The Human Rights Process in Ontario: Can We Do This Better?

1. The Human Rights Process in Ontario: Can We Do This Better? January 14, 2005 University of Toronto Faculty of Law

2. Agenda for the Roundtable • 9-9:30   Breakfast • 9:30  Introduction and Setting the Stage (Lorne Sossin, Faculty of Law, University of Toronto) • 9:45-10:45: What's working; what's not working (summarizing discussions and correspondence held prior to the workshop) • 10:45-12:00: Discussion of Alternative Models and Reform Proposals • 12:00 Lunch (provided in the room) • 12:30-2:00 Continue Lunch/Small Group Discussion - (what are the most important functions of the human rights system?  what are the criteria against which reform initiatives should be evaluated? what is the optimal model for the human rights process in Ontario?) • 2:00-3:00: Plenary report-back, Wrap up Human Rights Roundtable January 14, 2005

3. Current Ontario Model(Commission Gatekeeper Model) • Ontario Human Rights Code enacted in 1962, the first Human Rights Code in Canada. The Ontario Human Rights Commission (OHRC) was established in 1961 to administer the Code. • Individual complaints must be filed with the OHRC. The Commission may initiate a complaint on its own or at the request of any person. In 2003/2004, the Commission received over 70,000 inquiries and 2450 new complaints. • The Commission has responsibility for intake, mediation, investigation, conciliation and deciding which unresolved complaints will be referred to the Human Rights Tribunal of Ontario. It has carriage of all complaints before the Tribunal . • Only complaints referred by the Commission can be heard by the Tribunal. Complainants do not have an independent right of access. • The Commission has the power under s. 34 to dismiss a complaint without investigation for a variety of reasons. Reconsideration of this decision can be requested by the complainant or respondent, but there is no appeal. In 2003/2004, 12% % of closed files were dismissed dismissed under s. 34. Human Rights Roundtable January 14, 2005

4. Ontario Model – Cont’d • Mediation services are provided before investigation is started. Mediation is voluntary and confidential. In 2003/2004, 38% of closed files were settled through mediation and an additional 13% of closed files were otherwise resolved between the parties. • If a complaint is not resolved or settled through mediation, the Commission will investigate the complaint and attempt to reach a settlement through conciliation following the disclosure of the investigator’s findings. In 2003/2004, the average age of complaints in the investigation stage was 17.5 months. • Where conciliation is not successful, the Commission may refer the complaint to the Tribunal. A party can ask that a decision to refer or to dismiss a complaint at this stage be reconsidered. There is no appeal of the decision. • In 2002/2003, a total of 58 complaints were referred to a hearing, comprising 2.97% of all complaint files closed. In 2003/2004, the referral statistics were unusual in that a group of 200 complaints were sent to the Tribunal to be heard together, in addition to 88 other complaints referred to a hearing. The 89 new hearings represented just over 4% of a total of 2038 closed files. • At a hearing before the Tribunal, the Commission has carriage of the complaint and the complainant has the right to have independent counsel. There is a full right of appeal of a Tribunal’s decision to the Divisional Court. • The Commission has responsibility for public education and human rights promotion. Human Rights Roundtable January 14, 2005

5. Concerns Raised in PreviousInvestigations and Reports • Excessive delay between filing of complaint, completion of investigation and hearing. • Complainants lose control of the process and want access to a hearing. Respondents experience the behind-closed-doors aspect of the Commission process as inaccessible and unfair. • Complainants feel pressured into accepting a settlement for fear of the Commission not sending the complaint to the Tribunal for a hearing. Respondents report pressure to accept a settlement regardless of merits, in order to avoid a hearing. • Competing perceptions that the Commission is dismissing too many meritorious complaints because of lack of resources and does not dismiss trivial or vexatious claims quickly enough. • Poor quality of investigations, particularly in connection with race based complaints. • Inability to focus on systemic discrimination, strategic litigation and education because resources are consumed by investigation of individual claims. • Perceived conflict of the Commission’s dual role: advocate for human rights (through public education and Tribunal advocacy) and neutral investigator, mediator and gatekeeper. Human Rights Roundtable January 14, 2005

6. Basic Principles for Ontario Reform • Commitment to strong and effective Human Rights protection in Ontario • Re-establishment of Ontario’s position as international leader in the field • Improved transparency and accessibility at all stages of the case resolution and decision-making process - elimination of the behind-closed-doors decision on dismissals and referrals • Improved access to the human rights resolution process for people who experience discrimination • Enhanced timeliness - what aspects of the process produce delay? Can they be eliminated? At what cost? • Cost containment Human Rights Roundtable January 14, 2005

7. Other Canadian Models:Radical Direct Access (B.C. Model) • Complaints are filed directly with the British Columbia Human Rights Tribunal (the Commission has been abolished). • Any person, or group of persons can file a complaint. Subject to certain conditions, representative claims may be brought. The Tribunal may allow individuals or groups to intervene. • A member or panel of the Tribunal may dismiss a complaint without a hearing in certain circumstances. • The Tribunal may make rules regarding, the holding of pre-hearing conferences and requiring parties’ attendance; mediation and other dispute resolution processes. • Legal representation is provided to complainants through a publicly funded Human Rights Clinic. The Clinic has recently introduced some qualifying criteria. The University of Victoria’s Law Centre runs a clinic to assist respondents requiring assistance. • No right of appeal, judicial review is available. • The Minister Responsible for Human Rights has statutory responsibility for education, as well as the power to initiate and conduct research related to discrimination. Human Rights Roundtable January 14, 2005

8. Other Canadian Models:Ontario Human Rights Code Review Task Force (Cornish) • Recommended four new bodies to administer enforcement of the Code: • Human Rights Ontario - responsible for research, education plus investigation and initiation of systemic discrimination complaints; entitled to intervene in hearings before Tribunal • Equality Rights Centres - to provide community-based, publicly funded advocacy services under the direction of Equality Services Board comprised of members of equality-seeking communities • Equality Rights Tribunal - to handle all aspect of complaint resolution: intake, case management, mediation, disclosure, investigation (if ordered), adjudication. • Equality Rights Appointments Committee - to be responsible for appointments to the three bodies above. • Complainants have the right to a hearing of their complaints by the Equality Rights Tribunal. • Tribunal adjudicators would have the express mandate to actively enquire into the real substance and merits of the case before them (similar to WSIAT). • Voluntary mediation would be available at the Tribunal. Where mediation is unsuccessful or the parties do not elect mediation, the complaint would proceed to an initial hearing before a Tribunal Officer. Officer could hear motions for dismissal for lack of merit, for further disclosure or investigation and other preliminary issues. • No access to the courts. Labour arbitrators would have authority to decide human rights issues arising in matters before them. Human Rights Roundtable January 14, 2005

9. Other Canadian Models:Strategic Direct Access (La Forest) • Complaints brought directly to the Tribunal. The Commission continues to deal with questions from the public, and assist potential claimants draft their claims. • Commission able to join significant human rights cases and initiate claims relating to systemic discrimination or new points of law. • Case management officers assigned to each claim to guide the claim through the Tribunal process. Tribunal members would have considerable flexibility to determine how a pre-hearing would be held. • Tribunal would be able to dismiss all or part of a claim at an early stage in certain circumstances. There would be no process to review the decision to dismiss. • Early and confidential mediation offered to the parties early and throughout the process. • Appeals from Tribunal decisions on questions of statutory interpretation and jurisdiction would be to the Federal Court of Appeal. • Where the Commission does not join a claim, the claimant would receive independent legal assistance at public expense. A legal clinic would be established to provide assistance with the preparation and presentation of a claimant’s case at the Tribunal. • Respondents would be able to apply to the Tribunal where they can demonstrate an inability to pay for legal services. Human Rights Roundtable January 14, 2005

10. Other Canadian Models Quebec Model • The Quebec model is a combination of gatekeeper model and limited direct access. • If the Commission decides not to pursue a remedy on behalf of a complainant, the legislation provides that a complainant can come before the Tribunal at their expense. • However, a Court of Appeal decision has limited individual recourse to the Tribunal to cases where the Commission decides not to bring a matter before the Tribunal despite having concluded that the complaint is well founded. Civil Court • Another possible model would be to eliminate the Tribunal and have the adjudicative functions performed by the civil courts. Complainants would file their claims directly with the court. • The Commission would continue to exist but without its intake or screening functions. It would have the ability to file complaints of a systemic nature or participate in individual complaints. • Legal representation could be provided through a legal aid model operating through community clinics and lawyers in private practice. Human Rights Roundtable January 14, 2005

11. Non-Canadian Jurisdictions: Australia • Regime of overlapping anti-discrimination legislation enacted at the federal “Commonwealth” level and by the State and Territorial governments. Complainants will often be in a position to elect whether to proceed under Commonwealth or State/Territory laws. • All Australian anti-discrimination legislation (at the federal and State/Territorial levels) establishes an agency which accepts and investigates complaints, and tries to resolve complaints by “conciliation”. • With the exception of North Australia, all Australian statutes appear to afford to the complainant (and/or the respondent in some states), the right to a hearing on the merits of a complaint either before a court or tribunal. Federal Level • At Commonwealth level, the agency can “terminate” a complaint for a variety of reasons including: • no prospect of settlement • more appropriate remedy available • complaint involves issue of public importance that should be heard by Federal Court • complaint lacks substance. Human Rights Roundtable January 14, 2005

12. Australia cont’d • If a complaint is terminated, the complainant has a period of 28 days in which to take their complaint to the Federal Court or to Magistrates Court. • The Commission has discretion under its legislation to assist complainants in preparing their application to court. As well, the President of the Commission can provide the Federal Court with a written report, and with leave of the Court, can intervene as amicus curiae in cases that involve a broader public interest. State/Territory • Under most State/Territorial statutes, a complainant has a right to require that their complaint be adjudicated on its merits if it is not settled by the Commission. • After the completion of an unsuccessful conciliation process, complainants have a set period (21 or 28 days) to require a referral of the complaint to Anti-Discrimination / Equal Opportunity Tribunal. Under some state laws, the Commission can file a report with the Tribunal arising out of its investigation of the complaint. • In some states, if the investigation/conciliation process is not completed within 6 months of filing a complaint, either the complainant or the respondent can require referral to the Tribunal. Human Rights Roundtable January 14, 2005

13. Non-Canadian Jurisdictions: New Zealand • New legislation in 2001 significantly changed the process and established: • a Commission with responsibility for: human rights advocacy and education; promotion of harmonious relations among diverse groups; and intake and mediation of complaints • an Office of Human Rights Proceedings that provides free legal representation to qualifying complainants who wish to take their cases to the Human Rights Tribunal • a Human Rights Review Tribunal that hears and decides human rights disputes. • Where a complaint is not resolved by mediation at the Commission stage, the complainant has the right to seek free representation from the Office of Human Rights Proceedings. At the complainant’s request, the Office of Human Rights Proceedings can undertake further investigation and mediation of the complaint, or can proceed directly to the Tribunal. • The Act provides that the Office consider the significance and impact of a complaint, and its likely success, among other factors, in deciding whether to provide services to a complainant. • A complainant can take their case directly to the Tribunal at their own expense, whether or not they first apply for free legal services from the Office. • The Commission has the legislative mandate to intervene in any Tribunal or Court proceeding involving a human rights issue of public importance. Human Rights Roundtable January 14, 2005

14. Non-Canadian Jurisdictions:US - EEOC(Equal Employment Opportunity Commission) • Enforces several federal anti-discrimination laws including: • Title VII of Civil Rights Act 1964; • Equal Pay Act; • Age Discrimination in Employment Act; • Title I & V of Americans with Disabilities Act; • Ss. 501 & 505 of Rehabilitation Act; Civil Rights Act 1991; • Pregnancy Discrimination Act) • Has education and voluntary compliance responsibility for both the private and public sector and a general public education mandate. • Responds to over 80,000 charges and files 3-400 suits in federal court each year. Around 1/3 of the suits filed are class suits, sometimes involving thousands of claimants. Private Sector Employers • For all acts, except the Equal Pay Act, complaints (charges) must first be filed with the EEOC. • EEOC has the power to investigate, dismiss at any stage, mediate, conciliate and file a suit in federal court to enforce the charge. The EEOC also intervenes in discrimination suits brought by private parties. Human Rights Roundtable January 14, 2005

15. EEOC - Cont’d • Claimants can file their own suit in federal court within 90 days after receiving a notice of “right to sue” from the EEOC. This notice can be requested by a complainant either 90 or 180 days after a charge has been filed with the EEOC (depending upon the act). The notice is issued automatically when the EEOC either decides to dismiss a complaint or if, after investigation and conciliation, the EEOC decides not file a suit in federal court. • Charge handling process: • priority investigation process for facts that appear to support a violation. • confidential mediation is available on a voluntary basis prior to investigation • if investigation does not establish discrimination, the file is closed and notice issued • where investigation establishes discrimination, conciliation is attempted • If conciliation is not successful, EEOC determines, in accordance with its National and Local Enforcement Plans, whether it will file a suit in Federal Court. • The EEOC General Counsel office has responsibility for overseeing litigation nationally and includes a Systemic Litigation Services Unit and a research unit which employs social science experts such as statisticians, economists and psychologists that assist with investigations and provide expert testimony. Federal Government Employers • EEOC co-ordinates agency-based internal investigation and complaint resolution procedures. Serious problems with delay are reported in the management of this process. EEOC provides hearings for unresolved complaints before an EEOC administrative judge. • Private suits under some Acts can be filed in court. In some cases the the Agency/EEOC process must first be exhausted. Human Rights Roundtable January 14, 2005

16. Non-Canadian Jurisdictions: United Kingdom • The UK has anti-discrimination legislation in respect of the grounds of sex, race and disability. There is currently a consultation underway to add 3 new grounds: sexual orientation, religion and belief. • There are three separate commissions: Equal Opportunity Commission; Commission for Racial Equality; Disability Rights Commission. The current public consultation is also considering merger of the three commission. • The role of the Commissions is to assist in investigating complaints, in settlement negotiations and to arrange for legal advice and/or representation for complainants. • The Commissions have discretion in deciding the degree of service that it will offer to complainants. • Human rights hearings are conducted by industrial tribunals or in the courts. • The Commissions do not have a gatekeeper function similar to the Ontario Commission. Human Rights Roundtable January 14, 2005

17. Bibliography/Key Reports • Ontario Human Rights Code Review Task Force, “Achieving Equality: A Report on Human Rights Reform” (Cornish Report) (Ontario, 1992) • Ontario Human Rights Commission, “Submission to Ontario Human Rights Code Review Task Force”, 5 May, 1992 • Report of the Auditor General of Canada, Chapter 10, “Canadian Human Rights Commission and Canadian Human RightsTribunal” (Auditor General Report) (Canada, 1998) • Canadian Human Rights Act Review Panel Report, “Promoting Equality: A New Vision” (La Forest Report) (Canada, 2000) • “Report on Legal Representation Models under the British Columbia Human Rights Code” (Black/ Thomson Legal Representation Report )(BC, 1998) • Praxis Research and Consulting Inc., “Final Report on the Public Consultations: Organization Review of the Nova Scotia Human Rights Commission” (the Praxis Research Report) (Nova Scotia, 2001) • “Equal Dignity and Rights – A Review of Human Rights in Alberta by the Alberta Human Rights Review Panel” (O’Neil Report) (Alberta, 1994) Human Rights Roundtable January 14, 2005

18. Bibliography/Key Reports • Coalition for Reform of the Ontario Human Rights Commission, “Dysfunction in the Human Rights Complaints System”, Brief to the Cornish Task Force, November 1995. • Shelagh Day and Gwen Brodsky, “Improving Canada's Human Rights Machinery: A Report Prepared for Canadian Human Rights Act Review Panel”, October 1999 • Raj Anand and Mohan Sharma, “Report on Direct Access to Binding Adjudication under the Canadian Human Rights Act”, prepared for the CHRA Review Panel, 1 December, 1999 • Deborah K. Lovett & Angela R. Westmacott, Human Rights Review, Administrative Justice Project (BC, 2001) • Bruce Porter, Homelessness, Human Rights, Litigation and Law Reform: A View From Canada in P. Lynch and D. Otto, (eds) Homelessness and Human Rights. 2005 Australian Journal for Human Rights (forthcoming) • Bruce Porter, Joanna Birenbaum, “Screening Rights: The Denial of The Right to Adjudication Under The Canadian Human Rights Act And How to Remedy It”, research paper prepared for the CHRA Review Panel”, 4 November, 1999 Human Rights Roundtable January 14, 2005

19. Bibliography/Key Reports • Andrew Pinto, “Human Rights Commissions in Canada: The Promise and Prevention of Access to Justice” Conference Proceedings, Access to Justice in the Commonwealth, British Institute of International and Comparative Law,Windsor, United Kingdom, July 2002 • Andrew Pinto, "Who's on First: Jurisdictional Disputes in Employment, Labour and Human Rights Law", OBA Forum: "Employment Regulation: Statutes and Pitfalls" 27 April, 2002 • Mark Hart and Geri Sanson, Getting Rid of the “Gatekeeper”: A Practical Model for Human Rights Reform, January 2005 • Geri Sanson, “Transparency and Accountability in the Human Rights Process”, CBA Joint National Administrative Law and Labour and Employment Law Conference, November 26-27, 2004. • R. Brian Howe & David Johnston, Restraining Equality – Human Rights Commissions in Canada (Toronto: U of T press, 2000) • Tamar Witelson, “Retort: Revisiting Bhadauria and the Supreme Court’s Rejection of a Tort of Discrimination”, (1999) 10 N.J.C.L. 149 Human Rights Roundtable January 14, 2005