Ontario Human Rights Commission as Law Enforcer Historical Roots

1. Ontario Human Rights Commission as Law EnforcerHistorical Roots public conciliation- direct responsibility education enforcement/ & vs. “enforce” in enforcement adjudication context OHRC Grievance arbitration Direct access

2. When? 1930s & 1940s: Quasi-Criminal • Insurance Act (Ont., 1932) • Racial Discrimination Act (Ont., 1944) • Municipal ordinances • Saskatchewan Bill of Rights, 1947 1950s: Fair Practices • Ontario, drawing on US model

3. Social Activism • labour, community activists, adult educators, legal academics, politicians Carmela Patrias and Ruth Frager: the actions taken against prejudice and discrimination “. . . were not spontaneous reactions against the horrific consequences of racism that had manifested themselves during the war, but the result of campaigns that were carefully and painstakingly orchestrated by small groups of Anglo-Canadian activists, and especially by key minority groups.”

4. Public Responsibility • Discrimination harms • Government and citizen responsibility • Government regulation

5. Discrimination Harms • harm to individuals: material & dignitary • harm to society: • Divisive • Anti-social • “evil”

6. Citizens & Government Sydney Lawrence Wax, 1947: “Where lies the solution to this vexing problem [of discrimination]? It would seem that remedial action leads in two directions. One path encompasses the individual and his duty as a citizen of a democratic state; the other path leads to parliament and the protection through legislation of our basic rights and privileges.” • e.g. Canadian Association for Adult Education

7. Government-Regulated Businesses & Public Spaces Alderman Nathan Phillips, 1950: ‘When a person comes to the state for a license to serve the public, it should be on the understanding they serve all the public and not just who they want to serve. It is not a license to do what they like.’ • Skating rinks, etc. • Dissent in Christie v. York Corp.

8. OHRC & Public Responsibility • public interest • public resources • Tarnopolsky, 1968: “The consolidation of human rights legislation into a code to be administratively enforced by an independent commission insures community vindication of the person discriminated against. • debate over direct access as “privatizing”

9. Why Law? • Coercive power • Even from an advocate: ... the biblical injunction to love thy neighbour “loses its beauty if legally enforceable”. • Law for discrimination vs. Education for prejudice e.g Alan Borovoy, 1965 “Too often we confuse the struggle for human rights with the passion for brotherly love. In my view, it is not really necessary for an employer to like Jews, Negroes, or New Canadians. It is only necessary that he hire qualified Jews, Negroes and New Canadians. One can be fair in one’s conduct without being lofty in one’s attitudes. The opponents of human rights legislation fail to make this distinction. … Every law and all law derives from the simple fact that people do not like each other. If it were otherwise, law would be superfluous.” … but law is also educational

10. How Enforcement? • emphasis on conciliation and persuasion • Velvet glove vs. iron hand / iron fist • US experience – very few cases referred to adjudication • Ontario: • FEPB, Ministry of Labour • Decisions both about conciliation & referral to tribunal made by Minister, on advice of Director of FEPB • OHRC – emphasis on settlement, gatekeeper to tribunal

11. How Did it Work? • Fewer complaints than anticipated – need for support and assistance • Few resolutions: • US data for fair employment practices = 32% of claims “satisfactorily adjusted” • Ontario data for fair employment practices = 4 out of 45 complaints validated • Need for more systemic approaches

12. Discrimination & Problems of “Proof” • Even with conciliation - low rates of resolution • Essential for adjudication • “An American Dilemma – Proof of Discrimination” (1949) Chicago Law Review “Nevertheless, the essential element of discrimination in its legal context is the mental process of the alleged discriminator. … The lawyer … [unlike the sociologist] because he is, in many cases, forced to deal merely with a single instance of unequal treatment is deprived of other instances with which he can make a comparison. As a result he must look directly to the mental processes of the alleged discriminator in order to determine whether there has been discrimination.” Direct discrimination: intentional connection a factor Adverse effects: impact connection

13. Discrimination & Stigma • Legacy of moral condemnation • Sid Blum, 1963: ‘If a respondent is asked whether he has committed a discriminatory act, almost invariably he will deny it. Once having denied it, his very self-respect will impel him to resist conciliation overtures. A settlement would be perceived as an admission of guilt.’ “stigma of being labelled a human rights violator”

14. Law as a Tool • Fair practices in the workplace • Conferences, committees • “competing venues” for enforcing as response to OHRC process, e.g. grievance arbitrations

15. Direct Access & Law as a Tool • “control” • Complexity of legal process • Challenges of “proof” • Imbalance in resources • law “in context”