensive, or is it possible that there were additional callers who tried without success to get through to a live person at the Centre, but their attempted call was not captured by your data collection?
3. The Centre is governed by a Board of Directors appointed by the Ontario Government.
a) Please provide us with copies of the minutes of all meetings of the Centre’s Board of Directors since the Centre was created, whether in person or via conference call or other electronic means, and a list of the dates of all meetings of the board of directors. If any client names or confidential identifying information is included in those minutes, we of course agree that they should be blacked out.
b) Please provide us with a list of all the people that have served or are serving on the Centre’s Board of Directors, including the date of the appointment of each and the term of each. We would also like to know how many people were on the Board at any one time, throughout the period since the Centre went into effect. We gather that for a period of time, the only Board member was the initial Chair. If so, we would, for example, like to know how long that period was, and whether there is something akin to Board minutes documenting that Chair’s official decisions or other work when he was the sole board member.
c) How many hours do the Board members (including the Chair) each work? Are they paid on a full time, per diem or per hour basis? At what rate of pay?
4. What are the Centre’s criteria for deciding on whether a person’s case has sufficient merit to receive legal representation by the Centre? Must there be simply any evidence on which a Tribunal finding could be made in favour of the applicant, or does the Centre make credibility assessments or other judgement-calls about the strength of the applicant’s case, even if there is some evidence that could support a finding of discrimination?
5. The Centre’s January 9, 2012 response to us indicates that even if an applicant has a case that has merit, and asks the Centre to represent that applicant at the Human Rights Tribunal, the Centre has a policy to refuse to represent that applicant if, in the Centre’s judgement, the individual could represent himself or herself in proceedings at the Human Rights Tribunal.
a) What does the Centre use as its criteria for deciding whether an applicant can self-represent?
b) In the Centre’s view, how is an unrepresented human rights applicant to effectively represent themselves without legal expertise when navigating the Tribunal’s rules of procedure?
c) Does the Centre take into account an applicant’s income or personal resources when deciding if that applicant can represent himself or herself at the Tribunal, or in deciding on whether the Centre will give the individual any legal services?
d) What role does a potential applicant’s income or means play in the Centre’s assessing whether they are a disadvantaged individual, for whom priority will be given to provide them with the Centre’s services?
e) What role does the Centre give to the fact that a respondent is represented at the Tribunal when assessing whether, in the Centre’s view, the applicant can represent themselves at the Tribunal?
6. The Centre’s January 9, 2012 response to us states the following regarding complaints the Centre received about its refusing to represent an applicant: “In the last three years, only two (2) complaints were not resolved at the staff level and taken to the Board of Directors.”
a) What happened with the two complaints that went to the Centre’s board? What was the final result?
b) Did the Board give these individuals an opportunity to appear in person before the board? Did such a meeting occur?
7. In the response to our November 14, 2011 inquiries, the Centre stated: “If the decision of the senior team is that representation should not be provided, the lawyer will meet with the applicant to explain the decision and the reasons. In most cases, the individual has accepted our decision. In fact, many applicants have gone on to win their cases at the Tribunal with our assistance.”
a) Please tell us what specific data or information you have to support the statement that many applicants whom the Centre refuses to serve go on to win at the Tribunal?
b) What data does the Centre have or track to know how many applicants whom the Centre refuses service even go on to the Tribunal at all?
c) What specific information does the Centre track, and does it have, to support its opinion that in most cases where the Centre refuses to give services to an applicant, the individual has accepted the Centre’s decision.” Does this come from statements from the applicants? To whom? What record of this does the Centre have?
d) Where the Centre states: “many applicants have gone on to win their cases at the Tribunal with our assistance,” do you track data, and do you have any data, showing that your assistance given to these people caused or contributed to their succeeding at the Tribunal?
e) What does the Centre mean by an applicant going on to “win” at the Tribunal? Does this refer to their getting a Tribunal finding of discrimination at a full hearing on the merits? Or does this refer to their also getting the Tribunal to order all the remedies for discrimination that the applicant sought? Or does it also include cases where an applicant went on to the Tribunal and negotiated some sort of settlement agreement, including one where there is no finding of discrimination made? If you are also including cases settled without a Tribunal ruling or order finding discrimination, do you call a case a “win” if the terms of the settlement are less than the applicant sought?
8. The Centre says that there has been an increase in public interest remedies ordered by the Tribunal since Bill 107 went into effect:
a) Please provide any and all specifics that you have on this, including the basis of this claim. For example, what is the number of pre-Bill 107 public interest remedies to which you are comparing, and for what year or years? Where are you getting these numbers to compare?
b) Does the Centre here claim that since Bill 107, there is a higher rate of public interest remedies that the Tribunal orders relative to the total number of cases that it decides?
9. The Centre says it regularly seeks systemic or public interest remedies:
a) For whom does the Centre act when seeking these in an individual case – the private client or some other perceived public interest at large?
b) If an applicant is prepared to settle a case on terms that a respondent offers, but which includes no systemic or public interest remedies, what steps, if any, does the Centre take to try to get the respondent to agree to public interest remedies, and on whose behalf does the Centre then act?
c) Could you please provide annual statistics of the total number of case settlements your Centre has negotiated, and the percentage of all settlement agreements in which your Centre has settled a case, and in which a public interest or systemic remedy has been obtained?
d) Please also provide copies of the settlement agreements with or without public interest remedies. Let us know if your Centre, agrees to confidentiality terms in settlement agreements and if so, in what circumstances.
10. We understand that your Centre has set up some sort of system for “duty counsel” at Tribunal hearings. Could you please provide specifics on how this works including, for example:
a) Of the applicants whom the Centre has represented at Tribunal proceedings each year, how many and what percentage have received this representation via duty counsel, as opposed to a lawyer or paralegal who prepared the case for the hearing in advance of the hearing day?
b) What services or representation does the duty counsel provide? Do they argue the case for the client?
c) At what kinds of Tribunal proceedings does duty counsel appear? Hearings on the case’s merits? Mediations? Summary dismissal applications? Procedural motions or discussions?
11. The Centre’s January 9, 2012 response at various points refers to delivering services by lawyers. Please give a breakdown by year of services delivered by lawyers as opposed to non-lawyers e.g. paralegals or community legal workers.
12. Can you advise what percentage of applicants appear at summary dismissal proceedings at the Tribunal unrepresented?
13. The Centre states that it has a budget for hiring expert witnesses.
a) What is the annual budget for this? Has the Centre ever needed to exceed this annual budget?
b) Of those cases when an expert was retained, at what stage in the proceedings was the expert retained?
14. To how many 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?
(Question 4 of our November 14, 2011 letter to you)
15. 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?
(Question 12 of our November 14, 2011 letter to you)
16. Did your Centre make any exceptions to its policy against providing any legal services to anyone whose case was in the human rights system before Bill 107 went into effect, and ended up at the Tribunal under Bill 107’s transition provisions without the backing of the Human Rights Commission?
(Question 7 of our November 14, 2011 letter to you)
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?
(Question 17 of our November 14, 2011 letter to you)
18. 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?
(Question 22 of our November 14, 2011 letter to you)
19. 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.
(Question 23 of our November 14, 2011 letter to you)
20. 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?
(Question 24 of our November 14, 2011 letter to you)
21. The Pinto Review’s Consultation Paper says it has met with the three human rights agencies (including the Human Rights Legal Support Centre). Please provide us with all information you gave the Pinto Review. Will you also provide us with any other information or submissions you give the Review from now on?
22. Has your Centre offered the public an avenue for having input in advance into the areas which your organization sets as priorities under the Human Rights Code?
(Question 27(e) of our November 14, 2011 letter)
23. Your January 9, 2012 response addressed part of our inquiry regarding cases where a court ordered an applicant to pay the respondent’s court costs in a court challenge to a Human Rights Tribunal ruling:
a) Did your Centre’s paying the costs order against an applicant come out of your Centre’s original budget or did the Government provide added funding to cover these costs orders?
b) 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 consistent 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?
(Question 28(c) and (d) of our November 14, 2011 letter)
We look forward to hearing from you as soon as possible on these matters. Thank you in advance for your assistance. I would appreciate it if you could confirm that you received this email.
Yours sincerely,
David Lepofsky, CM, O.Ont., Chair
Accessibility for Ontarians with Disabilities Act Alliance
cc: Andrew Pinto Chair, Human Rights Review
chair@ontariohumanrightsreview.org
*****
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue
Toronto, Ontario M4G 3E8
New Email Address: aodafeedback@gmail.com
Visit: www.aodalliance.org
January 23, 2012
Michael Gottheil
Executive Chair, Social Justice Tribunals
Social Justice Tribunals Ontario
40 Dundas Street West, Suite #421
Toronto, Ontario M7A 0A9
via email Michael.Gottheil@ontario.ca
Dear Sir,
Re: Independent Review of Bill 107’s Privatizing Human Rights Enforcement in Ontario
Thank you for the information your Tribunal provided to us on December 9, 2011, in response to our November 14, 2011 request, on the operations of the Human Rights Tribunal. We seek further information as a result of our review of the information you have provided.
As we continue to study the information you sent us, further requests for information may come to light. We want to get this request to you as soon as possible, because the Pinto Review imposed very tight time lines on public participation in this mandatory Human Rights Code Review.
Could you please provide the following information in an accessible format as soon as possible:
1. When the Tribunal reported to us on December 9, 2011 about percentage or numbers of Human Rights Tribunal cases in which an applicant is represented, is the Tribunal referring only to cases where an applicant is represented in the Tribunal process from beginning to end, or does it include cases where an applicant may only be represented during part of the proceeding (e.g. where an applicant is represented at the mediation but not represented at a summary dismissal hearing, or not at a hearing on the merits of the application)? If the Tribunal’s data includes applicants who have representation only at some point in the Tribunal process, what is the minimal amount of representation to qualify for inclusion in that data? What percentage of applicants have full representation throughout the process of the Tribunal from beginning to end?
2. We understand that the Human Rights Legal Support Centre has a policy or practice of only agreeing at the start of a case to a partial or limited retainer. As we understand it, the applicant has no assurance at the start of an application to the Tribunal that the Centre will represent them throughout the Tribunal process from beginning to end. The Centre may only agree at the outset to represent an applicant partway through the process. We understand that the Centre will later consider whether it will extend its representation of that client.
Does the Tribunal have a position, policy or practice on the propriety or appropriateness of such limited retainers?
3. The Tribunal has told us that the Tribunal has a policy on timeliness of decisions. May we please have a copy of that policy?
4. Could you please provide a direct response to our question in our November 14, 2011 letter to the Tribunal, concerning the number of times when the Tribunal has exercised its power to override the Statutory Powers Procedure Act. As you know, during the 2006 public debates over Bill 107, we strongly objected to the Government giving your Tribunal the power to make rules that override or conflict with the Statutory Powers Procedure Act. The SPPA includes time-honoured requirements to ensure that Tribunals like the Human Rights Tribunal hold hearings that are fair to all parties.
Evidently relying on the Tribunal’s advice, the Government opted to reject our position back in 2006, and gave the Tribunal the controversial power to override the SPPA. We will be asking the Pinto Review to examine how the Tribunal has used that power over the three and a half years since Bill 107 went into effect. Our aim in seeking this information from the Tribunal in our November 14, 2011 letter was to secure information to help with that discussion.
Your December 9, 2011 disclosures to us do not answer our specific question about how often your Tribunal has attempted to impose in advance some sort of time limits of any kind on witness testimony. In our February 6, 2009 brief on your Tribunal’s activities under Bill 107 to the Legislature’s Standing Committee on Government Agencies, we identified one ruling where the Tribunal did this. We set out an excerpt of that brief at the end of this letter. We are eager to know how often your Tribunal has made such rulings. At some points in your Tribunal’s December 9, 2011 answers to our inquiries, the Tribunal simply pointed us to all the published decisions of your Tribunal. With respect, a volunteer community coalition should not have to read all your Tribunal’s many decisions, to see if we can sift out an answer to this question. Given the centrality of this issue to the Bill 107 debates in 2006, and the direct focus on it at public hearings before the Legislature eight months after Bill 107 went into effect, we would hope and trust that a Tribunal as collegial as yours would be able to readily offer some specifics on this.
In our November 14, 2011 letter to your Tribunal, we asked the following:
“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?”
In your December 9, 2011 response to us, you wrote in material part:
“Neither the Human Rights Code nor the common law principles of procedural fairness permit the HRTO to exclude evidence that is relevant and necessary to the determination of a matter before it. Like the courts, the HRTO may make procedural orders to ensure proceedings are fair, accessible and proportionate, and are resolved in a timely way. This may include orders regarding the number of witnesses, the evidence they will present, and the order in which the evidence is introduced. In managing proceedings, the HRTO will generally seek consensus of the parties or will hear submissions before making such orders.
Like the courts, including the Court of Appeal and the Supreme Court of Canada, the HRTO may assign time limits for submissions.”
5. We are trying to ascertain how many people in the pre-Bill 107 backlog at the Human Rights Commission gave up, rather than taking their own case to the Tribunal, once the Commission could no longer continue with their case due to Bill 107. The Commission has told us how many cases were unresolved when its mandate was brought to and end. However, the Commission could not say how many of those people opted to take their own case to the Tribunal without the Commission’s further involvement. We welcome any help you can provide. The difficulty in discovering this important figure arises from the fact that, as we are now learning, neither the Tribunal, nor the Commission, nor the Human Rights Legal Support Centre are comprehensively tracking the cases under the new Bill 107 regime.
In its January 17, 2012 response to our requests for information, the Commission said this on this specific issue:
“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?
The OHRC has never had the mandate to “publicly prosecute” cases or to “carry cases” on behalf of complainants. Before the Human Rights Code was revised, the OHRC would refer cases to the Tribunal, an adjudicative agency that provides civil (not criminal) remedies. The OHRC was a separate party from the complainant, and while its interests often aligned with those of the complainant, they did not always.
Of the information requested, because transition applications were filed with the HRTO, and not with the OHRC, and complainants had no obligation to advise the OHRC of their actions, the OHRC does not have this information.
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?
Approximately 750 cases remained with the OHRC on June 30, 2009. Each complainant would have been sent three (3) letters advising them of the steps they were to take if they wished to transfer their file.”
6. Can the Tribunal tell us what percentage of applicants appear unrepresented at summary dismissal proceedings at the Tribunal?
7. The Pinto Review’s December 23, 2011 Consultation Paper states that the Review has met with the three human rights agencies whose work it is reviewing. Could you please let us know whom from the Tribunal has met with Mr. Pinto and when. Also, please provide all information that the Tribunal provided to Mr. Pinto.
We look forward to hearing from you as soon as possible on these matters. Thank you in advance for your assistance. I would appreciate it if you could confirm that you received this email.
Yours sincerely,
David Lepofsky, CM, O.Ont., Chair
Accessibility for Ontarians with Disabilities Act Alliance
cc: Andrew Pinto Chair, Human Rights Review
chair@ontariohumanrightsreview.org
David Wright, Associate Chair, Human Rights Tribunal of Ontario
David.a.wright@ontario.cda
*****
EXCERPT FROM THE AODA ALLIANCE’S FEBRUARY 6, 2009 BRIEF TO THE STANDING COMMITTEE ON PUBLIC AGENCIES, HOLDING HEARINGS ON THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
We here bring to the Standing Committee’s attention one Tribunal ruling, under those new Rules of Procedure. It exemplifies the risk of unfairness, when a Tribunal is empowered to disregard the basic requirements of the Statutory Powers Procedure Act. In Persaud v. Toronto District School Board, 2008 HRTO 25, Interim Tribunal Decision May 1, 2008 by Tribunal Vice-Chair Mark Hart, the Tribunal took the extraordinary step, before the hearing had even begun, to dictate to the parties how much time each witness could testify, in chief or in cross-examination. The Tribunal ruled in material part:
“[33] With regard to the parties’ request for 62.5 hearing days, and with all due respect, the estimated length of hearing seems wholly out of proportion to the matters at issue and the scope and extent of evidence that is reasonably required to determine this matter. Bearing in mind the need to fairly and justly, yet also expeditiously, determine this matter what follows below is my estimate of the time which should be required to complete an effective examination-in-chief and cross-examination of the proposed witnesses, which includes the three former personal respondents to the reprisal complaint. These time estimates will not be applied rigidly but, in my view, they are both fair and reasonable. Where further time is requested, I will want to be satisfied that effective use has already been made of the time allotted, what areas of examination remain to be covered and why those areas are relevant to the determination of this matter. I have not included time estimates for any potential expert witnesses, as no determination has yet been made as to whether expert evidence is necessary in this case; and a process was set out on the pre-hearing conference call to make this determination.
Examination-in-chief Cross-Examination
Commission witnesses
Andrew Persaud 1 day 1 day
Raymond Persaud ½ day ½ day
Pat Persaud ½ day ½ day
Natasha Persaud ½ hour ½ hour
Elis Boci 1 hour 1 hour
Arlind Qatapi 1 hour 1 hour
David Bartfai 1 hour 1 hour
Respondent’s witnesses
Suzana Greenaway 1 day 1 day
Paul Corner ½ hour ½ hour
Roy Evely ½ hour ½ hour
Hartley Rosen ½ hour ½ hour
Anthony Masciello ½ hour ½ hour
Heidi Gollert ½ hour ½ hour
Jan Stewart 1½ hours 1½ hours
Sonja Weber ½ hour ½ hour
Anna Serykh 1 hour 1 hour
Chris Nokes 1 hour 1 hour
Andrew Robinson 1 hour 1 hour
Peter Donaldson 1 hour 1 hour
Harold Wright 1 hour 1 hour
Roberta Bergman 1 hour 1 hour
Renata Gonsalves 1 hour 1 hour
Note: The time estimates for the examinations-in-chief of the Commission’s witnesses include examination by both the Commission and the complainant, as do the time estimates for cross-examination of the respondents’ witnesses.
[34] With regard to the remaining witnesses on the lists submitted by the parties, if any party still wishes to call any of these witnesses to give evidence at the hearing, I will want to know who these individuals are and what relevant evidence they have to contribute to this proceeding. In addition, if a party takes issue with the time estimates for the examination of any of the witnesses, the party may provide submissions seeking a modification of the time for examination or cross-examination together with their witness summaries in advance of the hearing.
ORDER
[35] For all of the foregoing reasons, the Tribunal makes the following Order:
…d) by the time the parties are required to serve and file their witness summaries in advance of the hearing, the parties shall serve and file any submissions:
i) regarding why a longer or shorter time for examination or cross-examination may be required for any witness listed on the time estimates set out in paragraph 33 of this decision; and
ii) regarding to any other witnesses any party wishes to call to give evidence, who this witness is, what relevant evidence they have to contribute to this proceeding, how long their evidence is expected to take, and why it is necessary to call their evidence.”
We have no involvement in the specific case in which that Tribunal ruling was made. We express no views on the specifics of that human rights case. However, we point to this ruling as illustrating our concerns with the Tribunal’s Rules of Procedure.
a) We question how the Tribunal can know in advance how long a witness needs to testify in chief to give their core evidence. The Tribunal has not interviewed the witness, is not conducting the case for the discrimination victim or respondent, and doesn’t know all the information that a party to the proceeding nose in order to formulate these assessments.
b) The Tribunal would know even less about how much time would be needed for cross-examination. This difficult part of the trial process is an art, not a science. It is quite often very unpredictable. The cross examiner usually has not had the opportunity to interview the witness, since the witness is being called by the opposing party. Cross examiners must change and adapt their strategies in the middle of cross-examination on a moment’s notice, often without being able to predict this in advance.
c) In this ruling, the same amount of time is given for examination in chief as was given for cross-examination of each witness. Yet quite often, a witness’s evidence in chief can be shorter than in cross-examination. At times, it can be the reverse. This is a very fluid process. It changes as the trial unfolds.
d) This is made even more complicated where, as here, the allocated times must be shared by different parties. If the Tribunal gives the human rights commission and the complainant a total of one hour for examining a witness, which they must share, that places these two parties in the difficult position of potentially having to wrestle over that limited time. The examination in chief might not unfold as expected. Witnesses often testify differently in chief from what was expected when the witness was being prepared for testimony by the party calling them.
e) The Tribunal may have been trying to accommodate these concerns by leaving it open to the parties to ask for an extension of the time allocated to them. However, the ruling requires a party seeking an extension, to first show that they made effective use of the time allocated to them, before they can get an extension. Yet by this approach, the party questioning the witness will not know whether they will get an extension until they have used all or most of the time allocated to them. This places them in a hopeless Catch-22. They won’t know if they will get that extension until it is too late.
Under the SPPA, the Tribunal has the power to stop questioning of a witness that is irrelevant or unduly repetitious. This should be sufficient to prevent the kinds of problems that the Tribunal seems to be trying to address, without sacrificing the hearing’s fundamental fairness.
*****
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue
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January 23, 2012
To: Barbara Hall, Chief Commissioner,
Ontario Human Rights Commission
180 Dundas Street West, 8th Floor
Toronto Ontario
M7A 2R9
Via Email Barbara.hall@ohrc.on.ca
Dear Ms. Hall,
Re: Independent Review of Bill 107’s Privatizing Human Rights Enforcement in Ontario
Thank you for the information the Commission sent us on January 17, 2012, in response to our November 14, 2011 request, on the operations of the Ontario Human Rights Commission. We seek further information as a result of the disclosures you provided. As we continue to study the information you have sent us, further requests for information may come to light. We want to get this request to you as soon as possible, because the Pinto Review imposed very tight time lines on public participation in this mandatory Human Rights Code Review.
Could you please provide the following information in an accessible format as soon as possible:
1. We would appreciate knowing how many formal inquiries the Commission has launched, as requested in our November 14, 2011 letter. In your January 17, 2012 response, you list areas that the Commission’s Public Interest Inquiries Branch is “working on.” We are eager to know if full inquiries in any or all of these have been launched under s. 29 of Bill 107. If so, which of the Commission’s powers under Bill 107 for such inquiries have been used, including the power to secure access to potential evidence?
Your January 17, 2012 response states:
“8. How many Commission-initiated inquiries have been launched under s. 29.i 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?
The Public Interest Inquiries Branch has been working on a number of public-interest issues since the Human Rights Code Amendment Act, 2006, took effect including:
• discriminatory housing advertisements;
• mental health (including inquiries dealing with mental health and housing, mental health in employment and mental health in the provision of services including healthcare services);
• licensing/zoning bylaws dealing with housing in various municipalities in Ontario, including Oshawa, North Bay, Toronto, Waterloo, Guelph and Smith Falls;
• the Toronto Police Services Board;
• the Windsor Police Services Board; and,
• transit: Grand River.”
2. Thank you for identifying the cases where the Commission has intervened in the Tribunal proceedings brought by individual applicants. In how many cases, if any, has the Commission applied to intervene but the tribunal refused to permit the Commission to intervene? In how many cases, if any, did the Tribunal restrict the extent of the Commission’s participation as an intervener as compared to the level of participation that the Commission requested?
3. The Commission indicates that it has discussed with the Ontario Government the Government’s failure to establish within the Commission both the promised Disability Rights Secretariat and the Anti-Racism Secretariat. What has the Government said in response? For example, what has the Government said on when it will establish these Secretariats and on the topic of why they have not been established to date?
4. We understand that as Bill 107 went into effect, the Commission launched a strategy to try to resolve as much of its pre-Bill 107 backlog as it could, as quickly as possible before the Commission’s pre-Bill 107 mandate expired. Could you please let us know:
a) What procedures and strategies the Commission used to try to address all those cases.
b) What additional funding the Commission obtained, if any, to address that transitional task and
c) The Commission’s assessment of how effective this Commission initiative was at fairly and expeditiously attempting to resolve those cases.
We look forward to hearing from you as soon as possible on these matters. Thank you in advance for your assistance. I would appreciate it if you could confirm that you received this email.
Yours sincerely,
David Lepofsky, CM, O.Ont., Chair
Accessibility for Ontarians with Disabilities Act Alliance
cc: Andrew Pinto Chair, Human Rights Review
chair@ontariohumanrightsreview.org
*****
The Hon. John Gerretsen Via Email Only
Attorney General of Ontario
Ministry of the Attorney General
11th Floor
720 Bay Street
Toronto, Ontario
M5G 2K1
Dear Hon. Minister Gerretsen:
Re: Annual Reports of the Human Rights Legal Support Centre
I am writing on behalf of the Metro Toronto Chinese & Southeast Asian Legal Clinic, a community based legal clinic which provides free legal services to low income, non-English speaking clients of Toronto’s Chinese and Southeast Asian communities. Established in 1987, our clinic has served tens of thousands of low income Ontarians in various areas of law including poverty law, immigration law and human rights law.
The Ontario Government has recently appointed Mr. Andrew Pinto to review the Ontario system for enforcing human rights (the Review) in this province. We have written to your predecessor, the Honourable Chris Bentley about our concerns with respect to the choice of the reviewer. We respect Mr. Pinto’s commitment to the community and his expertise in human rights, but question his impartiality vis-à-vis the review given his public support for Bill 107, the Bill which created the new human rights system. Notwithstanding our concerns, our clinic is committed to participating in the Review by providing our submissions to Mr. Pinto in order to help make our human rights system effective and accessible.
To that end, we are working with a number of organizations from the racialized communities and those working with people with disabilities across the province. To help our clinic and our communities fully prepare to give the Review our input, we and others have asked the three pillars of the human rights system to provide us with information about their work.
Through our community partners, we have received answers to some of our questions from the Human Rights Tribunal, the Human Rights Commission as well as the Human Rights Legal Support Centre. The Human Rights Legal Support Centre was asked, among other things, to disclose copies of any annual reports that it has prepared. It has not done so.
The Human Rights Legal Support Centre has advised that it has produced a series of annual reports for each year of its operations, as the Human Rights Code requires, and has submitted them to your Ministry. We gather that your Ministry has not made them public.
We are therefore writing to request that you immediately release the annual reports of the Legal Support Centre in accessible formats (not PDF) so that the information can become immediately available to the public. Such information would be crucial in allowing the public to meaningfully participate in the Review of the human rights system as a whole.
It is very important for all of the human rights agencies that operate the human rights enforcement system in Ontario to be fully open, transparent, and accountable to the public. It should not be necessary to file a Freedom of Information application to get access to this information about which the public has a compelling right to know.
We are eager to know why your Ministry has not made these annual reports public until now. It is important to receive this information immediately, because Mr. Pinto has set very tight timelines to receive public input. That the Consultation Paper for the Review (with its deadlines for participating) was released on December 23, 2011, the very eve of the December holidays, when many are heading off on holidays also did not help. Many community groups are not even aware that the Review has begun, let alone the timelines for making submissions.
We thank you for your assistance and we look forward to seeing the reports and receiving your prompt response.
Yours truly,
Avvy Yao-Yao Go
Clinic Director
Barrister & Solicitor
cc. Michael Gottheil, Executive Chair, Social Justice Tribunal
Barbara Hall, Chief Commissioner, Ontario Human Rights Commission
Kathy Laird, Executive Director, Human Rights Legal Support Centre
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