ARCH Disability Law Centre 425 Bloor St. E. Ste. 110 Toronto, Ontario M4W 3R5 Tel.: 416-482-8255 Toll-free: 1-866-482-2724 Fax: 416-482-2981 Toll-free: 1-866-881-2723 TTY: 416-482-1254 Toll-free: 1-866-482-2728 www.archdisabilitylaw.ca ARCH Alert 3 August 2006 *** Reforming the Human Rights Process in Ontario By Laurie Letheren and Roberto Lattanzio, Staff Lawyers On 26 April 2006 the Ontario Attorney General, Michael Bryant, introduced Bill 107, the Human Rights Code Amendment Act, 2006 ("the Bill"). Bill 107 proposes significant changes to Ontario's human rights system. The Standing Committee on Justice Policy ("Committee") will hold public hearings as part of its consultation process on Bill 107. Committee hearings will be held in London, Ottawa, and Thunder Bay on 8, 9 and 10 August respectively. ARCH will be making an oral presentation to the committee in Ottawa on 9 August. ARCH also will prepare a final written submission to the Committee before it concludes its hearings. This article sets out some of the key issues that have been highlighted by the disability community and human rights advocates. We also would recommend that you review the submissions of other groups and individuals. The positions of a number of groups can be read on CLEONet at http://www.cleonet.ca/. At first reading of Bill 107 on 26 April 2006, Attorney General Michael Bryant stated: The Human Rights Code Amendment Act, 2006, if passed, would strengthen Ontario's human rights commission. Complaints of discrimination would be filed directly with an enhanced Human Rights Tribunal of Ontario. It would improve access to justice for those who have faced discrimination and increase protection for the vulnerable. Under this legislation, the human rights commission, headed by Barbara Hall, would become an even stronger champion of human rights. The newly enhanced commission would be a proactive body focused on public education, promotion, research and analysis to prevent discrimination. The commission would still have a critical role in the resolution of complaints. It would have the ability to intervene in or initiate complaints on systemic issues affecting the public interest before the tribunal. In this way, the commission's time-honoured roles of identifying systemic issues and bringing those issues before the tribunal would not only be maintained but enhanced. (Endnote 1) After discussions about the current human rights system in Ontario, ARCH Board members concluded that it is seriously flawed, and does not adequately address the experience of discrimination of countless Ontarians. ARCH's view is that the problem with the current system is more than delay and backlog of cases. The Board supports the framework of Bill 107 in that it provides persons who file human rights complaints with the right to a hearing, and provides for legal assistance for claimants, as these changes could address some of the current problems. Bill 107 needs to be significantly amended before it becomes law. We encourage other groups and individuals to make oral and written submissions to the Committee so that we can work towards creating a system of enforcing human rights in Ontario that truly works for all persons whose rights under the Ontario Human Rights Code ("Code") have been breached. This article will explain how the Ontario human rights system works now and identify the problems with the current system experienced by those persons who have contacted us for advice and by ARCH Board and staff. We also identify the key sections of Bill 107 that ARCH staff and other advocates believe need to be amended. Our intention in writing this article is to provide others with background information which may be used as a resource for developing submissions to the Committee. As Catherine Frazee, a former Chief Commissioner of the Ontario Human Rights Commission and now the Co-director of Ryerson RBC Institute on Disability Studies Research and Education stated in the 6 April 2006 issue of ARCH Alert, "I think that this is our opportunity to say to the Government, 'Great, you are ready to act' So are we. Let's show you how to do it." (Endnote 2) IS THE HUMAN RIGHTS SYSTEM WORKING NOW? Under the current system, persons who believe that their rights under the Code have been violated can file a complaint with the Ontario Human Rights Commission ("Commission"). The Commission is charged with investigating complaints, attempting to effect a settlement, and then determining which complaints will be dismissed or referred to the Human Rights Tribunal of Ontario ("Tribunal") for a hearing on the merits of the claim. In this process, the Commission's role is to act as an impartial third party representing the public interest. It does not act on behalf of the complainant. The Commission does not provide legal representation for either complainants or respondents. See www.ohrc.on.ca for further information on the current Commission procedures. Members of disability organizations have told ARCH staff that they discourage persons from filing a human rights complaint. They point out that the mediation and investigation process is stressful and disempowering and that their clients feel forced into accepting settlement offers that are not completely satisfactory because so few complaints are ever referred to the Tribunal for a hearing. (Endnote 3) This is consistent with the information that we receive through our provincial telephone advice service and our community development work. Many people believe that the most serious problem with the current Commission is that it has the role of determining which cases will be referred to the Tribunal for a hearing. According to the Commission's annual reports, only four to seven per cent of the approximately 2,400 cases that are filed each year at the Commission are referred to the Tribunal. (Endnote 4) The decision of whether a complaint will be referred to the Tribunal is made "behind closed doors" and the Commission generally gives very few reasons for its decision. The decision is based on the report of a Commission investigator and the complainant has no control over the investigation process. As Ms. Frazee stated, "The Commission is being asked to do the impossible. You cannot be performing the role of turning people away and still claim to be a human rights champion. It's entirely inconsistent. It sets up a dynamic that is doomed to failure." (Endnote 5) Advocates note that the lucky few who get a hearing at the Tribunal have to wait years before that happens. ARCH often has heard from individuals and members of disability organizations that for most persons, the present system does not provide access to justice. Based on the view expressed by many clients, advocates, and ARCH Board members and staff, that the current system of enforcing human rights in Ontario does not provide access to justice, the ARCH Board and staff have supported in principle the proposal under Bill 107 to move to a system where complainants would have direct access to a hearing of their complaint. ARCH's view is that when the Commission no longer has the job of screening individual complaints, it will be better able to fulfill its role as the public advocate and champion of human rights in Ontario. HOW BILL 107 WOULD CHANGE THE WAY THAT HUMAN RIGHTS ARE ENFORCED IN ONTARIO * Claimants will have direct access to a hearing before the Tribunal * Commission will no longer determine which complaints are referred for a Tribunal hearing * Commission will no longer investigate individual complaints * Claimants will have control over the investigation, conciliation, mediation and settlement of their own complaints * Provincial government will provide legal services to individual applicants and other parties PROPOSED MANDATE AND STRUCTURE OF THE COMMISSION UNDER BILL 107 Commission Structure Bill 107 does not stipulate the number of commissioners that the new Commission would have. The Bill states the following at section 27: (2) The Commission shall be composed of such persons as are appointed by Lieutenant Governor in Council. (3) The Lieutenant Governor in Council shall designate a member of the Commission as Chief Commissioner. (6) The Chief Commissioner and other members of the commission shall be paid such remedies and allowance for expenses as are fixed by the Lieutenant Governor in Council. ARCH supports the proposal put forth by some advocates that Commissioners should not be designated to deal with specific grounds of discrimination such as sex, race or disability. ARCH's view is that commissioners should be designated to lead inquiries into specific discriminatory practices or barriers to accessibility. For example, a commissioner could be designated to head an inquiry into the barriers which persons with disabilities face in trying to access post secondary education. Statistics produced by the Commission indicate that over the past six years, complaints of disability discrimination have represented more than 50 percent of the complaints filed. (Endnote 6) As disability is one of the key grounds of discrimination that the Commission must address in all of its work, it stands to reason that there should be a development of knowledge and expertise within the Commission with regards to disability. ARCH therefore would recommend that another subsection be added to section 27 of the Bill, as follows: All persons appointed as members of the Commission shall have had active involvement and experience in human rights and a demonstrated commitment to human rights. The members of the Commission shall be representative of the community. In addition, at least 50 percent of the Commission's members shall have had active involvement and experience in disability rights, be representative of the disability community and have a demonstrated commitment to disability rights. Bill 107 does not articulate the need of the Commission to ensure that all its offices are accessible to persons with disabilities, including the need to establish regional or branch offices so that the Commission is accessible to all Ontarians. The Commission should consult with members of the disability community to develop accommodation criteria that would be prescribed in regulations and should consult with the disability community before developing forms or determining methods of service delivery. ARCH suggests that the following section be added to Bill 107 to articulate the requirement that all Commission services be accessible to persons with disabilities. The Commission shall deliver all its services in a manner that is fully accessible to all persons with disabilities. Advisory Groups Under Bill 107, the Chief Commissioner may establish advisory groups to advise the Commission on the elimination of discriminatory practices. The Bill does not indicate how members of the advisory committees would be appointed and how committee members would be compensated for their time and expenses. ARCH suggests that Bill 107 be amended to add a section under "Advisory Groups" as follows: The Lieutenant Governor shall prescribe by regulation: * the process for appointing members to advisory committees; * the term for which a member sits on a committee and how and when a member is replaced; * the remuneration and the reimbursement for expenses for members; and * the process for ensuring that the committees are accessible to persons with disabilities and accommodate the individual needs of the committee members. Commission Powers During the debate on Bill 107 in the Ontario Legislature, the Attorney General indicated that "Under this proposal, the commission will focus ... on prevention, public education and policy analysis. It will be able to focus on the systemic, and it will have the stick that it needs." (Endnote 7) ARCH and many other advocates support the government's move toward strengthening the Commission's role as a public educator and advocate of human rights. When the Commission's resources no longer are expended on handling individual complaints, it can use its resources to work toward the prevention and elimination of systemic issues of discrimination. In the 6 April 2006 ARCH Alert, Ms Frazee described the nature of the Commission when she was Chief Commissioner. She describes two very important systemic cases that the Commission initiated during her three years as Chief Commissioner and states: [W]e were energized and ready and wanting to do something proactive about human rights in Ontario ... It's not really anything to brag about that we initiated two complaints in three years. In fact, it's a bit embarrassing that it's all that we were able to do. But believe me, it is all that we were able to do. We had to re-deploy some of our most senior investigators, some of our most senior policy people. You have to amass a tremendous amount of your best resources, because if you're going to initiate a complaint you'd better be ready to do it well. (Endnote 8) Our position is that removing the Commission from individual complaints will not only free up the Commission's resources so that it can focus on the important systemic work that could not be attended to in the past but also will remove the barriers to access to justice that are imbedded in the current system. The change will empower persons who have faced discrimination by providing direct access to the Tribunal and giving them control over their complaints. While supporting this change, ARCH recommends the changes below with regards to the Commission's powers. Proposed Powers of Commission - Section 29 of the Code in Bill 107 In this part, we discuss only the subsections of section 29 that we believe are problematic, and therefore do not deal with every proposed Commission power. However, as stated above, ARCH agrees that when the Commission is not overwhelmed with individual complaints, it will be better able to perform its important roles of promoting human rights awareness and compliance. Subsection (c) allows the Commission to initiate reviews into human rights problems that may arise in a community, institution, industry or sector of the economy, and encourage and co-ordinate plans, programs and activities to reduce or prevent such problems. ARCH supports the recommendation made by other advocates that these functions should be expanded to: * include inquiries and investigations in addition to "reviews"; * impose a duty on parties to co-operate with a Commission inquiry, investigation or review, and a duty to provide relevant information as requested by the Commission; and * provide the Commission the right to file an application with the Tribunal to obtain an order for compliance, in the event of non-co-operation. Subsection (h) provides that the Commission may make its own applications to the Tribunal. Bill 107 limits Commission applications to circumstances in which the Commission is "of the opinion that there are infringements of rights ... that are of a systemic nature" (Endnote 9) We have some concern that there could be restrictions and delays in Commission applications if the Tribunal has to determine whether there has been systemic discrimination. ARCH recommends that this section of the Bill be changed so that the Commission can make its own application to the Tribunal if it is of the opinion that "it is in the public interest" to do so. (Endnote 10) In addition to this change, ARCH recommends that Bill 107 be amended so that no restriction is placed on the remedies available in an application by the Commission. The Commission should have the ability to claim compensation or restitution on behalf of affected persons. ARCH supports the opinion of other advocates that there should be no barriers to the Commission's ability to proceed with an application to the Tribunal and that there should be no restriction on the remedies that the Tribunal may make available to the Commission. Power to Intervene at Tribunal ARCH recommends that the Commission have the right to intervene in any application. The Tribunal should establish its own rules for determining requests for intervention. However, the Commission should not be given the right to intervene at the Tribunal without the consent of the claimant. In order to facilitate a decision by the Commission on whether to seek to intervene in an application, there also needs to be a mechanism for the Commission to be informed of all applications filed with the Tribunal. Investigation Powers As indicated above, ARCH recommends that the Commission's functions be expanded to include the right to initiate reviews, inquiries and investigations, to initiate its own applications to the Tribunal and to intervene in applications to the Tribunal. We recommend that, where the Commission takes on one of these expanded functions, it should retain the investigation powers that it has under the current legislation, such as the right to enter premises and examine or remove documents or other relevant materials. (Endnote 11) It is recommended that if access to materials were denied, the Tribunal would have the jurisdiction to make an order to force compliance. Most advocates believe that the Commission needs to retain investigation powers to give it the tools necessary to fulfill its mandate of investigating systemic discrimination and initiating complaints to the Tribunal. It has been the experience of ARCH staff, through its litigation and its contact with persons with disabilities through our provincial telephone service, that the investigations conducted by the Commission delay the claim's progress and are often very limited in scope. Complainants have told us of situations where they have waited up to two years for an investigator to be appointed to their case and then are told by witnesses that the investigator conducted very short telephone interviews. The Commission does not act on behalf of the complainant in investigations. (Endnote 12) The purpose of the Commission investigation is not to gather all of the relevant information that would support a complaint. The investigator's report is used to determine whether the Commission will refer the complaint to the Tribunal. Complainants have no control of the investigation and often feel disempowered and experience further injury when they are informed that their complaint will not be referred to a hearing and have no access to the information on which this decision was based. We have heard that in the few cases that are referred to a Tribunal hearing, complainants often conduct their own investigations by re-interviewing witnesses and seeking disclosure of documents. ARCH's view is that when claimants, with assistance from a legal support centre, conduct their own investigations, there will be less delay and less wasting of resources because of repetition. Complainants will regain a sense of empowerment. Commission's Annual Reporting Function Under Bill 107, the Commission is required to make an annual report to the Minister about the affairs of the Commission during the year. The same reporting requirement exists under the current Code. However, ARCH believes that in order to ensure the independence of the Commission and because government ministries such as the Ministry of Community and Social Services, the Ministry of Health and Long-Term Care, and the Ministry of the Attorney General often are respondents to human rights complaints, the Commission should report directly to the Legislature. If the Commission reports to the Attorney General, the Attorney General may be in the conflicting position of overseeing the workings of the Commission and, at times, having to defend the government's position on a complaint. DISABILITY RIGHTS SECRETARIAT Section 31 of Bill 107 proposes the establishment of a Disability Rights Secretariat ("Secretariat") under the direction of the Chief Commissioner. The Secretariat is to be composed of no more than six persons. The functions of the Secretariat would be to: * undertake research into discriminatory practices and make recommendations designed to prevent and eliminate such discriminatory practices; * develop public information and materials to promote the elimination of discriminatory practices; and * undertake other responsibilities as assigned by the Chief Commissioner. The proposed roles of the Commission overlap with the functions of the proposed Secretariat, in that both are to develop educational materials and public information and to conduct research into discriminatory practices. However, the Commission's functions are more expansive. (See section above) Neither the Bill nor any information released by the government provides further details on the government's reasons for proposing separate secretariats for disability and race relations. Some advocates feel that there should not be a hierarchy created in the grounds of discrimination, and fear that the proposed Secretariat will become the government's under-funded, ineffective and bureaucratic means of responding to disability discrimination claims. There is concern that the creation of a separate Secretariat will result in the ghettoization of disability issues. Some community members also have expressed a concern that having a separate Secretariat would promote a perception that persons with disabilities are being given preferential treatment which could result in public resentment and backlash. Funding Issues In our opinion, it is not realistic to assume that the provincial government would adequately fund both a Disability Rights Secretariat that would have the necessary resources to serve all persons with disabilities across Ontario and an adequately resourced Commission to serve persons who may have experienced discrimination on other grounds. Commission Should Develop Expertise in Disability Issues and Apply Expertise in All Its Work When considering the need, effectiveness and possible impact of a Disability Rights Secretariat, it is important to keep in mind that "disability" continues to be the leading ground of discrimination cited in human rights complaints in Ontario. Persons with disabilities face significant discrimination in Canadian society. In Ontario, it seems that the disproportionately high number of disability complaints is not diminishing. The Commission saw new disability claims rise from 41.2 per cent of all new claims in 2000-2001, to 48.5 per cent in 2001-2002, to almost 66 per cent in 2002-2003. (Endnote 13) In 2005-2006, the Commission reports that 54.11 percent of complaints filed cited disability as a ground of discrimination. (Endnote 14) Disability is clearly one of the main grounds of discrimination that the Commission must address in all of its work. It stands to reason that the development of knowledge and expertise within the Commission with regards to disability issues should take place throughout the Commission and inform all of the work that the Commission does. It may be detrimental to compartmentalize "disability" apart from other grounds. This becomes more evident when we consider discrimination taking place on more than one ground, i.e., the intersectionality of grounds of discrimination such as race, age, family status and disability. For example, the Commission inquiry into the impact of the Ontario Safe Schools Act revealed that a disproportionate number of Black students with disabilities were impacted by the disciplinary policies of school boards. (Endnote 15) It is essential that the work of the Commission always considers disability as it impacts other areas. The Commission should be encouraged to develop expertise on disability issues through training and research. However, as noted above, the fear is that a Secretariat could, in the long term, create a sectioning off of disability issues. The development of a separate Disability Rights Secretariat also could result in an additional bureaucratic structure which provides little in terms of results and effectiveness. Therefore, it is important that if such a body were to exist, that its mandate be specific and focused and that the mandate varies as different issues arise. In addition, the Bill proposes that the Disability Rights Secretariat will be composed of no more than six people. Since the government has not indicated that there will be an increased budget for the human rights system, it is ARCH's view that the Secretariat would be limited to six people and that such a small secretariat could not be very effective. As noted above under Commission Structure, some advocates recommend that there not be an established commissioner or secretariat for a specific ground of discrimination, but that commissioners be appointed to head an inquiry into certain industry barriers or practices, such as the recent inquiries conducted by the Commission on barriers to access in restaurants or the practice of racial profiling by police. One of the key roles that many advocates foresee for the Commission after reform is the power to conduct inquiries, reviews and investigations with broad investigation powers to support this work. As Bill 107 is now drafted, the Disability Rights Secretariat does not have the power to initiate reviews into discriminatory practices and does not have any powers of investigation. Even if powers were conferred to the Secretariat, it would not have sufficient resources to conduct extensive inquiries or reviews due to the limited resources that are proposed for the Secretariat. This raises a concern that the Commission could defer all issues of discrimination to the Secretariat and broad discriminatory practices against persons with disabilities would remain unaddressed. Another fear is that a Disability Rights Secretariat eventually would become the focal point of all disability work. This could mean that disability issues are segregated from all other government initiatives and policy development and the Secretariat would become the centre for all disability matters. Such a separation of disability issues from other work that the Commission would undertake potentially could undermine the very intent behind the creation of such an office. (Endnote 16) After canvassing the views of our Board members, ARCH recommends that the section proposing to establish the Disability Rights Secretariat be deleted from Bill 107. HUMAN RIGHTS LEGAL SUPPORT CENTRE When Attorney General Bryant first announced the reform of Ontario's Human Rights system he promised that the new legislation would establish a system of full access to legal services for all, regardless of income. At second reading of Bill 107, he stated: [T]here's no question that providing public legal support through the human rights legal support office is a critical component of the human rights reforms that we have brought forward to this Legislature There's no question that as we propose movement to a direct-access system which, in the words of the NDP task force chair, Mary Cornish, is a consumer-oriented -- one might say victim-oriented -- system, we need to ensure that we have the supports there for them -- absolutely, no question, full stop. This is something that needs to be entrenched by way of legislation... (Endnote 17) Although these promises have been made, Bill 107 does not contain any provision which clearly establishes a legal support centre and the government has not provided any details about how such a support centre would be funded and what services it would provide. It is our opinion, and the opinion of most advocates, that in order for the system to work effectively for all those who are attempting to enforce their rights under the Code, free legal services must be available to all those who have made or may make an application to the Tribunal. The services provided must include advice, information, assistance and representation through each step of the application process. The services must be accessible to all persons with disabilities and must be available province-wide. In our opinion, the Human Rights Legal Support Centre ("Centre") must include the following: * no restrictions on eligibility for services, such as income level or trade union membership; * the provision of free quality legal services by trained human rights lawyers at every stage of the human rights process e.g., initial consultation and legal opinion, drafting of application, mediation, and hearing; * the provision of free initial advice and information by trained human rights specialists to callers who are considering making an application to the Tribunal; * physically accessible satellite offices and a system in place to ensure that services are available to Ontarians living in rural and northern areas; and * guaranteed allocation of sufficient resources. Funding is, of course, critical to ensuring that the Centre provides quality legal services to all Ontarians who require them throughout the human rights process. It is therefore important that an independent audit of the Centre, once fully operational, take place, as well as annual reviews. For reasons stated above, ARCH agrees that the removal of the Commission's role as gatekeeper will allow more Ontarians to access justice and redress for discriminatory actions. One of the consequences of this to keep in mind, however, is that persons from marginalized communities may be reluctant to contact the Tribunal for various reasons, such as intimidation and lack of support. The proposed Centre can play a vital role as the initial starting point for potential claimants, as well as representing claimants throughout the process. This role includes the provision of advice beyond just that of the human rights process so that a complainant becomes aware of all available options regarding human rights violations such as civil suits, and other administrative venues. ARCH adopts the recommendation of other advocates that the language of section 46.1 of Bill 107 be replaced with the following: (Endnote 18) 46.1(1) The Minister shall establish a system for providing high quality support services to any person who is, has been, or may be a claimant under this Act, and to provide information, support, advice, assistance and legal representation to those seeking a remedy at the tribunal. (2) The Minister shall enter into agreements with prescribed persons or entities for the purpose of establishing this system of support services, and shall ensure that sufficient resources are allocated to this system to enable its functions to be carried out and to ensure that support services are available throughout the Province. (3) The Minister shall ensure that the services are fully accessible to persons with disabilities. (4) On an annual basis, a person appointed by the Minister shall review the functions and operations of this system, and shall advise the legislature as to the sufficiency of resources allocated to this system, the functions assigned to this system, and the range of individuals who have accessed the services provided. As we have stated below, it is our opinion that the development of the Tribunal under the new system should be built on the premise that the Tribunal will be the expert decision making body on human rights issues in Ontario. It is our position that if all claimants are provided with representation from trained human rights lawyers, the Tribunal will be better able to fairly and effectively resolve matters before it and develop its expertise, and claimants will not face alone the challenges created by formal and complex procedural rules and practices. The publicly-funded legal service is of critical and utmost importance to making these reforms work. Thus, the right to such services needs to be explicitly legislated. REFORMING THE TRIBUNAL UNDER BILL 107 The Human Rights Tribunal of Ontario is the adjudicative body that hears human rights complaints. Mediation is also available at the Tribunal. As discussed above, the greatest change proposed by Bill 107 is that claimants will file applications directly to the Tribunal. The Commission no longer would have the role of determining which claims are referred for a hearing at the Tribunal. It is our opinion that it will be essential for the government to ensure that all Tribunal processes are fully accessible to all Ontarians, and that rules of procedural fairness are applied throughout the process of resolving a claim. Is the Tribunal Working Now? The Tribunal process can be complex and daunting for individual claimants and legal representation often is required. Individual legal representation is not provided for at the Tribunal level. It is ARCH's experience, as well as that of other community legal clinics, that respondents in human rights complaints are able to extend hearings through various means, thereby placing a disproportionate burden on the financially disadvantaged claimants. It has been ARCH's experience through its litigation practice and through its summary advice service that complaints at the Tribunal can face delays such as those created by procedural motions and unnecessary evidence, often brought by well-resourced respondents. The Code provisions regarding the Tribunal are completely repealed and changed under Bill 107. According to the Ministry of the Attorney General, the proposed Tribunal reforms aim to implement: ... a more open, accessible and faster complaint resolution process, with applications being made directly to the Human Rights Tribunal of Ontario. The [T]ribunal would have enhanced statutory powers to determine its own practices and procedures to manage its caseload efficiently and effectively, and to provide alternative dispute resolution mechanisms. (Endnote 19) Appointment of Tribunal Members Bill 107 provides that Tribunal members, and the Tribunal chair and vice-chairs, will be appointed by the Lieutenant Governor in Council. However, it does not provide any further guidance on the making of such appointments. ARCH recommends that appointments to the Tribunal be done through an independent, non-partisan process. The process should be a competitive process and candidates should have demonstrated expertise in human rights law. The Canadian Human Rights Act, ("CHRA"), (Endnote 20) for example, expressly identifies the importance of such requisite experience and expertise of its Tribunal members. ARCH recommends that section 32 of Bill 107 include the following provision, which mirrors the provision of the CHRA: Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights. Tribunal Application Process Critical to the success of this proposed new Tribunal is that persons who allege that they have experienced discrimination be aware of their rights and be able to access an efficient and accessible process to seek redress. The Cornish Report makes the following observation, understanding that human rights applicants often will be socially disadvantaged as compared to the persons against whom they make their complaint: People of colour, people with disabilities, people on public assistance, women, and other minority groups lack social, legal, political, and economic power. It is precisely because of this imbalance of power that the Code was passed with the specific purpose of breaking down discriminatory barriers and bringing about the full and equal participation of these groups in all aspects of society. (Endnote 21) The Supreme Court of Canada has described human rights legislation as "the final refuge of the disadvantaged and disenfranchised" and the "last protection of the most vulnerable members of society." (Endnote 22) With this in mind, the following recommendations, which are by no means exhaustive, aim at ensuring that additional safeguards are in place to facilitate access and that discrimination does not go unchecked in this province. The following, although just a few of the needed safeguards, are underscored by the concerns ARCH repeatedly hears from the cross-disability community across the province through its summary advice service and community development work. a) ensure accessibility Surely, of all of the tribunals that exist in Ontario, it is most important for the Human Rights Tribunal to be barrier-free, and for it to declare clearly that persons with disabilities have an entitlement to barrier-free services. First, an accessible process requires that all barriers at the Tribunal, including barriers to accessing its physical spaces, communications and information, policies and practices be identified and removed to ensure full accessibility. There are currently many barriers which persist throughout the complaints process. For example, there is currently no transcription or tape recording of the proceedings at the Tribunal or automatic provision of accommodations such as real time captioning. The onus is on the claimant to request the needed accommodations, which can be at times difficult and confusing. Second, the Tribunal also must be accessible in another sense: it must act to facilitate the ability of complainants with disabilities, saddled with social disadvantage, to come forward with their human rights complaints so that they may be heard and decided. It is especially important to be aware of social disadvantage where persons with disabilities are concerned. Persons with disabilities are statistically poorer and more marginalized than persons without disabilities. The process must be flexible and sensitive to the particular needs of this community. Ontario's commitment to the eradication of discrimination assumes that the Tribunal will be accessible and will facilitate the ability of complainants to bring forward their applications alleging discrimination. Tribunal procedures must facilitate the ability of applicants to bring their complaints forward so that they may be adjudicated and where warranted, orders can be made to eradicate any discrimination that is found. An example of possible procedural barriers are found at sections 35(3) and 41(1)(c). Perhaps unintended, they can be read together to suggest that if an application does not meet the Tribunal's approved form, it can be dismissed. ARCH recommends that this can be remedied simply by including a saving provision that would ensure that applications are not rejected on the sole basis that the proper form was not used. ARCH's Recommendation on Accessibility Currently, the Tribunal has no obligation to be proactive with regards to barrier removal and accessibility. Although the Tribunal may be responsive when accommodation requests are made, ARCH argues that the process at the Tribunal should make it unnecessary, as much as possible, for individual requests to be made. A claimant may not be aware of Tribunal processes and hence, not be aware of the accommodations that she may need in accessing them and may therefore not request the necessary accommodations in advance. The human rights process is complex, emotionally draining, and difficult to follow for a lay person. The added difficulty of getting needed accommodations exacerbates this. Our recommendation is that the onus should be on the Tribunal to ensure that all accommodations are in place once a person's disability has been identified. One possible way of achieving this may be for the Tribunal to have a system where accommodation needs are identified at the initial application stage and a case file manager would then ensure that the claimant's needs are accommodated. ARCH recommends that a provision addressing accessibility be legislated, and that the following be added to section 37: The principle of accessibility will have primacy over concerns of efficiency and expeditiousness of the Tribunal process. In addition, ARCH recommends that accessibility also be included in section 34(2), which sets out the key areas that the Tribunal's Rules of Practice may address. The following should be added to section 34: In making rules governing the practice and procedure before it, the Tribunal must prescribe practices and procedures to ensure full accessibility throughout its processes. b) third party applications Under Bill 107, and under the current Code, only individuals and the Commission can file an application. For some individuals, filing their own application is unlikely and simply not an option for reasons such as wanting to preserve anonymity, lack of resources, fear of reprisals, or the emotional cost involved. Thus, discrimination remains unaddressed. However, a community organization, with the individual's consent, could pursue an application without such concerns. (Endnote 23) Further, allowing community groups to file applications could also address more systemic discrimination issues. Organizations can use their information and expertise to identify ongoing and routine discrimination practices that otherwise would not be remedied. This captures a second type of possible applications, where groups could bring their own application on behalf of a general community with regards to a discriminatory policy or practice, without needing an individual applicant. ARCH recommends that the following provision be adopted and included in section 35: An application may be filed on behalf of a person or groups of persons who have experienced or continue to experience discrimination by any organization with a demonstrated interest in the subject matter or to the welfare of that group of persons. The written consent of that person or persons is required except in the case of systemic applications where such consent is deemed by the Tribunal to be unnecessary. c) extend limitation period to two years ARCH recommends that the current limitation period be extended from six months to two years, in accordance with the general standard for civil actions. Through our telephone summary advice service, we routinely receive calls from persons who have experienced discrimination but were not aware of the protections afforded to them under the Code or were not aware that recourse was possible, let alone that a six-month limitation period existed for such recourse. Others simply may not be able to file a complaint within six months due to their circumstances, including disability-related reasons. d) fees This Province has made a solemn commitment to eradicate discrimination and because of this commitment, the human rights process has always been cost-free. Bill 107 proposes, under section 45.2, that the Tribunal have the authority to charge fees for expenses incurred, subject to the approval of the Minister. Although this is not uncommon for administrative tribunals, it is vital that the human rights process in Ontario remain free of any fees to the applicant, as it otherwise would create a barrier to accessing the process. It is unclear, however, what types of fees are contemplated. It may be that in certain circumstances, such fees may be appropriate for the respondent to pay. It is recommended that this provision be removed, but in the alternative, that the provision be more specific, setting out the circumstances under which fees are to be paid and limiting its application to respondents. e) costs Bill 107 is silent on the issue of adverse cost awards. Some advocates fear that Bill 107 provides the Tribunal with authority to order costs against the complainant. In fact, the Tribunal already has this power under the Statutory Powers Procedure Act (Endnote 24) ("SPPA"), which is a general provincial statute that provides basic procedural safeguard in administrative tribunal processes. In 2004, the Tribunal proposed cost awards in its draft Rules. Following a public consultation on the draft, the Tribunal removed the proposed rule. ARCH made submissions to the Tribunal on this point. Tribunal's Mandate and Hearing of Applications The Tribunal's mandate is to address human rights applications. At section 37(1) of the Code under Bill 107, the Tribunal must "dispose of an application under this Part through a hearing or through any alternative dispute resolution mechanism provided for in the Tribunal rules." Although ARCH supports the use of alternative dispute resolution ("ADR") at the Tribunal, such a mechanism should not be forced on the applicant. ARCH strongly recommends that the applicant be given the right to elect whether to use ADR or proceed with a hearing. Subsection (2) states that the Tribunal must adopt "the most expeditious method of disposing of an application on the merits". As it is currently worded, this provision is problematic as it does not ensure procedural fairness at the cost of efficiency. Section 37(2) should be amended to state the following: The Tribunal shall determine an application on its merits in an expeditious manner in accordance with the standards of procedural fairness. Tribunal's Control Over Its Own Process In keeping with statements made above, it is important that the Tribunal have the power to control its own process and have the ability to ensure that its process is continually responsive to the needs of those who are accessing that process. Bill 107 affords more power to the Tribunal to control its own process. Early Dismissal of Applications Bill 107, at section 41, provides for the dismissal of complaints "without a hearing", in whole or in part. This kind of power is one which is granted to tribunals generally by section 4.6 of the SPPA. This is a general power that ensures the efficiency and effectiveness of the administrative process. An example of such a case would be an application which falls under the jurisdiction of the CHRA, or in situations where even if all the facts alleged are assumed to be true, the allegation does not amount to a breach of the Code. First, ARCH recommends an amendment to section 41(1) to capture what we believe to be its true intent by inserting "full hearing on the merits" in the place of "hearing". Second, under the current Code, if a complaint is dismissed by the Commission, the complainant has the right to request a reconsideration of that decision. As Bill 107 is currently drafted, there is no right to make a request that the Tribunal reconsider its decision to dismiss an application. Before such reconsideration rights are removed, the strengths and weaknesses of that process must be fully considered. It is our opinion that protections therefore must be clearly legislated. Such procedural safeguards should include a requirement of notice to the applicant, an opportunity to make submissions to the decision-maker and the receipt of a written decision if the application is dismissed. This means that the Tribunal is not relieved of its duty to meet standards of procedural fairness, including the right to notice and opportunity to be heard by the decision-maker in a preliminary hearing. Furthermore, there must be a right to a full exchange of the opposite party's submissions. It is critical that a claimant be fully aware of the respondent's arguments to be able to respond accordingly. This is a crucial element of procedural fairness. A choice of written or oral hearing should also be available to the parties. Currently, as this Bill reads, an application can be dismissed without any notice or any opportunity for the exchange of submissions or arguments. Section 41(2) of the Code under Bill 107 provides that the notice requirements set out at section 4.6 of the SPPA do not apply to the powers above regarding early dismissal of applications. Section 41(2) should be removed as it can be used to limit the SPPA protections in the early dismissal process. Lastly, under this Bill, the Tribunal can dismiss an application if it is of the opinion that another proceeding "has appropriately dealt with the substance" of the application (section 41(1)(g)). In assessing whether the substance of the application has been appropriately addressed by another process, the Tribunal must consider the remedies awarded, and settlement agreements, and whether they are inadequate. No Appeal of a Tribunal's Decision Bill 107 proposes the removal of all grounds of appeal of a Tribunal's decision. Such a clause as section 45 is called a "privative clause". Generally, decisions of specialized administrative tribunals are not subject to appeals. The La Forest Report (Endnote 25) and the Cornish Report (Endnote 26) both highlight the need for courts to have less interference in the decisions of human rights tribunals, and recommend that the right of appeal be removed. The Cornish Report stated that to do otherwise would be "expensive, lead to delay, and cause uncertainty in the enforcement of decisions". (Endnote 27) The removal of appeal rights enforces an acknowledgement that the Tribunal is an expert decision-making body. Also, many advocates argue that most often, it is the well-resourced respondents that take advantage of the current appeal mechanism. Once a complaint is appealed before the courts, the remedies which the Tribunal has awarded are put on hold until all appeal routes are exhausted, which translates into years before a claimant benefits from the awarded remedies. ARCH agrees that a privative clause is necessary specifically in the human rights process, as the effect of such a provision is that a higher level of recognition is given to the Tribunal as an expert decision-making body. If the current appeal mechanism remains, the building of expertise at the Tribunal level will not be established because the courts will continue to interfere with its decisions. However, any reform to extinguish appeal rights must be done with much consideration, consultation and sensitivity to the potential impact on claimants. If the backdrop of this discussion on whether a privative clause should be adopted were one where a foundation of expertise in human rights existed or guarantees and safeguards were in place to ensure the buildup of such expertise, ARCH would strongly recommend that decisions made by the Tribunal be protected, thereby supporting some form of privative clause. The privative clause envisioned would not extinguish all rights to review and thus, would not be a full privative clause. Otherwise, without steps in place to ensure expertise at the Tribunal, ARCH cannot support the extinguishing of such an important right as that to appeal. CONCLUSION This special ARCH Alert edition is not a comprehensive analysis of the strengths and weaknesses of Bill 107. The intent of this article was to add to the existing dialogue and provide an additional resource to the community. ARCH will develop a final submission and submit it to the Standing Committee before the last day of the Committee's public hearings. This submission, once completed, will be available on ARCH's website. In the meantime, feedback on the comments made throughout this article is welcome. If you wish to access the various legislation cited above, use the following links below: www.e-laws.gov.on.ca www.canlii.org To view Bill 107, use the link below: http://www.ontla.on.ca/documents/Bills/38_Parliament/session2/b107_e.htm ENDNOTES: 1. Attorney General Michael Bryant, Hansard, 26 April 2006 at 3289. 2. ARCH Alert, 6 April 2006, at 13. 3. Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Ministry of Citizenship, 1992) at 116-120 [Cornish Report]; Ruth Carey, Executive Director, HIV & AIDS Legal Clinic of Ontario, letter to the editor, Toronto Star, 15 March 2006. 4. See Commission Annual Reports 1999 to 2005. 5. ARCH Alert, 6 April 2006, at 5. 6. See Commission Annual Reports 1999 to 2005. 7. Attorney General Michael Bryant, Hansard, 8 May 2006, at 3650. 8. ARCH Alert, 6 April 2006, at 4. 9. Subsection 36(a). 10. See subsection 36(c). 11. See Code section 33. 12. Attorney General Michael Bryant, Hansard, 8 May 2006, at 3649. 13. See Commission Annual Reports for 2000-01 at 40, 2001-02 at 45 and 2002-03 at 57. 14. Commission Annual Report 2005-2006 at 46. 15. The Ontario Safe Schools Act: School Discipline And Discrimination - Report available at www.ohrc.on.ca. 16. Although the framework is significantly different, one of the main criticisms by disability advocates in Qu,bec, notably La Conf,d,ration des Organismes de Personne Handicap,es du Qu,bec (COPHAN)[0], about the Office des personnes handicap,es du Qu,bec (OPHQ) is that it has become the office for all disability matters and it is bureaucratic and ineffective. See COPHAN's submission to La Commission des Affaires Sociales, M,moire de la Conf,d,ration des Organismes de Personnes Handicap,es du Qu,bec sur le Projet de Loi No. 56, (September 2004) at 20 - 25. 17. Attorney General Michael Bryant, Hansard, 8 May 2006, at 3643. 18. The legislative framework creating the Office of the Worker Adviser is an example of possible language. The enabling provision, Workplace Safety and Insurance Act, S.O. 1997, c. 16, schedule A, s. 176 (1) states: "The Office of the Worker Adviser is continued. Its functions are to educate, advise and represent workers who are not members of a trade union and their survivors." However, as stated above, ARCH recommends that this service be available to all applicants and potential applicants, including members of a trade union. 19. Ministry of the Attorney General, backgrounder, 26 April 2006. 20. Canadian Human Rights Act, R.S. 1985, c. H-6, s. 48.1(2). 21. Cornish Report, supra at 45. 22. Zurich Insurance v. Ontario (Human Rights Commission) [1992] 2 S.C.R. 321 at 339 (S.C.C.). 23. Human rights legislation in Qu,bec, for example, addresses this. The Qu,bec Charter of Human Rights and Freedoms, R.S.Q., C-12, s. 74, recognizes the need for organizations to have the opportunity to file human rights complaints on behalf of persons experiencing discrimination. 24. R.S.O. 1990, c. S-22. 25. Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 1999) at 72. [La Forest Report] 26. Cornish Report, supra at 149-150. 27. See also the Workplace Safety and Insurance Act, S.O. 1997, c. 16, Sched. A, s. 123(4); and the Labour Relations Act, S.O. 1995, c. 1, Sched. A, s. 116. *** ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and others with an interest in disability issues. 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