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What is the Future for Enforcing Human Rights in Ontario?

July 13, 2011

SUMMARY

In the October Ontario election, an important issue for persons with disabilities will be the future of the enforcement of the Ontario Human Rights Code. The Human Rights Code makes it illegal to discriminate against a person because of such things as his or her disability, in areas like employment, housing, and access to goods, services and facilities. This election issue concerns what you will have to do to enforce your human rights, if you feel you were the victim of a barrier that violates the Human Rights Code.

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

Here are some recent developments on this front:

1. The McGuinty Government’s Position

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

In 2006, we were unfairly blocked from being able to present our concerns at public hearings on that bill 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

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

One of the few amendments we won in the Bill 107 debate was a requirement that there be an Independent Review of Bill 107 after four years. That four-year deadline was reached on June 30, 2011. To date, we have no word that the McGuinty Government has appointed anyone to conduct that review.

An excellent letter was sent to the McGuinty Government some weeks ago on the topic of this Independent Review, by Ms. Avvy Go, Director of the Metro Toronto Chinese and Southeast Asian Legal Clinic. We commend that letter. It is set out below.

We understand from Ms. Go that in responses she has received to date from the McGuinty Government, it is evident that the Government has not yet appointed someone to conduct this Independent Review. No decisions have been finalized, though a suggestion was made to Ms. Go that it is expected to be “soon”. We at the AODA Alliance have not heard from the Government about this Independent Review.

It was important for the Government to appoint this Independent Review, and to do it by the mandatory deadline that the Human Rights Code requires. The Government has no excuse for failing to meet that legal deadline.

It is also important for this Independent Review to be open, accessible, and fully independent of the Government. We need a full and fair opportunity to comment on whether Bill 107 has lived up to its stated goals, or whether it has set back the cause of full protection in Ontario for human rights. We need that Independent Review to conduct open, accessible public hearings that are not invitation-only, so that anyone who wishes can present their views in person. To see what the McGuinty Government promised under Bill 107’s new regime for enforcing human rights, visit: http://www.aodaalliance.org/strong-effective-aoda/07022008-3.asp

To see how seriously Bill 107 was not living up to those commitments as of February, 2009, visit: http://www.aodaalliance.org/strong-effective-aoda/02122009.asp

2. The Ontario Conservative Party Policy Position

In 2006, the Conservative Party, like the New Democratic Party, supported our opposition to Bill 107 and its privatization of human rights enforcement. In the 2007 election, both the Conservatives and the New Democrats committed to us that if elected, they would repeal Bill 107. They each supported a strong public enforcement system for human rights in Ontario.

Since then, Tim Hudak has become the leader of the Conservative Party. In his party’s leadership race two years ago, he committed to abolish the Human Rights Tribunal, with a view to having human rights cases being taken to court. We do not support the elimination of that Tribunal. While that Tribunal has issues that need to be addressed, abolishing it would be a serious setback for people with disabilities.

Two months ago, on April 24, 2011 Mr. Hudak announced that his party would instead reform the Human Rights Tribunal rather than eliminating it. His April 24, 2011 news release stated in part: “Hudak also outlined the ways an Ontario PC government would restore faith in Ontario’s justice system by reforming the Human Rights Tribunal to ensure it protects victims of genuine discrimination and harassment effectively and efficiently. While Ontario’s human rights bureaucracy has grown 75 percent under Dalton McGuinty, the backlog of human rights cases has grown to almost 4,000.”

It also stated:

“Ontario is a fair and tolerant society. But when there are cases of genuine discrimination and harassment, Ontario needs a fair and balanced system that provides justice that people can have faith in.”
— Tim Hudak, Ontario PC Leader

In addition, it stated:

“Hudak committed to reform the Ontario’s Human Rights System by:

* Empowering the Tribunal to dismiss frivolous applications at a preliminary stage by restoring the former provisions of the Ontario Human Rights Code.

* Reforming the Tribunal’s rules of evidence to make them more consistent with those required in a court of law.

* Ensuring the Tribunal is making efficient use of tax dollars.”

His speech where he made this announcement included the following:

“We will protect your rights, as well as your pocketbooks – especially those at their most vulnerable.

Ontario is a fair and tolerant society. But when there are cases of genuine discrimination and harassment – Ontario needs a fair and balanced system that provides justice that people can have faith in. A system that provides justice to victims effectively and efficiently. That is not happening today.

For example, the Superior Court recently struck down a decision made by the Ontario’s Human Rights Tribunal that it deemed to be “fatally flawed.” This is a case in which a Mississauga business owner, Maxcine Telfer, was ordered to pay $36,000 to an employee of hers who worked for her for six weeks.

In this one case, the Superior Court found nine examples in which the tribunal adjudicator made legal errors or failed to provide a fair hearing. This includes denying Maxcine Telfer the opportunity to call a key witness.

When you hear about cases like this, it’s clear the system is not working. People lose faith in the system. The changes Dalton McGuinty made in 2008 to the Ontario Human Rights Commission only made the situation worse. The Commission has lost sight of its real job – to protect the vulnerable. Meanwhile, the newly formed Human Rights Tribunal – the body actually that hears the claims – lacks the teeth to root out frivolous claims – resulting in a backlog today of almost 4,000 cases. Victims of genuine discrimination are waiting a year or more to have their case heard. This is wrong.

A PC government will reform Ontario’s Human Rights System to ensure it is fair and balanced for all parties involved and restore faith in the system. We will fix the Ontario Human Rights Tribunal and here’s how we will do it:

* We will empower the Tribunal to dismiss frivolous applications at a preliminary stage by restoring the former provisions of the Ontario Human Rights Code.

* We will create new standards for the Human Rights Tribunal so that the process follows rules similar to those used in our courts.

* We will consult with experts who work in the system to develop ways to improve the quality of legal expertise of Tribunal adjudicators.

* And finally, we will review the Commission and Tribunal to ensure the efficient use of your tax dollars – the same process each and every government agency, board and commission will be subjected to under a PC government.

Too many of the 600-plus government agencies have grown too big, too expensive and too clumsy to deliver the services they were created for. Some, like the Ontario Power Authority, which continues to add to the cost of hydro bills, should be scrapped entirely.”

For our part, we, the AODA Alliance, have voiced concerns about the Human Rights Tribunal’s rules of procedure, and its failure to act on our many recommendations when developing those rules. We have also objected to Bill 107’s exempting the Human Rights Tribunal from the fair hearing requirements enshrined in the Statutory Powers Procedure Act.

We are concerned that the term “fair and balanced” in the announcement quoted here not become a basis for weakening protections that discrimination victims now enjoy.

3. The New Democratic Party Position

To date, we are unaware of any change in the NDP’s earlier strong opposition to Bill 107, and its support for a strong system for public enforcement of human rights.

4. The Future

We will address this issue again as the fall election approaches. It is important to obtain commitments that any reform to the process for enforcing human rights in Ontario will:

* restore to discrimination victims the rights that Bill 107 took away from them,

* significantly strengthen the role and duty of the Human Rights Commission bringing public interest cases, and increase substantially the number of public interest cases that the Human Rights Commission brings, augmented by a fair opportunity for people to propose public interest cases that the Human Rights Commission should launch.

* not take any substantive or procedural rights away from discrimination victims including persons with disabilities.

As always, we welcome your feedback. You can always write to us at: aodafeedback@gmail.com

*****

May 24, 2011

Hon. Christopher Bentley Via Email Only
Attorney General for Ontario
720 Bay Street, 11th Floor
Toronto, Ontario
M7A 2S9

Dear Minister,

Re: Mandatory Independent Review of Ontario’s Human Rights Enforcement System

On behalf of the Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC), I am writing about the Independent Review of human rights enforcement in Ontario that we anticipate will be commencing next month.

As you know, section 57 of Bill 107 requires that the Government of Ontario appoint a statutory Independent Review of the system for enforcing human rights in Ontario, no later than the end of June 2011. Section 57 states:

“Review
57. (1) Three years after the effective date, the Minister shall appoint a person who shall undertake a review of the implementation and effectiveness of the changes resulting from the enactment of that Act.

Public consultations
(1.1) In conducting a review under this section, the person appointed under subsection (1) shall hold public consultations.

Report to Minister
(2) The person appointed under subsection (1) shall prepare a report on his or her findings and submit the report to the Minister within one year of his or her appointment.”

The requirement for this Independent Review was one of the few changes to Bill 107 that the Ontario Government made in response to the serious concerns about that bill from many groups representing equality-seeking groups, particularly those working with racialized communities and persons with disabilities.

As you are well aware, when your predecessor, the Hon. Michael Bryant, brought forward Bill 107 in 2006 to reform the system for human rights enforcement in Ontario, it sparked a major debate among equality-seeking advocates. Some advocates, most notably a group of private bar lawyers, supported the Bill. Many others, including MTCSALC, strongly opposed it. We considered it a set-back for victims of discrimination, as it amounted to the privatization of the enforcement of human rights in this province. After four years’ experience with these reforms, the upcoming Independent Review represents the first and important opportunity to objectively determine whether the reforms have delivered the benefits that Bill 107’s proponents said they would deliver or whether they have generated the problems that Bill 107’s critics foresaw.

A noticeable number of the individuals that the Government has appointed to run the new human rights system were people who either advocated for or supported Bill 107. It is important that the person conducting this Independent Review have no prior link to the reforms, including no link to those who advocated for or against bill 107. It should be a person who is truly independent and who is well-positioned to assess all perspectives, with the requisite expertise in the field of human rights. This would help foster the public’s confidence in the final report of the Review.

As such, we seek a commitment from you that the person selected by the province to conduct this Independent Review will be someone who is independent of, and not tied to either side of the public debate over Bill 107. As well, we seek a commitment that the person conducting the review be fully independent of the Government.

We also are eager to ensure that the consultation process undertaken in the Review will be wide-ranging, open and accessible, while providing a full opportunity for members of the public from all perspectives to share their views, face to face, with the person conducting the Independent Review. Input should not simply be provided in writing or over the internet. This is especially important since when Bill 107 was before the Ontario Legislature in the fall of 2006, your Government first committed to public hearings for all those who wanted to present in person. Yet it then used its majority to impose “closure”, and thereby shut down all previously scheduled public hearings before many of us had a chance to express our views to a Standing Committee of the Legislature.

For this Independent Review to be fully effective, the three public organizations mandated under the Human Rights Code, the Human Rights Commission, the Human Rights Tribunal, and the Human Rights Legal Support Centre, should have promptly made public their annual reports for each and every one of the years in which they have been in operation under the Bill 107 regime.
The Ontario Government should also make public its explanation as to why the Government has not established the Anti-Racism and Disability Rights Secretariats within the Human Rights Commission that it was required to establish under the Bill. At the time, the Ontario Government promoted those two Secretariats as major steps forward in advancing human rights in this province. It is important for the public to know why the Government has not obeyed its own legislation that requires that these bodies be established three years ago next month.

Finally, we would welcome the opportunity to give you direct input on candidates you are considering to conduct this Independent Review, and we look forward to hearing back from you on this issue at your earliest convenience.

Yours truly,

Avvy Yao-Yao Go
Clinic Director
Barrister & Solicitor
Metro Toronto Chinese & Southeast Asian Legal Clinic

cc. The Hon. Dalton McGuinty, Premier of Ontario
Tim Hudak, leader of the Opposition Party of Ontario
Andrea Horwath, leader of the New Democrat Party of Ontario
Ted Chudleigh, MPP
Christine Elliot, MPP
Peter Kormos, MPP
Barbara Hall Chief Commissioner, Ontario Human Rights Commission
David Wright, Acting Chair, Human Rights Tribunal of Ontario
Kathy Laird, Executive Director, Human Rights Legal Support Centre
Debbie Douglas, Executive Director, Ontario Council of Agencies Serving Immigrants
Margaret Parsons, Executive Director, African Canadian Legal Clinic
Shalini Konanur, Executive Director, South Asian Legal Clinic of Ontario
David Lepofsky, Chair, AODA Alliance
Elizabeth Bruckmann, Staff Lawyer, West Toronto Community Legal Services
Cynthia Pay, Staff Lawyer, Parkdale Community Legal Clinic
Michael Kerr, Coordinator, Colour of Poverty Campaign
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