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FLAWED PROCESS - FLAWED BILL

Date: 
Friday, September 1, 2006

A Brief to the Ontario Standing Committee on Justice Policy

Re: Bill 107: the Human Rights Code Amendment Act

By: The Alliance for Equality of Blind Canadians / L'Alliance pour l'ÉgalitÉ des Personnes Aveugles du Canada (AEBC)

PO Box 20262
RPO Town Centre
Kelowna, BC V1Y 9H2
Tel: 1-800-561-4774
E-mail: info@blindcanadians.ca

Members of the Standing Committee on Justice Policy:

Thank you for affording me, on behalf of the AEBC, an opportunity to have input into the crucial area of the future of human rights protection in Ontario.

BACKGROUND:

The Alliance for Equality of Blind Canadians/ L'Alliance pour l'Égalité des Personnes Aveugles du Canada (AEBC), founded in 1992 as the National Federation of the Blind: Advocates for Equality, is a national, not- for-profit organization of Canadians who are primarily blind, deaf-blind and partially sighted. The organization's work focuses on public awareness and advocacy on a wide range of blindness-related issues.

The AEBC is a human rights organization that is active in Ontario. Three of its nine local chapters are in Ontario, and three of its seven-member national Board of Directors lives in Ontario.

LACK OF OPEN CONSULTATION:

For months, the Honourable Michael Bryant, Attorney General for Ontario, has been talking about all the consultations he has been conducting. After numerous submissions to previous OHRC research projects, the AEBC should be fairly well known within the human rights community, yet no requests for input nor responses to letters have been received, with the exception of the invitation to participate in the briefing that took place prior to the introduction of Bill 107 (discussed further below). Aside from the AODA Alliance, what other groups in the disabled community has the Honourable Attorney General consulted, and how many of these are consumer groups that truly "represent" us?

THE NATURE OF HUMAN RIGHTS CASES:

People of colour, people with disabilities, people on public assistance, women, and other minority groups often lack an equitable degree of social, legal, political, and economic power in Canadian society.

This often leads to a great power and resource imbalance between the parties, particularly in human rights cases, e.g. applicant vs. employer, employee vs. employer, renter vs. building operator, passenger vs. transit operator, and citizen vs. a Ministry of the Ontario Government. This is why Human Rights Commissions were created.

This resource imbalance is likely to be further exacerbated should Bill 107 become law, as complainants at the Tribunal may have to face respondents represented by high power and high cost law firms like McCarthy Tetrault, Hicks Morley or similar. Such an outcome will only discourage potential complainants from seeking redress from incidents of discrimination.

To date, Human Rights Commissions have, in part, been expected to mitigate these power imbalances. To be credible with equality-seekers, any system of human rights protection must be, and must be perceived to be fair and open, and it must also ensure that its processes and decisions are not overly affected by these traditional power and resource imbalances between the parties.

USER FEES:

At present, neither the Commission nor Tribunal can charge a complainant a user fee for filing a human rights complaint, or for having a hearing before the Human rights Tribunal. In addition, the Human Rights Tribunal cannot order the complainant to pay the respondent's legal costs, even if the case is lost.

Further, under the current Code, if a respondent goes to court, either on appeal or a judicial review application, it will name the Commission as a party to the court proceeding. If the Commission defends the appeal or judicial review application, and is unsuccessful, it is the publicly-funded Human Rights Commission, not the complainant that may be forced to pay the respondent's legal costs, which can amount to thousands of dollars.

These protections represent an important element of an accessible human rights system, and must be continued, as many if not most complainants are low or middle income earners.

Under Bill 107, the Human Rights Commission will no longer be a party to most Tribunal proceedings. Thus, if a complainant loses his or her case at the Tribunal, it will be only the complainant, and not the Commission, who could be liable to pay the respondent's legal costs.

This financial risk could deter many individuals who feel they have been discriminated against from filing a human rights complaint.

It is therefore recommended that:

Bill 107 be amended to provide that neither the Tribunal nor any court may order a complainant to pay any legal costs.

HISTORY OF HUMAN RIGHTS PROTECTION FOR PERSONS WITH DISABILITIES IN ONTARIO:

In 1979-80, I had the distinct honour to co-chair (along with Mr. Lee Rullman, then Executive Director of the Ontario March of Dimes), a group that was known as the Coalition on Human Rights for the Handicapped. After I became a civil servant and Mr. Rullman moved on to other work, this Coalition achieved the first human rights coverage for persons with disabilities in Ontario.

Achieving this first coverage was hard won! It came about through a true consultative process.

In July, 1977, the Ontario Human Rights Commission (OHRC) published the report, "Life Together", which reviewed the Commission, and made numerous recommendations to expand the breadth of human rights protection for Ontarians.

When the Conservative Government under Premier Davis introduced Bill 168, the so-called Handicapped Rights Act, a coalition of consumer organizations and service agencies came together. We discussed whether we should seek to amend that Bill, or take our chances and insist on its withdrawal and work for a better statute.

The process was truly amazing! Community advocacy organizations and service agencies, who often do not work very well together, came together. Consumer groups led and service agencies provided valuable support. This is how our community should work generally.

At the beginning, there were two positions within this diverse group--seek to improve the Bill by allowing it to proceed to Second Reading and afterwards to a standing committee for review and amendment, or seek its withdrawal and take our chances, either with some kind of consultative process or await a new Bill from the Government.

Although the Coalition was repeatedly warned that withdrawal of Bill 168 could result in further delay of long-awaited human rights coverage for several additional years, after intensive discussions, the Coalition adopted one unified position, and decided to go ahead with one simple and concrete demand: withdraw Bill 168 and consult with the Coalition. After a meeting between the Coalition and Premier Davis and two other cabinet Ministers, the Government agreed. The consultations began, and they led to a consensus and the enactment of much stronger human rights coverage that is still in force today.

USE A SIMILAR APPROACH WITH BILL 107:

We believe a similar approach should be followed in the current instance--put Bill 107 on hold, and enter into an open consultative process with representatives from various equality-seeking sectors, and develop a new system of human rights protection and enforcement that will receive the kind of broad support from equality-seeking communities that human rights coverage deserves.

THE ELUSIVE SEARCH FOR TRUE EQUALITY: Achieving our first human rights protection was a proud day for Ontario's disabled community and, at that time, we all believed that achieving an equitable legal framework would substantively advance the equality that groups such as persons with disabilities were seeking. We expected that human rights Commissions would greatly assist us.

However, while many individuals have gained redress from incidents of discrimination, over 20 years later, human rights commissions have not lived up to our expectations, and the search for true equality, free from individual and systemic discrimination and discriminatory practices still remains an elusive goal.

The AEBC suggests the reasons for this failure stem far less from structural failures of the OHRC (though further streamlining of the Commission's complaints system and an increased emphasis on dealing more with systemic complaints would be welcome), than from chronic under-funding of the OHRC, the need for greater independence for the Commission, and a lack of political will on the part of all three political parties to do what is needed to deal with the many inequities in Ontario society that still need redress.

To bring about the true equality that persons with disabilities and other equality-seeking groups still seek, the Government of Ontario must also introduce programs that will deal with the chronic poverty, unacceptably high level of unemployment and isolation that remain the reality of so many persons with disabilities today.

EXPANDED COMMISSION ROLE IN ELIMINATING SYSTEMIC DISCRIMINATION:

During the debate on Bill 107 in the Ontario Legislature, the Attorney General indicated that "Under this proposal, the commission will focus on prevention, public education and policy analysis. It will be able to focus on the systemic, and it will have the stick that it needs."

Over the past several years, the Commission has conducted research into a number of areas, including balancing conflicting rights, the intersectionality of some human rights complaints, racial profiling, and restaurant, transportation and education access for persons with disabilities.

The AEBC and many other advocates support strengthening the Commission's role as a researcher, public educator and advocate of human rights to prevent and eliminate systemic issues before they lead to complaints.

ENFORCING THE AODA:

Bill 107 seriously breaks faith with 1.5 million Ontarians with disabilities. During deliberations on the Accessibility for Ontarians with Disabilities Act (AODA), many community organizations called upon the Ontario Government to create a new enforcement body to enforce the AODA. However, the Government said it wasn't needed since persons with disabilities could use the existing Human Rights Commission's complaints process to enforce their rights and the provisions of the AODA. The disability community accepted the government's argument on this point, and supported the 2005 AODA.

However, Bill 107 removes most of the Human Rights Commission's public enforcement teeth that Ontario's disability community was counting on to enforce their rights whenever needed. This breach of faith is not corrected by any other provisions in Bill 107.

GRANDFATHERING RIGHTS ENFORCEMENT:

Under the current system, persons who believe that their rights under the Code have been violated can file a complaint with the Ontario Human Rights Commission, which is charged with investigating complaints, attempting to effect a settlement, and determining which complaints will be dismissed or referred to the Human Rights Tribunal of Ontario ("Tribunal") for a hearing on the merits of the claim. A number of AEBC members, including myself, have cases currently working their way through the existing system, and those complaints were filed in good faith, assuming they would be fully dealt with by the Commission's current processes.

Under the provisions of the proposed Bill 107, cases of discrimination would go directly to the new Tribunal, without the kind of publicly-funded, professional mediation and investigation services that are currently available through the Commission.

The AEBC agrees with the AODA Alliance that any complainants who file cases prior to the proclamation of any new Act should be given the option of having their cases completed through the current OHRC processes.

DISABILITY COMPLAINTS STILL HIGHEST:

Since the early 1980's, when persons with disabilities first achieved coverage, the OHRC has received an increasing percentage of complaints from the disabled community, and this disproportionately high number of complaints continues to be filed.

New disability-related complaints rose from 41.2 per cent of all new claims in 2000-2001, to 48.5 per cent in 2001-2002, to almost 66 per cent in 2002-2003. In 2005-2006, the Commission reports that 54.11 percent of complaints filed cited disability as a ground of discrimination.

Many of these complaints are complex, requiring extensive investigation and attempts to mediate. Some have suggested the proposed new system whereby complainants will take their cases directly to the Tribunal will encounter a system similar to Ontario's current Small Claims Court system. However, many complaints of discrimination--especially those involving race or disability--are far more complex and require extensive investigation and adjudication.

SECRETARIATS NO SUBSTITUTE FOR THOROUGH KNOWLEDGE:

Establishment of the proposed Disability Rights and the Anti-Racism Secretariats may provide some additional internal expertise that may prove helpful, though any such Secretariats must never be used as a substitute for ongoing, extensive staff training. In addition, how will the proposed Disability Rights Secretariat differ in function from the current Accessibility Directorate of Ontario?

FUNDING:

Funding for human rights work is one of the most critical issues! It has simply not kept pace with the expanded level and complexity of cases that is today's reality in Ontario. In 2004-05, the commission's budget was $12.5 million. In 1995-96, the commission's budget was $11.3 million. Funding for human rights education and enforcement in Ontario must be substantially increased!

Bill 107 would require complainants to take their cases directly to the Tribunal. Consider the individuals who are typically appointed to sit on such Tribunals, and the salary they receive for their work. Contrast that with the salary paid to civil servants under the current Commission. This contrast alone amply points out the desperate need for increased funding for human rights enforcement in Ontario.

Any system, whether an amended version of what currently exists, or the new system proposed in Bill 107 requires a significant infusion of additional funding if the current Government is serious about bringing about a more successful system of human rights protection for Ontarians.

What will be the level of funding available to the OHRC and its Tribunal?

GATE-KEEPING:

It has been suggested by proponents of a new system that too many complaints are arbitrarily dismissed by the OHRC's current gate-keeping system. While some complaints are undoubtedly dismissed that should go forward, evidence for the extent of this problem remains inconclusive.

Bill 107 proposes a new gate-keeping system for the Tribunal--how is this new system any different from the current approach?

SUPPORT FOR COMPLAINANTS:

During the Briefing prior to the Bill's introduction, and since, the Minister and Ministry staff have clearly stated that all complainants will be fully supported in bringing their cases before the Tribunal.

When introducing Bill 107, Attorney General, the Hon. Michael Bryant stated: "Today, with this bill, we would add a third pillar to the human rights system: full access to legal assistance. We would establish a new human rights legal support centre to provide information, support, advice, assistance and legal representation for those who are seeking a remedy before the tribunal."

Where is this commitment contained in the Bill? Unfortunately, the Bill does not follow through on this promise.

Bill 107 doesn't guarantee discrimination victims legal representation; it only provides the Attorney General the ability to make agreements to pay organizations to give legal advice or representation.

Sec. 46 of the Bill only provides:

Legal and Other Services

46.1 (1) The Minister may enter into agreements with prescribed persons or entities for the purposes of providing legal services and such other services as may be prescribed to applicants or other parties to a proceeding before the Tribunal.

Same

(2) An agreement under subsection (1) may provide for the payment for the services by the Ministry.

The AEBC understands the Minister is considering exactly how legal support will be provided, and we must tell this Committee what transpired during hearings on what became the AODA. During those Committee hearings, the Government said that many of the items that were not clearly spelled out in the bill at that time were "issues of implementation," which would be dealt with in full detail at a later time. We have seen how inadequate these assurances have proven to be, and equality-seekers are not prepared to be hoodwinked again. We, therefore, insist the Minister spell out in clear detail what legal assistance will be available to complainants, and what safeguards will be put in place to prevent future governments from eroding whatever system is implemented.

The AEBC fully supports the position contained in the Special Issue of ARCH Alert, August 3, 2006:

"It is our opinion, and the opinion of most advocates, that in order for the system to work effectively for all those who are attempting to enforce their rights under the Code, free legal services must be available to all those who have made or may make an application to the Tribunal. The services provided must include advice, information, assistance and representation through each step of the application process. The services must be accessible to all persons with disabilities and must be available province-wide.

In our opinion, the Human Rights Legal Support Centre ("Centre") must include the following:

- No restrictions on eligibility for services, such as income level or trade union membership; - The provision of free quality legal services by trained human rights lawyers at every stage of the human rights process, e.g., initial consultation and legal opinion, drafting of application, mediation, and hearing; - The provision of free initial advice and information by trained human rights specialists to callers who are considering making an application to the Tribunal; - Physically accessible satellite offices and a system in place to ensure that services are available to Ontarians living in rural and northern areas; and - Guaranteed allocation of sufficient resources.

SHOULD LEGAL AID ONTARIO FUND COMPLAINANTS AT THE TRIBUNAL?

On July 12, 2006, George Biggar VP Policy, Planning and External Relations of Legal Aid Ontario (LAO), sent a letter to the Executive Directors of Ontario's community legal clinics seeking their views on whether LAO would be an appropriate vehicle for delivering the promised support for complainants before the Human Rights Tribunal, if Bill 107 is adopted in roughly its current form. Again, the community was not invited to provide any input or comment.

Is LAO the best vehicle to provide this support? There are serious questions which require answers!

. Legal Aid Ontario has been chronically under-funded; and its financial criteria are much narrower than what will be required if all complainants who go before the Tribunal are to receive the support which has been repeatedly promised.

Will LAO be given new resources to enable it to carry out any new function? Will these resources be reliable and ongoing?

Will there be different financial qualifications to gain support. If different criteria are put in place--which will undoubtedly be required--the public will be confused and this could lead to further attacks on Legal Aid Ontario's funding.

Most importantly, however, no person who is refused employment on the grounds of a disability should have to compete for Legal Aid Ontario's meagre funds with single parents seeking child support from delinquent ex-partners, or individuals who are charged with serious crimes, like robbery and murder, crimes that could lead to their incarceration for a significant period of time.

THE REVISED HUMAN RIGHTS TRIBUNAL

Under Bill 107, complainants would have to file cases directly with the revised Human Rights Tribunal of Ontario.

The Tribunal process is already complex and daunting for many individual complainants and legal representation is often required. If Bill 107 is enacted, it will be critical for the Tribunal to develop procedures that are fair and open, fully accessible, and not overly bureaucratic so the variety of complainants who will be forced to use it will not be intimidated and decide against filing their complaints.

TRIBUNAL MEMBERS:

Bill 107 provides that Tribunal members, and the Tribunal chair and vice-chairs, will be appointed by the Lieutenant Governor in Council.

The AEBC supports Arch's recommendation that section 32 of Bill 107 include the following provision, which mirrors the provision of the CHRA:

Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.

ACCESSIBILITY:

The term "accessibility" means many things to many different groups and persons in our society. It is often seen as simply providing accessible entrances and washrooms. But true "access" goes far beyond these important aspects of any accessibility plan.

For persons who are blind, deaf-blind or partially sighted, our "accessibility" issues more often pertain to accessing print materials and websites. We should be provided with communications electronically, in large print or in Braille. Similarly, we should have access to relevant documents in a format we can read and use.

ANNUAL REPORTS:

Under Bill 107, the Commission is required to make an annual report to the Minister regarding the work of the Commission during the year. The same reporting requirement exists under the current Code.

However, given the expanded role that is proposed for the Tribunal, the AEBC believes the Tribunal should also be required to file an annual report.

In order to ensure the independence of both the Commission and the Tribunal, their Annual Reports should be filed directly with the Ontario Legislature.

This should remove any conflict or perception of conflict, since Ontario Government Ministries can be respondents to human rights complaints, and the Minister who oversees the work of the Commission, is at times called upon to defend the government's position on a complaint.

CONCLUSION:

In summary, the AEBC believes both the process and the content of Bill 107 are fundamentally flawed. While we would prefer withdrawal of the Bill, if the Government intends to proceed with Bill 107 at this time, it requires detailed study and significant amendment.

While we have discussed some specific, technical amendments, we have focused our comments more on the nature and expected outcomes from any human rights legislation. We would also like to support the directions for amendment that have been submitted by such organizations as the AODA Alliance, ARCH, the African Canadian Association and many other equality-seeking organizations.

In order to improve the current level of human rights protection in Ontario, significant additional funding must be provided. To ameliorate the historic disadvantages that equality-seeking groups continue to confront, the Ontario Government must also implement a range of new measures that will help reduce poverty and unemployment among these groups--the underlying causes of disadvantage and discrimination in Ontario society.

The AEBC would be interested in participating actively in any future discussions on improving Ontario's system of human rights protection and adjudication.

John Rae
President

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