Attorney General Michael Bryant and the provincial government have big plans to make the human rights system in Ontario stronger, faster, and more effective. However, lawyers are watching the ministry's moves with a sharp eye.
Bryant announced late last month that his ministry wants to modernize Ontario's human rights system to promote access to justice.
The current scheme, which really hasn't changed much since the early 1960s, consists of the Ontario Human Rights Commission (OHRC) and the Human Rights Tribunal of Ontario (HRTO), which are there to enforce the Ontario Human Rights Code.
The OHRC receives and either settles or investigates human rights complaints. The commission then refers cases to the HRTO to adjudicate cases. The problem is that some 600 cases are waiting to be investigated by the commission and there about 3,000 active cases. The average time to resolve a case is about 11 months but some can drag on for several years.
Raj Anand, a partner at WeirFoulds LLP in Toronto and former chief commissioner of the OHRC, says the current system is dysfunctional and it has been for many years.
"Before, during, and after the time I was chief commissioner — so this isn't a self-interested statement — people involved in the system have been advocating for change for at least 15 or 20 years.
"The commission hasn't kept up with changes because they've been saddled with a design for a different era. For example, there are basically no time limits in the statute. There are a few helter-skelter time limits but there's nothing, for example, saying that an investigation will be done within a particular time period," he says.
The government's plans will see the OHRC focus on advancing human rights and preventing discrimination through public education and research. The HRTO, on the other hand, would provide a streamlined way of resolving disputes by allowing the complainant to file a claim directly with the tribunal.
Anand was pushing for a similar direct-access system years ago, under the task force of former Supreme Court justice Gérard LaForest. He sees it as a basic civil right and dismisses claims that such a system would lead to an influx of frivolous or meritless complaints.
"When you unpack that thought a little bit, it doesn't make any sense because it now gets weeded out through a process that takes at minimum six months and at maximum four or five years and in the end may not provide either side with an answer as to whether there was discrimination," he says. "That is our present system. Statutorily it's a ludicrous proposition."
Lee Shouldice, a partner at Blake Cassels & Graydon LLP and former vice-chairman of the Ontario Labour Relations Board (OLRB), says there is a bit of a fear that cases without merit may not be caught at the front end, but says he's not sure the OHRC is currently providing that function anyway.
"I'm not sure the commission right now does an awful lot of gate-keeping upfront. I received a complaint yesterday from a client in which a number of paragraphs had absolutely no relevance to human rights at all," he says. "Obviously some of it did but a lot of it didn't and nobody told that complainant, 'You should take those paragraphs out, they're not relevant.'"
Shouldice says only time will tell if the legislation is structured in a way that gives power to the tribunal to dismiss cases that on their face have no merit, much like the powers of OLRB under the Labour Relations Act.
His main concern is that the mediations that currently occur at the OHRC will not be transferred to the HRTO during the legislation shuffle. Because fewer than five per cent of cases in the current system go forward to the tribunal, it's imperative the mediation structure remains.
"I think the one thing which is very, very positive has been the mediation investment that the government has made at the commission. . . . If they're going to allow individual complaints to bring action against employers, or outside of the employment context too, directly to the tribunal, I think the tribunal itself will have to have these mediators available to try to settle and resolve some of these cases," he says.
Anand is also concerned that Bryant said the new model will put legal advisory services in place to assist and support those seeking a remedy before the HRTO, but it's not clear what that assistance will be.
"The missing part of this announcement, which is the crucial part, is what representation or assistance will be provided to the vulnerable and the poor — poor in the context of being able to afford legal services, which you don't have to be very poor to not be able to afford," Anand says. "The access-to-justice aspect, which I know is the motivating factor for the attorney general, needs to be fleshed out."
He says there are several suggestions put forward, which include creating a legal aid clinic or an independent body to assist complainants, much like the current system under the Workplace Safety and Insurance Act. Anand says it's clear that something has to be in place or it will turn into a discredited human rights system like the one in British Columbia.
A ministry spokesman had no further details about the plan.
Whatever the model or method, says Anand, it is critical that the backlogs and delay are dealt with soon.
"Delay is the single most debilitating factor in human rights enforcement in this country and it has been for at least 20 years," he says. "We're in violation of our international human rights obligations, in terms of providing the Paris Principles to provide a proper system to enforce human rights. This is long overdue."