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High percentage of complainants without counsel

|Written By Glenn Kauth

A year after the Ontario government overhauled the human rights system, the tribunal that handles cases is finding itself busy with scores of new complainants, many of them so far unrepresented by counsel.

Squaring off against complainants without counsel is a challenge for lawyers representing respondents, Patty Murray says.

For many lawyers, the changes are positive.  By providing Ontarians with direct access to the tribunal, rather than first having to go through the Ontario Human Rights Commission, cases are proceeding more quickly.

But the removal of the commission’s mandate to represent complainants is a challenge, especially since 70 per cent of them now go to the tribunal without a lawyer.

“There’s no question that for legal counsel, in terms of how we conduct ourselves, it puts you in a difficult situation in terms of dealing with unrepresented litigants,” says Patty Murray, a lawyer with Hicks Morley Hamilton Stewart Storie LLP who handles human rights cases on behalf of employers.

As a result, dealing with the other side over the phone or having an off-the-record conversation may not be an option, she says. At the same time, Murray says she suspects the new direct-access system is behind a spike in the number of cases.

“My sense is you’re getting more people pursuing claims under the new process,” she says.

In its first year, in fact, the Human Rights Tribunal of Ontario received 2,800 complaints in addition to 1,900 cases held over from the old system.

It has held 650 mediation sessions and issued about 800 decisions, most of which were interim orders rather than final dispositions.

The goal is to dispose of the majority of cases within a year by having mediation within three to four months of an application being filed. If dispute resolution fails, the case goes to hearing.

So far, complaints are going to hearing within six to eight months of filing, according to the tribunal. Its settlement rate at mediation is about 60 per cent.

For tribunal chairman Michael Gottheil, the numbers show the organization is on track.

“Within the first six to seven months, we weren’t really ramped up to capacity because the cases were at the early stage,” he says. “The second year will give us a better indicator because that will give us a full year really ramped up.”

He says while the percentage of unrepresented applicants is high, it is because the tribunal measures that statistic at the time a person files a complaint. Often, the Human Rights Legal Support Centre will have complainants file their application themselves if they appear able to do so and then come on as counsel later when the case goes either to mediation or a hearing.

Gottheil says he doesn’t believe having people appear without a lawyer is always a problem.

“From my perspective, I’m absolutely encouraged in a way that there’s such a high percentage of self-represented

applicants because we built the model on . . . ensuring access for people who may be self-represented.”

So far, the tribunal has had to reject only 36 of 2,800 applications filed because they were incomplete, something Gottheil argues is an indicator that at least the early stages of the process are accessible to people without lawyers.

As for the later stages, he’s hopeful they will prove workable as well.

“With respect to hearings, I hope that the outcomes are based on the facts and the law,” he says. “We did a lot of training with our adjudicators. Our hearing model is an active model. So we hope that our model is one in which self-represented people can effectively participate.”

Still, some people are concerned. Margaret Parsons, executive director of the African Canadian Legal Clinic, believes the new system puts victims of human rights abuses at a disadvantage compared to defendants, many of whom have greater resources. That’s because, under the new system, the commission can no longer represent complainants and investigate their cases.

“We were told that individuals will get support from the legal support centre. . . . That didn’t happen,” she says.

Parsons says the legal support centre is referring cases it can’t handle to her clinic, something legal support centre executive director Kathy Laird denies.

“I don’t think it is happening. I don’t think we’re referring any cases to them. I know we don’t because we want those cases,” says Laird.

She admits declining some cases but says the centre only does so based on the criteria it has established.

“The people we turn away are higher-income people who have other resources, particularly if the case doesn’t have merit.”

Parsons insists her clinic is getting referrals, which she says is a symptom of a lack of resources and underfunding.

“If you don’t resource it properly, it’s not going to work no matter what you do,” she says, noting she won’t take referrals anyway. “We have said to the legal support clinic, ‘Do not send us your race cases.’ We’re sending them back. We’re under-resourced as well.”

The changes to the system were controversial. They were made in part to speed up a commission-led process that allowed cases to languish before the tribunal for years.

The revamped system took away the commission’s ability to investigate and argue individual cases in favour of allowing people to file complaints themselves with, if they qualify, the help of the legal support centre.

The commission’s role has been reduced to one largely of public education and taking the lead on systemic cases of discrimination.

For people like Parsons, the changes amounted to gutting the commission, particularly since it lost its investigators.

Given the rearranging of the deck chairs, it’s hard to tell how accurate that claim is, but it is true that the commission’s staff has gone down to 55 from 140 before June 2008.

Some of those functions shifted to the legal support centre, which itself has a staff of about 25 lawyers and eight paralegals in addition to other employees, according to Laird.

Nevertheless, commission spokeswoman Afroze Edwards says it has been busy pursuing its new role. For example, it recently filed a complaint against transit agencies in Hamilton, Sudbury, and Thunder Bay over their lack of systems for announcing bus stops for blind passengers.

The move is controversial given the three cities all have plans to introduce automated systems to do so, but Edwards says the commission believes they should have the bus drivers call out the stops for now as an interim measure.

Edwards says the commission has taken on the issue of assaults against Asian anglers. As well, it recently launched a racism awareness campaign in Ontario schools.

Part of the quid pro quo for human rights advocates in launching the new system was the promise of two new secretariats at the commission; one for handling racism and one for disability issues.

So far, those secretariats remain in limbo, which is a big problem for people like York University professor Lorne Foster, who says 50 per cent of human rights complaints involve either race-based concerns or disability.

“I’m part of a movement that I think is being decimated because of new legislation,” he says.

Edwards offered little information on the status of the two secretariats, saying she doesn’t know when they’ll start up.

“It might be the ministry that makes that decision,” she says.

Still, Murray says the new system has at least had the advantage of speeding up the process.

“It’s a whole new world,” she says, noting respondents now have just 35 days to file a full response to a complaint, including a list of witnesses. “I would say that generally, there’s some consensus that the new tribunal is working to come up with effective solutions.”

Laird, too, says the legal support centre has been working hard to meet demands. So far, it has an 80-per-cent settlement rate at mediation and has resolved 220 cases by intervening before the tribunal gets involved at all.

“We think that the centre plays a really important role in getting matters resolved,” she says.

She acknowledges the challenges, however. With an increasing number of matters reaching the hearing and litigation stages, she says the big test will come as complainants in those cases seek representation.

Already, the centre has had to cancel a pilot duty counsel program for people in mediation, a move she regrets but says was necessary due to demands on its services.

“I will express some concern about whether or not the centre will be able to meet the needs of parties at the hearing stage . . . . I’m confident that we’re providing a good level of service given the tribunal’s straightforward application process.”

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