PART I – MANDATE OF THE ONTARIO HUMAN RIGHTS REVIEW
On June 30, 2008, the human rights system in the Province of Ontario fundamentally changed with the full coming into force of the Human Rights Code Amendment Act, 2006. The Act, formerly called Bill 107, became law on December 6, 2006 and, once fully in force, altered the system of human rights enforcement in the province. The most significant changes were that:
1. Human rights applications (formerly called complaints) would be filed directly with the Human Rights Tribunal of Ontario (HRTO), rather than with the Ontario Human Rights Commission (OHRC). The HRTO would be responsible for processing the application, offering mediation services and, where the application still remained unresolved, adjudicating the application on its merits.
2. The Ontario Human Rights Commission (OHRC) would no longer be involved in receiving, processing, mediating, and investigating complaints and, where the Commission considered it appropriate, forwarding them to the HRTO. Instead, the OHRC’s role would be revised to focus on developing policies, providing information and education and promoting compliance with the Code. The OHRC retained its authority to initiate and intervene in applications before the HRTO.
3. A new agency, the Human Rights Legal Support Centre (HRLSC), was created to assist applicants (formerly called complainants) with advice, support and representation in respect of applications before the HRTO.
Section 57 of the revised Human Rights Code required that three years after the new system came into effect, a person would be appointed to review the changes under the new Code. On August 12, 2011, I was appointed by the Honourable Chris Bentley, Attorney General of Ontario, to conduct a review of the Ontario human rights system as required under section 57 of the Ontario Human Rights Code.
Section 57 of the Code provides:
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.
57(2) In conducting a review under this section, the person appointed under subsection (1) shall hold public consultations.
Report to Minister
57(3) 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 Terms of Reference for the Review specify that the Reviewer will consider the following:
• Whether the redesigned Human Rights Tribunal of Ontario (HRTO) is providing quicker and direct access for applicants, and a fair dispute resolution process for all parties, including respondents.
• Whether the new Human Rights Legal Support Centre (HRLSC) is effective in providing information, support, advice, assistance and legal representation for those seeking a remedy before the Human Rights Tribunal of Ontario (HRTO).
• Whether the Ontario Human Rights Commission (OHRC), in its revised role, is proactively addressing systemic human rights issues through activities such as research and monitoring, policy development, and education and training.
• Stakeholder feedback: analyze and qualify perceptions and experiences of key stakeholders, human rights advocates/experts, and the public.
• Where appropriate, the Reviewer will offer advice to the government regarding any best practices that should be supported and any advice for enhancing the effectiveness of Ontario’s human rights system. Any advice developed should be cognizant of the challenging fiscal context for government and should provide corresponding costs and relative benefits.
Upon my appointment, I created a website: www.ontariohumanrightsreview.org, to facilitate the communication of news and developments concerning the human rights review. I indicated that my review would include public consultations on the human rights system, after a period of study and planning. I committed to producing this Consultation Paper which would identify key issues and points for discussion.
My review is independent of government and independent of the three human rights agencies, the HRTO, OHRC and HRLSC. The Ministry of the Attorney General is available to provide me with information on the human rights system or logistical support, but I remain independent of government.
My selection of which issues to examine, the procedural and substantive conduct of the Review (including public consultations), and the content of my final Report will be guided by the feedback I receive during the Review and what is in the best interests of Ontarians.
The human rights system is part of the legal system of the province since it involves administrative agencies that may be held accountable for the fairness and reasonableness of their decisions through principles of administrative law. However, the human rights system involves far more than just the legal system since human rights issues, disputes, and their resolution affect the lives of all Ontarians and resonate in key economic and social sectors such as the workplace, housing or accommodation, retail, social and cultural environments. It would be beyond the scope of any review, particularly one conducted by a single individual with a one-year mandate, to examine all aspects of Ontario’s vast and complex human rights system.
It is important, therefore, to point out that my mandate is limited by the words of section 57 of the Code. I am to conduct a “review of the implementation and effectiveness of the changes resulting from the enactment of” the Human Rights Code Amendment Act, 2006. My mandate is not to conduct a review of the entire system of human rights in the province or to investigate the societal impact of anti-discrimination and anti-harassment laws. My mandate is to focus on the extent to which the current system is delivering against universally desirable objectives such as access to justice, transparent adjudication, timely disposition of cases, and the elimination of systemic discrimination.
I strongly encourage and welcome a wide range of comments on the present human rights system. However, I request that the comments be focused on the implementation and effectiveness of the changes brought about by the Human Rights Code Amendment Act, 2006. A copy of that Act is found on the Review’s website under “Useful Links.” A copy of the current Human Rights Code reflecting the changes caused by the enactment of the Act is also found on the Review’s website.
I look forward to your participation.
PART II – CONSULTATION PAPER
The purpose of this Consultation Paper is to generate feedback that will allow me to assess the implementation and effectiveness of the changes to Ontario’s human rights system since June 30, 2008. It is important that I receive information from the actual users of the system about their experiences with the new system.
In the months leading up the release of this Consultation Paper, I reviewed human rights laws, rules, policies, reports, studies and legal decisions and met with the three human rights institutions in the Ontario human rights system. These bodies are able to provide me with statistical and other information about caseloads, timelines, number of applications, interventions, hearings, settlements etc., and that information will be reflected in my Report. However, the Review and this Consultation Paper were created so that interested members of the public and stakeholders can share their perspectives on the changes to the human rights system, so I welcome feedback on the issues I have identified in the Paper as well as any other issues relevant to the mandate of the Review.
2. Human Rights Tribunal of Ontario (HRTO)
Since June 30, 2008, when the Human Rights Code Amendment Act, 2006 came into effect, all claims of discrimination and harassment under the Ontario Human Rights Code are dealt with through applications filed directly with the Human Rights Tribunal of Ontario (HRTO).
The HRTO is an independent administrative tribunal. According to its website, the Tribunal’s primary role is to “provide an expeditious and accessible process to assist parties to resolve applications through mediation, and to decide those applications where the parties are unable to reach a resolution through settlement.”
The Code grants the Tribunal the power to make its own rules of procedure and the flexibility to offer the best opportunity for a fair, just and expeditious resolution of the merits of the application before it. The HRTO is required to conduct public consultations before making a rule. The Tribunal may not dispose of an application that is within its jurisdiction without giving the parties an opportunity to make oral submissions and without giving written reasons. In limited circumstances, the Tribunal may defer or dismiss an application without a hearing.
Final decisions of the Tribunal may no longer be appealed to the court. However, parties may seek reconsideration from the Tribunal or judicial review at the Divisional Court. The HRTO retains a broad remedial power to order monetary compensation, restitution or other sorts of public interest remedies to promote compliance with the Code.
As of January 25, 2011, the HRTO became part of the newly designated Social Justice Tribunals cluster. This cluster brings together the HRTO and six other important adjudicative tribunals – the Landlord and Tenant Board, Social Benefits Tribunal, Child and Family Services Review Board, Custody Review Board, Special Education (English) Tribunal and Special Education (French) Tribunal. The mandate of these tribunals is to provide Ontarians with timely access to specialized, expert and effective dispute resolution in a wide range of matters.
3. Human Rights Legal Support Centre (HRLSC)
The HRLSC is a new human rights agency that commenced operation on June 30, 2008 as a result of the Act. The HRLSC provides assistance to people in communities across Ontario who may have experienced discrimination contrary to Ontario’s Human Rights Code, and may want to file an application to the Human Rights Tribunal of Ontario. The HRLSC does not have a mandate to provide support to respondents.
The HRLSC is not part of Legal Aid Ontario and does not use a financial means test to determine which applicants or potential applicants to assist. Accordingly, the HRLSC assists applicants or potential applicants regardless of their income.
The Code requires the HRLSC to provide advice and assistance respecting the infringement of rights, and to provide legal services relating to the making of applications, proceedings before the Tribunal, applications for judicial review, stated case proceedings, and the enforcement of Tribunal orders.
4. Ontario Human Rights Commission (OHRC)
In the post-2008 human rights system, the Human Rights Commission’s role in individual complaint processing is ended. The OHRC no longer accepts complaints from members of the public. Instead the Commission is focused on the policy aspects of human rights, and in trying to foster respect for human rights within the community as a whole.
Section 29 of the Code states that it is the Commission’s duty to promote and advance respect for human rights in Ontario, to protect human rights in Ontario, and to identify and promote the elimination of discriminatory practices.
The Code sets out the types of activities the Commission should engage in, for example:
• Develop and deliver programs of public education and information to promote awareness of human rights and to prevent and eliminate discrimination
• Research discrimination and to make recommendations on preventing and eliminating discrimination
• Promote and assist groups and individuals to alleviate human rights-related tension and conflict
• Approve policies designed to help Ontarians understand human rights
• Bring applications to the new Tribunal in cases where there is a public interest
• Report to the people of Ontario on human rights and on the Commission’s activities
5. Questions to Consider
a) Is the new human rights system accessible and easy to use? What would you describe as the advantages and disadvantages of the system?
b) Are you able to get information about the human rights system? Where do you go to get that information? Is the information helpful and accessible?
Human Rights Tribunal of Ontario
Whether the redesigned Human Rights Tribunal of Ontario (HRTO) is providing quicker and direct access for applicants, and a fair dispute resolution process for all parties, including respondents.
a) How would you describe your overall experience with the Tribunal? What were positive and negative elements of that experience? What areas could be improved?
b) Was it easy to find information about the Tribunal, its processes and its procedures? Were the forms easy to fill out and understand? Were the HRTO Guides helpful to you?
c) Did you find the Tribunal accessible? Did you have direct access to an adjudicator? Do you feel you were treated fairly?
d) How would you describe your experience at the various stages of the Tribunal’s process, if applicable – application/response, mediation/settlement, hearing, order and remedy, reconsideration?
e) If you had someone representing you at the Tribunal, who was that person and how were they retained? What did he or she do for you?
f) Did you find the Tribunal dealt with your matter in a timely manner?
g) If you were involved in a complaint that started out at the Commission and ended up being dealt with by the Tribunal after June 30, 2008, did the Tribunal deal with your matter fairly?
h) The Tribunal currently does not charge a filing fee to applicants or respondents. In future, would you be prepared to pay a filing fee to participate in the Tribunal’s processes?
i) The Tribunal currently does not award legal costs to the successful party. In future, if the Tribunal made an unsuccessful party pay (or partially pay) the successful party’s legal costs, would you consider that fair?
Human Rights Legal Support Centre
Whether the new Human Rights Legal Support Centre (HRLSC) is effective in providing information, support, advice, assistance and legal representation for those seeking a remedy before the Human Rights Tribunal of Ontario (HRTO).
a) How would you describe your overall experience with the Legal Support Centre? What were the positive and negative aspects of that experience? What areas could be improved?
b) If you received assistance from the HRLSC, what was the form of that assistance? How would you describe the quality of the services you received?
c) If you requested and did not receive assistance from the HRLSC, what was the reason? Did you proceed to make an application to the HRTO on your own or with the assistance of someone else?
Ontario Human Rights Commission
Whether the Ontario Human Rights Commission (OHRC), in its revised role, is proactively addressing systemic human rights issues through activities such as research and monitoring, policy development, and education and training.
a) How would you describe your overall experience with the Human Rights Commission? What were the positive and negative elements of that experience? What areas could be improved?
b) Was it easy to find information about the Commission, its programs and activities? Have you used any of the information or tools on the Commission’s website? Was the Commission accessible?
c) Have you been involved in any public education programs provided by the Commission or participated in the Commission’s public consultations?
d) Has the Commission provided assistance to you or your organization in understanding human rights or preventing discrimination?
e) Did the Commission intervene in your application before the Tribunal?