Human Rights

RE: Bill 107 - Amendments to the Ontario Human Rights Code

Dear Premier McGuinty, Honourable Michael Bryant and the Justice Policy Committee:

We are writing to express our concerns about the proposed amendments to the Ontario Human Rights Code (“Code”) under Bill 107. The fact that the government of Ontario is examining amendments to the Code is a clear indication that it is committed to changing the current system in order to make it more effective for all parties involved in the human rights process. Changes to the current system are much overdue.

As you know, the human rights legislation has quasi-constitutional status because it enforces the fundamental values of our society. It is meant to ensure that the rights of the most vulnerable groups in Canada are protected. These groups are the most vulnerable because they are often largely economically disadvantaged because of systemic discrimination, and thus, do not have the financial resources to fight violations of their human rights. In addition, for such groups, there are additional barriers such as language and health that prevent them from fully exercising their rights in Canada.

We note that there are positive provisions in Bill 107, such as the creation of an Anti-Racism Secretariat and a Disability Rights Secretariat and the ability to create other advisory committees on other issues. However, there are concerns that the proposed legislation does not clearly state the purpose, the actual work to be undertaken and the resources attached to these initiatives.

It is not difficult to foresee that the current proposed changes will further marginalize immigrants, persons with disabilities, racialized people, women, Aboriginal people and other disadvantaged groups. There are provisions that will clearly adversely affect the people that the Code was intended to protect. The proposed direct-access system is not the solution to the back-log and the workload of the Commission. The proposed system is nothing less than privatizing access to justice and the same ineffective model recently implemented in British Columbia. This will result in a two-tier, semi-privatized human rights system in which complainants with financial resources will hire lawyers to help them navigate the complex process, while marginalized people will be on their own. Alternatively, if a direct access model is to be considered, then an individual should have choice whether to take a complaint directly to the Tribunal or whether to access publicly funded investigations and legal representation. It should not take away existing rights of individuals to access publicly funded investigation processes and legal representation provided by the Commission or the public interest advocacy role of the Commission.

In addition, we are concerned about the proposed changes to the role of the Commission. The Commission must continue to have a role in assisting complainants with the filing, investigating, compelling evidence, mediating and overseeing settlements. Our experience has been that many of our members who file human rights complaints do not understand the process or the requirements for filing a complaint. In addition, many members do not know what evidence is required of them before a Tribunal.  Some of our members are fortunate to have assistance from their union. However, there are many non-unionized workers and other individuals who do not have anywhere to go to for assistance and support. Thus, it is crucial that people are able to access fully funded public legal representation throughout the human rights process.  This must not be left at the discretion of the government funding; the legislation must be clear that all costs will be covered.

The fact that the Commission's services: mediation, investigation, conciliation and litigation are integrated, though largely under-funded, has meant there is proven capacity for the system to address, not only individual cases, but also cases in which systemic and intersecting discrimination exists. There have been ground-breaking policies and positions that have led the Commission to become a leader of human rights nationally and internationally.

Nonetheless, the current system is not dealing with human rights complaints in a timely way. It takes too long to deal with complaints. The reason for this is obvious: lack of adequate financial resources. Despite the steady growth and consequent stress on the Commission’s capacity, the government of Ontario has not kept up with the needs of the Commission.  This point is made clear in looking at the Commission's budget in 2004-05 ($12.5 million) which was approximately the same back in 1995-96 ($11.3 million). If the government of Ontario was truly committed to human rights and wanted to continue to be leaders at the national and international levels, then adequate resources must be allocated for its human rights processes.

There is a need to examine the Commission’s role in the process. Currently, the Commission has a ‘gate-keeping” role. Human rights advocates have been critical of the way this role has been exercised by the Commission in the past because it has caused substantial delays in processing complaints. In addition, there has been criticism of the Commission’s ability to make the final decision on whether or not to refer a complaint to a Tribunal and to prevent complaints from being dealt with on their merits. This criticism is, in part, based on the fact that the only recourse to review a Commission’s decision is through a judicial review process in the court system.

The proposed legislation transfers the “gate-keeping” or screening functions to the Tribunal.  However, the proposed legislation will give the Tribunal this function without providing any guarantees that it will screen complaints fairly. The Tribunal will have the ability to dismiss a complaint without any hearing and charge user fees for complaints at the Tribunal. The ability of courts to review decisions of the Tribunal will also be reduced. The proposed legislation does not guarantee the accountability and independence of the Tribunal. The changes will only result in transferring the delays and processing of complaints from the Commission to the Tribunal. Consequently, there is concern that complaints will not be properly dealt with and may be dismissed without proper procedural mechanisms, guarantee of due process and access to recourse avenues.

We believe that the Commission needs to continue to play a crucial role at the intake stage in order to ensure that complaints are related to human rights. In addition, Commission should address complex and systemic complaints and have further powers in monitoring and enforcing settlements. These kinds of issues should be discussed with key stakeholders who have gone through the process and can provide feedback about their experiences. The proposed legislation does not adequately deal with the problems of the current human rights system and in fact, will only further perpetuate the discrimination faced by marginalized groups.

We are further concerned about the consultation process undertaken in considering the changes that are needed under the current system. There have been limited consultations to date. Meaningful consultations are needed with important stakeholders including groups affected by the changes, unions and community organizations and clinics that assist with the human rights process. We urge you to adopt a timetable for public hearings on the Bill that will enable all stakeholders to make submissions on what is currently working and what is still needed. The consultation should be initiated in the fall of this year and not over the summer when many people are not available.

The PSAC supports the recommendations of the Canadian Labour Congress, other labour and community groups advocating the following steps aimed at strengthening, protecting and promoting human rights in Ontario:

1. The government should amend the Ontario Human Rights Code to make the Commission truly independent. The Commission should be made an independent office of the Legislature and report directly to the Legislature, not a government Ministry.

2. The government should amend the Ontario Human Rights Code to ensure that all appointees to the Commission and the Tribunal are experts in human rights. Commissioners and Tribunal members should be selected by an all-party committee of the Legislature, not the Cabinet, and the Ontario Human Rights Code should require that they be experts and have experience in the field of human rights.

3. The government should provide additional funding and resources to achieve the following:

   • Significantly reduce processing time of complaints. Mediations should be completed within three months, complex investigations should be completed within one year, and a Tribunal Decision should be rendered within two years of the filing of the complaint or other such reasonable time frames.

   • Procedures to ensure that complaints involving minimal investigation, crisis situations, and significant public interest issues are fast-tracked through the system.

   • Procedures to ensure that complaints that require investigations have access to publicly fully funded investigators (through the Commission).

   • Ensure that in every case, the Human Rights Commission is actively involved, both at the settlement negotiations and at hearings and, to advocate, among other things, for the public interest and for public interest remedies.

   • Powers to enforce and monitor of settlements issued by the Tribunal.

   • The implementation of a long-term plan to prevent discrimination and reduce the number of individual complaints. The plan should include a significant increase in the number of Commission-initiated complaints, public education activities and other systemic initiatives.

   • Guaranteed interpretation services for parties who communicate in languages other than English or French.

4. The government should not adopt the current proposed direct-access system in Ontario. The implementation of such a system will privatize the human rights system, undercut the public interest, be more expensive, and be a disservice to complainants with limited economic means. Alternatively, if a direct access model is to be considered, then an individual should have choice whether to take a complaint directly to the Tribunal or whether to access publicly funded investigations and legal representation. It should not take away existing rights of individuals to access publicly funded investigation processes and legal representation provided by the Commission or the public interest advocacy role of the Commission.

5. The government should have a province-wide consultation in the fall, not the summer, on reforming the human rights system in Ontario, which is open, transparent, and inclusive.

Thank you for your time and consideration of this matter. We look forward to hearing from you.

Sincerely,

Ed Cashman PSAC, REVP, NCR Region

Gerry Halabecki PSAC, REVP, Ontario Region