PINTO REVIEW BELATEDLY SETS TIMES AND LOCATIONS FOR PUBLIC FORUMS, WRONGLY CANCELS THUNDER BAY FORUM AND FINALLY EXTENDS DEADLINE TO SIGN UP FOR A STAKEHOLDER MEETING — GIVE US FEEDBACK ON OUR DRAFT RECOMMENDATIONS FOR OUR BRIEF TO THE PINTO REVIEW
February 7, 2012
SUMMARY
1. What’s Going On at the Pinto Ontario Human Rights Code Review?
There seems to be real disorganization, poor planning and grossly inadequate outreach to the public at the Andrew Pinto Independent Review of Ontario’s system for enforcing human rights. In our many years of experience with public consultations on different issues, we and our predecessor coalition, the Ontarians with Disabilities Act Committee, have never encountered a situation quite like this. Taken together, this calls into question how interested the Pinto Review is in hearing from the public.
* The Pinto Review has still not responded to our January 9, 2012 letter. That letter sets out our earlier, serious concerns about the Pinto Review’s plans for conducting this independent review of Ontario’s human rights enforcement system. That letter is available at https://www.aodaalliance.org/strong-effective-aoda/0109022012.asp
* Until the afternoon of February 7, 2012, we and the public could not tell if the Pinto Review was going ahead with its public forums or hearings around Ontario that it said would be next week. We had urged the Pinto Review to delay them for two reasons. First, the Pinto Review had inadequately publicized them. Second, the Government has still not released important information that people need to properly and effectively make presentations at the public forums.
The Pinto Review earlier said that it would post the dates and times of those public forums in January. As of early February, 2012, they had still not been posted.
On the afternoon of February 7, 2012, with only six days to go before these public hearings begin, the Pinto Review has belatedly posted on its website where and when those public hearings will take place on the dates and in the cities it listed on its website. These are set out at the end of this update, included in the key part of the Pinto Review’s website posting on point. We are unaware of any other steps that the Pinto Review has taken to let the public generally know about these times and locations, beyond posting them on its website. The Pinto Review did not directly notify us of this information. We found it ourselves.
This very late announcement of times and locations for these forums can present barriers for persons with disabilities who may wish to attend, either to make a presentation or to observe the presentations of others. We have caution the Government time and again that persons with disabilities need ample advance notice, to arrange accessible transportation and make any other arrangements necessary, to enable them to attend such events.
* In this new web posting the Pinto Review announces that it is cancelling its planned public forum in Thunder Bay due to low numbers of people asking to make a presentation. We do not believe that there is a lack of interest in the effectiveness of Ontario’s human rights enforcement system in Thunder Bay and northwest Ontario. On August 10, 2006, a full day of public hearings on Bill 107 was held in Thunder Bay, including presenters who voiced concerns about Bill 107. Visit https://www.aodaalliance.org/reform/default.asp
The Pinto Review should not cancel the Thunder Bay public forum. It should instead extend the deadline to sign up for it, and re-schedule it for a date in March.
It is hardly surprising that there has been a low response to the Pinto Review’s very minimal publicity of these public forums. The Pinto Review announced the public forums’ dates and cities back on the eve of the December holidays. That is a standard Government tactic for ensuring that the announcement is overlooked by many.
* The Pinto Review was supposed to hold stakeholder meetings last week. We have not heard if any took place. We have not heard back on our request for a stakeholder meeting, or for our request that it be pushed back one month.
* The new February 7, 2012 posting on the Pinto Review’s website announces that it has extended to February 27, 2012 its deadline for signing up for a stakeholder meeting with the Pinto Review. Again, beyond posting this on its website, we have no indication that the Pinto Review has taken any other steps to let the public know that it extended this deadline. Unless members of the public are daily checking the Pinto Review website, they could well think that the Review’s January 23, 2012 deadline for signing up for a stakeholder meeting still stands. We doubt that people are daily checking in to the Pinto Review website.
We had earlier urged the Pinto Review to extend the deadline for signing up for stakeholder meetings or the public forums. The Pinto Review did not notify us that it had decided to do so. Its commendably extending the deadline for signing up for stakeholder meetings and for the public forums, shows that the initial deadlines were inappropriate.
* Avvy Go of the Metro Chinese and Southeast Asian Legal Clinic has filed a Freedom of Information request to get copies of all of the Annual Reports of the Ontario Human Rights Legal Support Centre. The Centre has only made public one of its Annual Reports. That Report included information that raises serious concerns about Ontario’s human rights enforcement system. See https://www.aodaalliance.org/strong-effective-aoda/02012012.asp
* We have learned from the Human Rights Legal Support Centre that even the Pinto Human Rights Code Review does not have the other Annual Reports of the Centre. These are important documents for the Review to consider, in assessing how the current human rights enforcement system is working. It is very troubling that someone should have to go to the length of filing a Freedom of Information Act request, to get such documents that the public should have been able to see years ago.
* In light of the controversial events surround the passage of Bill 107 six years ago we would have hoped that the McGuinty Government would ensure this time that there is a fairer, more open process for giving public input. In 2006, the McGuinty Government promised that everyone who wanted to present their views on Bill 107 could do so at public hearings at a Standing Committee of the Legislature. Yet as public criticism of Bill 107 mounted the McGuinty Government took the controversial step on November 21, 2006 of invoking closure, to cancel continued public hearings that it had promised, advertised and scheduled. See https://www.aodaalliance.org/reform/update-112106b.asp
That closure motion was widely condemned, including by the Ontario Human Rights Commission https://www.aodaalliance.org/reform/update-112106b.asp and the Toronto Star https://www.aodaalliance.org/reform/update-112306.asp .
2. We Welcome Your Feedback on Key Points and Recommendations for our Brief to the Pinto Review
Amidst all this confusion and uncertainty surrounding the Pinto Human Rights Review, we are doing our best to put together our brief to the Pinto Review. Here is a list of key points and key recommendations we are considering raising in our brief. These are only in draft form.
Send your feedback to us at: aodafeedback@gmail.com
We cannot finalize our brief until we get all the information we requested from the Human Rights Commission, Human Rights Legal Support Centre and Human Rights Tribunal. We are still waiting for some of that information. We are also busy analyzing the information we have received.
To help you consider our ideas below, we set out at the end of this update a brief explanation of how Bill 107 dramatically changed the way that you can enforce your human rights in Ontario.
a) DRAFT KEY POINTS ABOUT THE SYSTEM FOR ENFORCING HUMAN RIGHTS IN ONTARIO UNDER BILL 107
1. The McGuinty Government has broken several of the commitments it made when it enacted Bill 107 back in 2006. Those commitments are listed and documented at https://www.aodaalliance.org/strong-effective-aoda/07022008-3.asp . For example, the Government has broken its 2006 promise that under Bill 107 every human rights applicant would have a free publicly-funded lawyer to represent them throughout the proceedings at the Human Rights Tribunal.
2. The Human Rights Legal Support Centre has in effect become Ontario’s new Human Rights Commission, but without the safeguards, accountability and public oversight that applied to the Human Rights Commission.
3. The Human Rights Legal Support Centre’s criteria for choosing clients raise serious concerns.
4. There is cause for concern about how human rights complainants were treated whose cases were in the Human Rights Commission backlog when Bill 107 went into operation on June 30, 2008.
5. There is a pressing need to restore to discrimination victims the option of having their case publicly investigated and, where the evidence warrants, publicly prosecuted by the Human Rights Commission. It is necessary for the Commission to have in place processes to ensure that it more quickly addresses each case, and is more willing to take cases to the Tribunal.
6. The Human Rights Commission has not made effective use of its power to bring its own human rights applications to the Human Rights Tribunal, to combat problems like systemic discrimination. It also needs its full pre-Bill 107 powers restored to it to enable it to most effectively combat discrimination via Commission-initiated human rights applications.
7. The Human Rights Commission needs broader power to intervene in human rights cases brought to the Human Rights Tribunal by individuals, and needs to intervene in those cases far more frequently.
8. Ontario now does not have an effective system for effectively ensuring that orders of the Human Rights Tribunal and settlement agreements under the Human Rights Code are publicly monitored and enforced.
9. There need to be stronger measures to ensure that the Human Rights Tribunal is following policies on human rights that the Human Rights Commission establishes.
10. Additional measures are needed to better ensure that in human rights cases, the public interest is represented by a public human rights agency that is mandated to represent the public, and not merely individual clients, to help ensure that public interest remedies are included in Human Rights Tribunal rulings and negotiated settlement agreements.
11. It is inexcusable that over six years after Bill 107 was passed, the Ontario Government has still not established within the Human Rights Commission the promised Disability Rights Secretariat and the Anti-Racism Secretariat. Even as mandated in Bill 107, those Secretariats were very weak, and need to have their mandates and powers strengthened.
12. There remains serious concern about the fact that the Human Rights Tribunal has the power to make rules of procedure that violate the fair hearing guarantees in the Statutory Powers Procedure Act.
13. Problems have been reported with the accessibility of the Human Rights Tribunal’s on-line application forms for people who use adaptive technology to access the internet.
14. The unelected Human Rights Tribunal has taken on itself the role of setting the standard for deciding when a case should not get a full hearing on the merits. Only the Legislature should be deciding this, in legislation.
15. Safeguards are needed to ensure that the Human Rights Tribunal renders decisions promptly, and without undue delay.
16. This Review has no mandate to consider empowering the Human Rights Tribunal to order a losing party at the Tribunal to pay the winning party’s legal costs. If anything, under Bill 107, discrimination victims now face an unjustified enhanced exposure to paying their opponents’ court costs.
17. Ontario needs an independent, arms-length process for screening appointments to the Human Rights Commission, Human Rights Tribunal and Human Rights Legal Support Centre, based solely on merit.
18. There is an ongoing need for future Independent Reviews of Ontario’s system for enforcing human rights.
b) DRAFT RECOMMENDATIONS WE ARE CONSIDERING PRESENTING TO THE PINTO REVIEW
1. The Human Rights Code should be amended to:
a) set out an explicit entitlement of all applicants to free publicly-funded lawyer throughout the Tribunal process; and
b) require the Government to take all necessary steps to ensure that it keeps its promise of free publicly-funded counsel for all applicants at the Tribunal throughout the Tribunal process;
c) require the Human Rights Tribunal to keep and annually make public accurate, current and comprehensive data on:
a) the percentages of cases and at what stages of cases applicants are unrepresented;
b) in what percentage of cases and at what stages of cases are respondents unrepresented
c) the rates at which applicants or respondents succeed in applications or in mediations or procedural motions relative to their being represented or unrepresented.
2. The Human Rights Legal Support Centre should be required to post on its website monthly reports on the delays or other difficulties of getting through on the phone, including the numbers of persons unable to get through, and the average wait time.
3. The Government should provide increased funding for legal representation of applicants at the Human Rights Tribunal, through a grant program open to a wide range of service providers, akin to the former federal Charter Court Challenges Program, to be administered by an arms-length selection committee appointed by a non-partisan authority.
4. The Code should be amended to empower the Human Rights Tribunal to order the Human Rights Legal Support Centre to provide legal representation to an unrepresented applicant.
5. The Code should be amended to forbid the Human Rights Legal Support Centre from agreeing to represent an applicant only on a limited-retainer basis that would enable the Centre to refuse to continue representing an applicant throughout an application, with the exception of circumstances where there is an insoluble dispute between lawyer and client or other ethical impediment to the Legal Support Centre continuing to represent that applicant.
6. The Code should be amended to make the position of the executive director of the Human Rights Legal Support Centre a term position, with the appointment subject to the same legislative oversight as applies to the Chief Commissioner of the Ontario Human Rights Commission.
7. The Code should be amended to provide for much more public accountability of the Human Rights Legal Support Centre, including, for example:
a) requiring that the Human Rights Legal Support Centre’s annual report and annual audited financial statements be promptly made public once delivered to the Government;
b) requiring the minutes of the board of directors of the Human Rights Legal Support Centre be made public, except for information protected by solicitor client privilege or other privacy legislation;
c) expanding the mandatory size of the board of directors of the Human Rights Legal Support Centre, and setting a minimum quorum for the board not to be less than 75% of its members;
d) requiring the Human Rights Legal Support Centre to establish procedures to ensure that there is ongoing public input and public monitoring by equality seeking groups of its activities.
8. This Review should make a clear finding that it is unfair for victims of discrimination to have to navigate the procedures and proceedings of the Human Rights Tribunal without proper legal representation throughout, particularly when the respondent is represented by legal counsel.
9. The Code should be amended to require that the Human Rights Legal Support Centre not use as criteria for eligibility for its services the Centre’s view of:
a) whether the applicant could represent themselves; or
b) whether the applicant is disadvantaged; or
c) the applicant’s income or resources.
10. This Review should carefully investigate and report on the plight of those who were caught up in the pre-Bill 107 backlog, and the transition process that was implemented under Bill 107, including the refusal of the Human Rights Legal Support Centre to serve anyone caught up in that transition.
11. This Review should find that it was inappropriate for the Human Rights Legal Support Centre to refuse to provide legal services to those who, during the transition, ended up at the Human Rights Tribunal without the Human Rights Commission having carriage of their case.
12. As an option or an alternative to an applicant investigating and presenting their own case at the Human Rights Tribunal, the Code should be amended to restore to human rights applicants/complainants the right (if they choose this route) to bring their application to the Human Rights Commission for a public investigation and, where evidence warrants, a public prosecution of the case. For example, an applicant might be given the option within a short specified time after an incident to request a Commission investigation, with the Commission to deliver an investigation report by a specified deadline e.g. within 90 days, and with the applicant thereafter to have the option of taking the case to the Commission for a consideration of a public prosecution of it, or taking their own case directly to the Tribunal through Bill 107’s current regime.
13. The Code should be amended to restore to the Commission its investigation powers to handle these individual cases.
14. The Commission’s funding should be restored to enable it to investigate and publicly prosecute cases that individual choose to bring to the Commission, as an alternative to investigating and prosecuting their own case at the Tribunal.
15. The Code should be amended to provide that if the Legislature restores to the Human Rights Commission the power to investigate and publicly prosecute a human rights case that an individual chooses to bring to the Commission, the Commission should refer the case to the Human Rights Tribunal for a hearing, with the Commission having carriage of the case, if the Commission’s investigation doesn’t show that the applicant’s case is false.
16. The Code and the policies and practices of the Human Rights Commission should be amended, to ensure that the Commission devotes a clear majority of its resources towards litigating public interest and systemic discrimination cases, and to ensure that the Commission brings a substantial number of public-interest systemic discrimination applications each year, supported by proper investigations.
17. The Code and the Human Rights Commission’s policies and practices should be amended to ensure that the Commission has an open, accountable and accessible process by which individuals and community organisations can ask the Commission to initiate a public-interest application. The Commission should be required to consider any such request, and to answer it within a designated time.
18. The Code should be amended to restore the Human Rights Commission’s pre-Bill 107 investigation powers for investigating Commission-initiated applications.
19. Section 45.3 of the Code should be amended to restore to the pre-Bill 107 state, the full range of remedies that the Human Rights Commission can obtain from the Tribunal when the Commission initiates its own application.
20. The Code should be amended to give the Human Rights Commission the right to intervene in any Tribunal proceeding at any stage, to take full part in the proceeding, including calling evidence, making full argument on any issue, and seeking public interest remedies, and giving the Commission the a right to apply to court for judicial review of the Tribunal decision.
21. The Code should be amended to:
a) allow an applicant to register a settlement agreement under the Code with the Human Rights Tribunal;
b) expand the mandate of the Human Rights Commission to include monitoring compliance with Tribunal orders and with settlements that are registered with the Tribunal, and to include enforcement of those orders or settlements where there is a breach of them;
c) give the Commission the investigative powers needed to serve that function.
22. The Code should be amended to provide that in deciding a case, the Human Rights tribunal shall apply and follow policies published by the Human Rights Commission unless a party convinces the Tribunal that the Commission’s policy is legally erroneous.
23. The Human Rights Tribunal and Human Rights Commission should be required to track and annually report to the public on the instances when a party asks the Tribunal to adopt or follow a policy of the Commission, and whether and to what extent the Tribunal does so.
24. The Review should recommend amendments to the Human Rights Code to strengthen the imposition of public-interest remedies including:
a) a substantially expanded role of the Human Rights Commission as intervener at Tribunal hearings; and
b) restoration of the opportunity of human rights applicants to seek to have the Human Rights Commission investigate and publicly prosecute their case, as dealt with further below.
25. The Ontario Government should immediately issue the necessary orders or directions to establish the Disability Rights and Anti-racism Secretariats at the Human Rights Commission as ss. 31.3 and 31.4 of the Code require.
26. The Code should be amended to:
a) expand the mandate of the Disability Rights Secretariat and Anti-Racism Secretariats to include the public investigation, conciliation and public prosecution of disability complaints under the Code, whether or not they are definable as systemic cases;
b) confer on the Secretariats at least as much power to investigate, conciliate and prosecute cases as the Commission enjoyed under the Code before Bill 107;
c) provide that the members of the Secretariats shall be appointed by the same independent merit-based selection process as is proposed for appointment of Commissioners; and
d) require that the Secretariats be provided sufficient staffing and funding to fulfill their mandate.
27. The Code should be amended to repeal the Human Rights Tribunal’s power to override the Statutory Powers Procedure Act.
28. The Human Rights Tribunal should take steps to ensure that all of its web materials, including its on-line application forms, are fully accessible to persons with disabilities including those who use adaptive technology to navigate on the internet. For example, the Tribunal should:
a) retain a qualified independent outside consultant with expertise in information technology accessibility to audit the Tribunal’s website including its on-line forms;
b) make public any report and recommendations received;
c) promptly implement any corrective measures that are proposed; and
d) have a group of independent individuals with disabilities who use adaptive technology to access the web test out the Tribunal’s website, including its on-line forms, once any recommended corrective actions are taken.
29. The Code should be amended to provide that only the Code itself, and not the Human Rights Tribunal’s rules, can govern any “gatekeeping” by the Tribunal, screening out cases before they are fully heard on the merits.
30. The Code should be amended to:
a) require that the Human Rights Tribunal render any interim ruling within 60 days for any interim decision and 90 days for any final ruling;
b) where a member of the Tribunal does not comply with a time line for a decision, the chair of the Tribunal or the Chair of the Social Justice Tribunal should be immediately notified and required to take steps to ensure that the decision is rendered promptly; and
c) until the delayed decision is rendered, the Tribunal should assign no further cases to that member of the Tribunal.
31. The Code should not be amended to permit the ordering of costs by the Human Rights Tribunal.
32. The Code should be amended to prohibit the Human Rights Tribunal from making a rule or decision that would permit the ordering of costs in Tribunal hearings.
33. The Code should be amended to provide that no court shall order a complainant to pay court legal costs of a respondent in an appeal or judicial review application unless the complainant’s position in that court proceeding was frivolous, vexatious, advanced in bad faith.
34. In any case where the Human Rights Legal Support Centre represents an applicant at the Human Rights Tribunal, the Centre should be required to cover the legal costs of any respondent in the case where the applicant is successful at the Tribunal and the respondent takes the case to Court on judicial review, succeeds in Court, and gets a cost order against the applicant.
35. The Code should be amended to establish an arms-length, non-partisan body with input from all political parties, whose membership is to be selected by the Chief Justice of Ontario, to screen appointments to the Human Rights Tribunal, Human Rights Commission and the board of directors and executive director of the Human Rights Legal Support Centre based solely on merit and expertise.
36. The Code should be amended to require that every four years, starting with the issuance of the final report of this Review, the Government should appoint an Independent Review of the system for enforcing human rights in Ontario. The Independent Review should be required to hold open, accessible public consultations. Even if the Code is not amended to require this, the Government should commit to holding such Reviews.
c) How Bill 107 Changed the Enforcement of Human Rights in Ontario
The Ontario Human Rights Code bans discrimination in Ontario in access to employment, housing, goods, services and facilities, on grounds like sex, disability, race, religion, and sexual orientation. Before Bill 107, if you felt you had been the victim of discrimination contrary to the Ontario Human Rights Code, you could file a complaint of discrimination with the Ontario Human Rights Commission. It was required to publicly investigate your case, and to try to negotiate a voluntary settlement of the case with the respondent (the party accused of discrimination).
If the Commission couldn’t resolve the case, and thought the evidence warranted a full hearing on it, it could refer the case to the Human Rights Tribunal for a full hearing. At the Tribunal, the Human Rights Commission had carriage of the case. In other words, it acted like a public prosecutor.
In 2006, amidst much controversy, Bill 107 privatized the enforcement of human rights in Ontario. It took away from discrimination victims their decades-old right to have non-frivolous discrimination complaints publicly investigated by the Ontario Human Rights Commission, and to have the Human Rights Commission publicly prosecute them before the Human Rights Tribunal, where the evidence warrants it.
Under Bill 107, discrimination victims now have to themselves privately investigate and prosecute their own cases before the Human Rights Tribunal. Bill 107 set up a new Human Rights Legal Support Centre to advise and represent discrimination victims. However a very troubling percentage of people who call that Centre either cannot get through on the phone, or have not been given full representation at the Human Rights Tribunal. To learn more about why the AODA Alliance and so many others opposed Bill 107 back in 2006, visit https://www.aodaalliance.org/reform/default.asp
d) The Pinto Review’s February 7, 2012 Website Posting on the Specifics of Its Public Forums and Extending the Deadline to Sign up for Stakeholder Meetings
The following was posted on the Pinto Review website on February 7, 2012:
Full posting at http://www.ontariohumanrightsreview.org/how-to-participate
2. Participation in a Public Meeting
The Review will proceed with public meetings in the locations specified at the dates, times and locations indicated below. However, the Thunder Bay meeting will not proceed due to low demand. If you are from the Thunder Bay area and still wish to participate in the Review please contact the Review and an alternative means of participation may be arranged.
For those individuals and organizations that have already made a request to make an oral presentation at a public meeting, the Review is in the process of confirming your participation.
The public meetings in Toronto on February 15 and 24 will take place in a conference room. The public meetings in Windsor, London, Ottawa and Sudbury will be set up to facilitate all attendees (participants and observers) seated around a table. If you wish to attend such a meeting, please notify the Review if you have any accommodation requirements (if you have not done so already).
There are still opportunities to make a presentation to the Review at one of the below public meetings. If you have missed the initial deadline of January 23, 2012 but still wish to present at one of the public meetings, please contact the Review as soon as possible and you shall be notified if your participation can still be accommodated.
Windsor – February 13, 10:00 a.m. – 1:00 p.m.
Hilton Windsor
277 Riverside Drive West,
Windsor, Ontario
Huron Room
(519) 973-5555
London – February 14, 10:00 a.m. – 1:00 p.m.
Best Western Plus, Lamplighter Inn and Conference Centre,
591 Wellington Road,
London, Ontario
Key Largo Room
(519) 681-7151
Toronto – February 15, 9:30 a.m. – 5:00 p.m.
Chestnut Residence and Conference Centre,
University of Toronto,
89 Chestnut Street, Toronto, Ontario
Terrace Room
(416) 977-0707
Ottawa – February 16, 10:00 a.m. – 1:00 p.m.
Travelodge Ottawa Hotel & Conference Centre,
1376 Carling Avenue,
Ottawa, Ontario
Ottawa Room
(613) 722-7601
Sudbury – February 21, 10:00 a.m. – 1:00 p.m.
Howard Johnson Plaza Sudbury,
50 Brady Street,
Sudbury, Ontario
Suite 134 Boardroom
(705) 675-5602
Toronto – February 24 9:30 a.m. – 5:00 p.m.
Chestnut Residence and Conference Centre,
University of Toronto,
89 Chestnut Street, Toronto, Ontario
Terrace Room
(416) 977-0707
To make a presentation at a public meeting, please contact the Review by email at chair@ontariohumanrightsreview.org or by fax to (416) 593-4923 and provide the following information:
• Name
• Organization you are associated with, if any
• E-mail address
• Phone
• City that you wish to attend
• Morning or afternoon session
• Accommodation requirements, if any
Individual presenters will be limited to 10 minutes and organizations will be limited to 15 minutes. Depending on demand, you may not be allocated a time slot. Your participation will be confirmed at the contact information that you provide.
3. Participation in a Stakeholder Meeting
The Review has extended the deadline for stakeholder meeting requests to February 27, 2012. If you are a group or organization, please submit a detailed proposal to request a stakeholder meeting. The proposal should outline the nature and background of the organization, and its interest and/or experience with the human rights system, its constituency, and the specific areas that it proposes to discuss concerning the Review.
For those groups or organizations that have already submitted a request for a stakeholder meeting, the Review is in the process of either scheduling or conducting stakeholder meetings.
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