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Concerns continue over new human rights system launching next summer

|Written By Christopher Guly

Concerns still swirl around Bill 107 and what impact the new role the legislation ascribed to the Ontario Human Rights Tribunal will have when it begins directly receiving applications next year.

Ontario’s new direct-access system for human rights complaints will ‘open the floodgates’ to grievances, says David Elenbaas.

For example, with the Ontario Human Rights Commission no longer involved in screening complaints as of June 30, 2008, the new direct access system “will open the floodgates” for people to file grievances, predicts David Elenbaas, chief professional partner, and head of the employment and labour relations practice group at McMillan Binch Mendelsohn LLP.

“There doesn’t seem to be any ability to weed out complaints that are frivolous or vexatious, as there was under the old legislation,” he says, adding individuals will have more time - a year, as opposed to six months - to file.

Elenbaas expects there will be more hearings, since the tribunal won’t be able to dismiss complaints, until both parties in a dispute make oral submissions.

Not all applications will result in formal adjudication proceedings, since the tribunal gives the option to settle through mediation, says Michael Gottheil, the tribunal chair and a former Ottawa labour, employment, and human rights lawyer.

Meanwhile, higher damage awards are also likely, says Elenbaas. In addition to having the power to order monetary compensation or non-monetary restitution, the tribunal will be able to order compensation or restitution for losses caused by injury to dignity, feelings, and self-respect. The Human Rights Code Amendment Act, which received royal assent last December, placed no limitations on the quantum of such awards, he explains.

“Previously, there was a $10,000 cap on mental-distress damages, and that’s now gone,” he says.

But Toronto labour and employment lawyer Patty Murray says the consensus within the legal community is that the existing system was “irretrievably broken.’

The new direct-access model for the tribunal will expedite the time it takes to get a hearing in which the merits of the case could be more swiftly determined, says Murray, a partner with Hicks Morley Hamilton Stewart Storie LLP.

“Some employers will be happy in being able to quickly get to a hearing so they’re not faced with a process in which significant time, resources, and legal fees are spent over a complaint that could stay in the system for three, four, or five years,” she says.

“There are other employers who may be reluctant about the impact of the new system, because under the old system, there was more time and opportunity for complaints to be settled, resolved, or otherwise dealt with,” says Murray, who chairs the human rights practice group at Hicks Morley.

She adds there are concerns the system may “disenfranchise those who are not particularly sophisticated, if they get to a hearing.”

Though the tribunal will not provide lawyers to complainants, those who file an application will be able to obtain assistance from the Human Rights Legal Support Centre, a newly created independent body.

Helena Birt, former provincial manager of Family Court duty counsel at Legal Aid Ontario, is the centre’s transition director. A part-time chair and four other part-time board members will be appointed by order-in-council. The tribunal recently hired nine new vice chairs to oversee individual cases, and more will be recruited to handle the increased caseload at proclamation, says Gottheil.

Though the Human Rights Commission will still be able to initiate applications and intervene in proceedings at the tribunal, its role in directly dealing with complainants will gradually diminish after June 30.

It will continue to be a party before the tribunal to complaints it refers between now, and six months after the official transition date, but complainants will no longer have the support of the commission in the future, says Andrew Pinto, a Toronto employment and labour lawyer.

“In 99 per cent of the cases before, once the commission decided to take on a prosecutorial role to defend the public interest, complainants would rely on the commission’s lawyer, since there was an overlap between the public interest and the complainant’s interest,” he says, adding that come June 30, and for six months after, an average tribunal hearing “will include a complainant and his or her lawyer, and the respondent with his or her lawyer.”

It will be the Human Rights Legal Support Centre, not the commission, which will assist complainants with making their cases. 

“The pessimists say that, if the legal support centre is either under funded or its mandate is too restricted, it will only choose to help a subset of people, and too many vulnerable people will be just left on their own, since they will no longer have the commission as an advocate,” says Pinto, adding:

“They won’t qualify for whatever criteria the new centre will have. Complainants may be expected to go to the tribunal and slog it out with a respondent who may be represented by a big Bay Street law firm.

“Optimists say that you haven’t left vulnerable people in the lurch, because you have given them greater and direct access to the tribunal, and have assisted them by giving them resources, ranging from information, to online support, to legal representation.

“The optimists will also say that the whole point of the new system is to not have the commission monopolize the process to the point of having four-to-five-year delays to investigate a claim. The hope is that through more flexible procedures, the tribunal will be able to shorten the pipeline from the time it received an application to the time it disposed of it,” says Pinto, who co-chaired the Ontario Bar Association’s task force on Bill 107.

He notes the tribunal will be able to limit the number of witnesses and cross-examination time, and determine whether or not an expert report is filed. Under the draft rules, the system will also require that both the complainant and respondent provide more information about the case “to the extent that it’s available right at the front end,” says Pinto, who is a sole practitioner affiliated with the Toronto firm Wray James LLP, and an optimist.

So is internationally acclaimed constitutional and human rights lawyer Mary Cornish, who chaired the Ontario Human Rights Code Review Task Force that produced the 1992 Achieving Equality report for the Ontario Ministry of Citizenship recommending the direct-access model, which forms the basis for the new system.

One of the report’s recom-mendations was the establishment of regional “equality rights centres,” which under the new system will be the Toronto-based Human Rights Legal Support Centre. But Cornish challenges the belief that under the old system the commission provided direct legal assistance to complainants appearing before the tribunal.

“There was no right to legal counsel and the Human Rights Commission had control over whether a complaint ever got to a hearing, and so many never got to one at all because a complaint was dismissed without a hearing,” says Cornish, a senior partner with the Toronto firm Cavalluzzo Hayes Shilton McIntyre & Cornish LLP.

“When the commission decided to go ahead, generally it had legal counsel, but even then, under statute, the commission represented the public interest and not the complainant. Complainants were often unrepresented at hearings, while some would pay for their own counsel,” she says.

Cornish notes that, under the new system, the legal support centre will provide direct legal assistance, and the commission will be able to focus on “systemic change” and conduct public inquiries.

“Adjudicating complaints is only one way of being proactive in a human rights system. Attempting to secure changes in society to reduce discrimination and promote equality can be achieved without relying on individual people making complaints, and spending time caught up in an adjudication procedure,” she says.

“It will have its moments as the system gets itself off the ground, but it’s going to be an exciting process, and I think it will lead to a much better way of enforcing human rights in the province.”

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