Contentious human rights law brings changes

Both complainants and respondents are set to see some significant changes to the way human rights complaints are managed in Ontario, following the passing of Bill 107 into law last month. However, while some are content with the provisions of the new legislation, others remain concerned with the new structure and with the way the process was handled.

Bill 107, which was passed in December, will transform the roles of the Ontario Human Rights Commission and Ontario Human Rights Tribunal. Under the new legislation, individual claims will no longer be filed with the commission, but instead filed directly with the tribunal.

The commission will be taking on more of a role in public education, advocacy and investigating human rights issues. The commission will keep the ability to inquire into any matter in the public interest, and the right to intervene in any application before the tribunal or to bring its own application before the tribunal.

A publicly funded legal support centre will also be established under the bill “to administer a cost-effective and efficient provincewide system for providing legal and other support services related to all aspects of applications to the tribunal,” according to the Ministry of the Attorney General.

Andrew Pinto, co-chairman of the Ontario Bar Association’s task force on Bill 107, noted that “The OBA is quite pleased with the final outcome of Bill 107 and feels that our submissions did not only make a difference but are reflected in the outcome of Bill 107 in a couple of areas.

“The bar association was broadly supportive of Bill 107, which was this fundamental change to have applicants file directly with the tribunal, but we did want to make sure that when the commission does go about doing its new job, it has the power to do so. I think that balance was largely achieved in the final version of Bill 107.”

Pinto also notes that the OBA’s submissions on requiring written reasons from the tribunal for final decisions and the new legal support centre being added to the legislation to avoid its closure by a future government were included in the final version of the bill and are important and positive steps.

“Now the action moves to implementing all of this. The legislation is there and it calls for certain things. Now the action moves to seeing actual funding, actual appointments of qualified individuals, and the enactment of rules from the tribunal and policies from the commission that will reflect the new legislation,” he says.

However, David Lepofsky, A Crown attorney and advocate for disability rights, says there were several problems with the process leading up to the passing of the bill. One of his major concerns was the government’s decision to pass a closure motion in December to end public hearings, after promising to hold hearings in Toronto to allow community groups to have their say.

“I’ve never heard of any occasion before where closure has been used to silence community groups, much less on a human rights bill, I’ve never heard it being used to cancel hearings that were promised, scheduled, and advertised,” he says.

Lepofsky adds: “The bill that was passed was subject to many amendments on the very last day of the standing committee proceedings that were not circulated in advance for comment.”

In terms of substance, Lepofsky notes the bill gives the commission power to bring its own cases before the tribunal, but adds that “They’ve always had that power, it’s been cut back.” He also explains that the fact the tribunal will have the power to order investigations and decide which issues may be litigated and the tribunal has “the power to use an inquisitorial format for hearings” are a concern to some.

“These are huge transformations which did not get a full public airing and about which a number of us have very serious concerns.”

Lepofsky says: “They said that they were going to establish this new hHuman Rights Legal Centre and the whole idea was the critics of the human rights commission said that it’s wrong to have a human rights commission that’s a gatekeeper that can stop individuals from being able to take their cases forward.

“The new legal clinic, as it’s described in the bill, is just going to become exactly that. It does not have a duty to represent everyone. We have no idea what budget it’s going to have or how many lawyers it’s going to have, but it will have the power to pick and choose which cases it’s going to bring forward. So all we’ve done is substituted one gatekeeper for another,” he says.

“This is a cause for legitimate concern, whichever side of the case you are arguing,” he adds.
The new legislation will also have some notable implications for employers.

Bill 107 provides for an enhanced ability to litigate human rights issues in the courts, with s. 46.1 allowing plaintiffs to raise human rights code violations in the context of any lawsuit without the caps on damages that were previously in place with the tribunal, says Brian Smeenk, a partner at McCarthy Tétrault LLP in Toronto.
 “I think we’re going to be seeing not only more cases before the tribunal, but more human rights claims raised in the context of cases before the courts,” he noted.

Pinto says: “If you bring a civil action which contains a human rights element, then you have to make a mandatory election. You can either go to your civil case and bring that human rights aspect, which can be dealt with, for instance, under wrongful dismissal, but you can’t bring it again at the Human Rights Tribunal.

“The general principle is everyone has access to the Human Rights Tribunal, but there are some select circumstances where the legislation is saying, ‘Make your election and stick by it,’ ” he says.

Smeenk also notes the long investigation period the commission had previously used, “Where sometimes they would take two or three years, basically, between the commencement of the complaint and the conclusion of the investigation process,” will no longer exist and that “employers will have to be ready to get in front of the tribunal much, much more quickly than ever before.”

“Once a complaint is filed, there will be a real premium on fast and efficient investigation, and I think there will be an enhanced need to work with defence counsel very quickly and effectively,” he says.

The legislation also does “away with the frivolous and bad-faith screening provision, so they can’t be screened out without an oral hearing, they can’t even be screened out if they appear to be frivolous and in bad faith or if there appears to be no prima facie case.”

As a result of the bill, says Smeenk, employers will need to be more proactive in investigating complaints and there is an enhanced need to have good human rights policies in place, which is a positive step. Employers will also need good practices to ensure that their policies are known and implemented, he adds.

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