Lawyers are concerned vacancies at the Human Rights Tribunal of Ontario are contributing to significant delays and weakening human rights protections in the province.
“It's just unworkable. I can't recommend my clients go to the human rights tribunal anymore because of the delays,” says Kate Hughes, a partner at Cavalluzzo LLP in Toronto. Hughes also serves on the practice advisory committee for the tribunal. Hughes, who acts for applicants, says she has not filed a human rights complaint in 2019. She says she is not confident applications would be heard in a timely manner.
“It's a travesty,” says Hughes, who says things at the tribunal have worsened since last year's provincial election. “I really think that the government has to re-think its plan about human rights. I don't know what its plan is, but starving it to death isn't it.”
In a May 3 email to Law Times, a spokesperson for Tribunals Ontario, to which the HRTO belongs, said the government will provide “further updates on attempts to streamline and improve processes” at the Ontario Bar Association's annual update on human rights scheduled for May 29.
The Ministry of the Attorney General told Law Times in an email an advertisement for full-time members ended on April 12 and the HRTO is recruiting to fill this position. There are no full-time members listed as tribunal adjudicators.
The tribunal is made up of vice-chairs and members. Some are full-time, some are part-time.
Delays at the tribunal negatively impact those who have been accused of human rights violations, says Ranjan Agarwal, a partner at Bennett Jones LLP in Toronto.
“Employers consider themselves part of the human rights system. They want to have access to justice as well,” he says. “People have this stereotype that employers who are respondents are happy for the delay because it just pushes off the inevitable reckoning that they're going to have. In my experience, that's just not true. If you've been accused of a human rights violation, and you don't think you did it, or you don't think your employee did it, you want your day in court. That way you can be vindicated. You don't want to wait months or years for a hearing to happen and then months for however long for a decision to come out if ultimately you think you're right. You want to put that behind you.”
The government has previously acknowledged a lack of adjudicators is contributing to delays.
On Oct. 3, the tribunal posted a notice on its website that it was “experiencing a shortage of adjudicators.” This meant the tribunal was having difficulty meeting its internal service standards. These standards, also posted on the tribunal's website, aim to offer a first mediation date that is within 150 days of both parties agreeing to mediation. If parties do not agree to mediation, or if a mediation is not successful, the file moves to a hearing. The service standards aim to offer the first hearing date for parties within 180 days of an application being approved for a hearing. The tribunal aims to meet its service standards 80 per cent of the time, its statement about service standards says.
In its 2017-2018 annual report, also released in October, show the tribunal is struggling to meet these standards. On average, first mediation dates are scheduled within the first 151 days after both parties agree to mediation. The service standard of 150 days was met 84 per cent of the time that year. This is down from 2016-2017 when the service standard was 92 per cent of the time and first mediation dates were scheduled, on average, 109 days after parties agree to mediate.
In 2017-2018, the tribunal only met the standard for scheduling hearing dates 38 per cent of time. Hearings were, on average, scheduled for 181 days after the application is ready for a hearing. In 2016-2017, the average length of time was 175 days, and the service standard of 180 days was met 34 per cent of the time.
The tribunal has scheduled a mediation blitz for 800 cases over the summer months, the tribunal said in its email to Law Times. It said cases are usually resolved in 12 to 14 months.
The government is reviewing all of its tribunals, the tribunal told Law Times in its email. In January, all tribunals were merged under Tribunals Ontario. Linda Lamoureux was appointed executive vice-chair of Tribunals Ontario for a one-year term. In March, chairs of the OBA's administrative law section, labour and employment law section and constitutional, civil liberties and human rights law section wrote Lamoureux for more information about how appointments at the tribunal are made.
Lawyers find the number of short-term positions at the tribunal troubling.
According to information posted on the Public Appointments Secretariat website, nine part-time members have been appointed to the tribunal this March. Of those, eight have appointments that end this year; one has an appointment that ends in February 2020.
“Who's going to give up their practice and their clients and their job essentially to come into a tribunal when it's only a one-year appointment?,” says Wade Poziomka, a partner at Ross & McBride LLP in Hamilton. Poziomka, chair of the OBA constitutional, civil liberties and human rights law section, was one of the authors of the letter to Lamoureux.
“When you step into a new role, you're switching gears from maybe being a litigator to being an adjudicator,” he says. “There's a learning curve. I think it's helpful to bring in people who have expertise in human rights and it detracts from that learning curve.”
Poziomka is also a member of the practice advisory committee for the tribunal.
“(Short terms) of course affect the quality of the people who are applying, and it affects the independence (of the tribunal),” says Hughes. “People are not there for lengthy terms, and could be worried about these short-term contracts. We will see judicial independence have a significant impact.”
Many human rights complaints are filed against public bodies, including government ministries and agencies, says Hughes. The government appoints human rights adjudicators, so adjudicators may hesitate to rule against government agencies if they know their appointments are ending and they may be seeking re-appointment.
Experienced lawyers may not want to leave established practices for short-term appointments that come with lower salaries, she says.
According to the tribunal's annual report, 50 per cent of applicants are self-represented at tribunal hearings. (Only 29 per cent are self-represented at mediations, which occur before hearings.) Delays at the tribunal are especially stressful for self-represented applicants, says Hughes.
“I don't know how human rights applicants who are unrepresented could navigate this process,” she says.
Hughes introduces motions for her clients and fights for hearing dates to be scheduled, even though she faces delays. Self-represented applicants don't have access to the same supports, she says.
Antonella Ceddia, a lawyer with the city of Toronto who is also on the HRTO's practice advisory committee, says there are several ways the tribunal could be more efficient.
“You want to look at the system as a whole,” she says. Introducing minimal filing fees or increasing front-end screening to ensure only reasonable complaints are heard may be helpful, although any action must be carefully studied, she says.
“What we want is a human rights system that has credibility on both sides that applicants respect, that respondents respect, that society respects as a body that's fair, that's neutral, that processes things in a fair way, which is quickly.”