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Improving Human Rights Protection in Ontario

Date: 
Tuesday, February 28, 2012

A Brief Submitted To Andrew Pinto, Chair, Ontario Human Rights Review

Submitted By:

Toronto Chapter, Alliance for Equality of Blind Canadians
602 - 1360 York Mils Road
Toronto, ON M3A 2A20
Tel: 416-391-1169

February, 2012

INTRODUCTION

The Ontario Human Rights Code prohibits discrimination against a person because of his or her disability, sex, race, sexual orientation and various other grounds. It bans discrimination in access to employment and the enjoyment of goods, services and facilities. It requires employers, stores and others offering goods, services and facilities to accommodate the needs of groups protected by the Human Rights Code like persons with disabilities, short of undue hardship. It requires organizations in the public and private sectors to remove existing barriers to groups that are protected by the Code, such as persons with disabilities, and to prevent the creation of new ones. It has primacy over all other laws and regulations unless expressly exempted.

Ontario's Human Rights Code didn't originally cover discrimination against persons with a disability. Strange as it might sound, people with disabilities had to fight long and hard to win these rights, back in the late 1970s and early 80s. I know this, because I was there!

Similarly, persons with disabilities were not included in Canada's Charter of Rights and Freedoms until the eleventh hour, and were only included after plans were well underway to send busloads of persons with various disabilities to demonstrate on Parliament Hill. This move ultimately proved unnecessary when then Justice Minister Jean Cretien rose in the Committee and accepted an amendment to add persons with disabilities to the list of groups to be covered. Again, I know this history, because I was involved.

Canada's disability rights Movement fought long and hard to achieve an equitable legal framework, and now we are covered under Canada's Charter of Rights and Freedoms, as well as all Provincial and Territorial Human Rights Codes.

Canada's disability community had a number of reasons why we expended so much time and energy to achieve this kind of coverage. We had dreams, hopes and more than that, we had expectations that human rights coverage would make significant and tangible improvements in our lives, and that being equal under the law would bring about what had been the elusive goal of {full participation and Equality" that was enunciated during the International Year of Disabled Persons 1981.

History, however, teaches us some tough realities. We have come far further when it comes to equitable legal protection than we have in translating that legal equality into the substantive equality in our daily lives that we were seeking and still must seek. We believe the human rights system in Canada must bear some of the blame for our current situation, and that's why your Review is of such importance to members of the AEBC and the broader disability community.

Many if not most people who make an application to the Tribunal need assistance and support. Often they are intimidated by the legal system, feel hurt, angry, confused and afraid. Without assistance, they cannot effectively enforce their rights. Opening up access to a hearing may be a hollow achievement if support and advocacy are not provided.

Today, the process has become overly legalistic, where decisions can hinge on technical legal arguments rather than the facts in dispute in the case.

It is also our view that governments all across Canada have failed to take the promotion and enforcement of human rights sufficiently seriously. Funding to promote an understanding of the need to eradicate discrimination has never been sufficient, and Tribunals have failed to issue decisions containing significant fines and broad systemic orders. Thus, it is far too easy for organizations to see the human rights system as merely another "cost of doing business."

During discussions on the AODA and the development of Accessibility Standards being made under this Act, frequently, representatives from obligated sectors speak of all the so called "new obligations" they must now undertake, yet the Ontario Human Rights Code, which has had Primacy since the early 1980s has covered persons with disabilities since way back then, and much of what is required by the AODA Accessibility Standards have been required by the Code for these many years. Clearly, the Ontario Human Rights Commission's efforts have not succeeded in gaining the level of understanding and compliance with this important law that is desperately needed in 2012, and increased education work could help in promoting understanding and maybe even in reducing the need for some complaints.

WHO IS THE AEBC?

The Alliance for Equality of Blind Canadians (AEBC), is a national organization of Canadians who are blind, deaf-blind, and partially-sighted. Founded in 1992, the AEBC's work focuses on promoting improved public attitudes, and to providing input on public policy issues and legislation of importance to members of our community.

The AEBC has previously indicated its support for the work of the AODA Alliance, and thus, we do not plan to reiterate the AODA Alliance's detailed list of recommendations, but rather, we will focus on a number of areas of greatest importance to our community.

FILING COMPLAINTS

The process for filing complaints must be easy and straightforward. The HRTO has put the necessary forms on its website, and despite the fact that Michael Gottheil, himself blind, headed the development of procedures for the Tribunal, we who are blind have not been able to access these forms directly if we use a screen reader, but rather, we have had to ask the Tribunal to send us usable versions. Mr. Gottheil has told me in recent correspondence that he will look into this problem and have it fixed, and I expect he will do so.

THE MEDIATION PROCESS

All complainants are highly encouraged, if not pressured, into agreeing to participate in a mediation, and  there is no doubt in our mind that complainants are expected to do their best to affect a settlement. There are definitely times when settling one's complaint is the right thing to do. A settlement assures the complainant of obtaining something, whereas proceeding to a hearing, the outcome is totally uncertain.

Settlements do, however, come at a cost! No law is written or interpreted, and the public does not know which organizations are involved in human rights litigation, even if they are habitual respondents at the HRTO, because there is usually a "gag" clause in a settlement. This arrangement does, of course, encourage respondents to enter into settlements.

LEVELLING THE POWER IMBALANCE

One of the original reasons for establishing human rights commissions was to attempt to redress the power and resource imbalance between individual complainantss and respondents. During the mediation stage, and at a hearing, the respondent is usually represented by one or even several lawyers, while currently the Tribunal estimates that only some 40% of complainants who filed new human rights applications under Bill 107 since June 30, 2008, have had legal representation when dealing with the Tribunal.

The Ontario Government promised that every human rights applicant would have a publicly-funded lawyer to represent them throughout the proceedings at the Human Rights Tribunal, but today, some complainants receive no representation at all, others receive representation during a portion of the process and are then set free to fend for themselves, and some do receive the promised full support.

The Human Rights Code should be amended to:

  1. set out an explicit entitlement of all applicants to a free publicly-funded lawyer throughout the Tribunal process;
  2. require the Government to take all necessary steps to ensure that it keeps its promise of free publicly-funded counsel for all applicants at the Tribunal throughout the Tribunal process;
  3. ensure the Human Rights Legal Support Centre has adequate funds in its budget to cover the cost of providing legal representation throughout the entire process, including paying for expert witnesses that its clients need;
  4. require the Human Rights Tribunal to keep and annually make public accurate, current and comprehensive data on:
    1. the percentages of cases and at what stages of cases applicants are unrepresented;
    2. in what percentage of cases and at what stages of cases are respondents unrepresented; and
    3. the rates at which applicants or respondents succeed in applications or in mediations or  procedural motions relative to their being represented or unrepresented.

THE OHRC AND SYSTEMIC CASES

One of the major arguments advanced in support of Bill 107 was that its enactment would enable the Ontario Human Rights Commission to focus more on bringing more significant systemic cases forward that would bring about broader change for a larger number of Ontarians. However, the Commission has not made effective use of its power to bring its own human rights applications to the Human Rights Tribunal, to combat problems of systemic discrimination as was intended when Bill 107 was being considered.

Additional measures are needed to better ensure that in human rights cases, the public interest is represented by a public human rights agency that is mandated to represent the public, and not merely to represent the private interests of individual applicants, to help ensure that public interest remedies are included in Human Rights Tribunal rulings and negotiated settlement agreements.

THE OHRC AND POLICY WORK

The Ontario Human Rights Commission has conducted some very useful research into some important human rights topics, issued research reports and adopted policies. However, it needs to do a better job in following through on these reports.

For example, the OHRC has issued at least  two reports in the area of restaurant access, conducted audits of several establishments, and developed agreements with a number of chains. However, today, we in the blind community do not see any real increase in the availability of accessible menus, and some outlets that once offered them have not updated them as major changes in their menus have been introduced. Greater follow up is required by the OHRC, including filing more complaints before the Tribunal.

SECRETARIATS

The amended Human Rights Code required the establishment within the Human Rights Commission of both a Disability Rights Secretariat and an Anti-Racism Secretariat, yet six years after Bill 107 was passed, the Ontario Government has still not established within the Ontario Human Rights Commission either of the promised Secretariats. Why have these provisions of Bill 107 not been implemented?

REDRESSING A GRIEVOUS WRONG

On Feb. 14, 2012, Jeff Gray’s Globe and Mail article, "Ruling in lawyer's claim of 'racial profiling' overturned" reported that Selwyn Pieters and Brian Noble, were awarded $2,000 each in  a 2010 tribunal decision that said they faced discrimination, but in a Divisional Court ruling issued Feb. 13, a three-judge panel led by  Madam Justice Sandra Chapnik overturned the Human Rights Tribunal's ruling  and ordered Mr. Pieters and Mr. Noble to pay $20,000 in court costs.

If this decision is not over turned, it will only further discourage victims of discrimination from even considering to file a complaint, and will add additional pressure on complainants to enter into settlements with respondents, even when they are unhappy with the settlement being offered.

This Review has no mandate to consider empowering the Human Rights Tribunal to order a losing party at the Tribunal to pay the winning party's legal costs, and it must ask the Ontario Government to prevent a court from ordering costs against any applicant. Costs must never be awarded against complainants at any stage, the HRTO, the OHRC or any appellant court.

REGULAR REVIEWS OF BILL 107

There should be periodic Independent Reviews of Ontario's system for enforcing human rights in Ontario. These reviews must be better publicized and must consider all three pillars of Ontario's human rights process – the Commission, the Support Centre and the Tribunal.

CONCLUSION

The Preamble to the Ontario Human Rights Code states:

"Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;"

Enforcement and promotion of human rights throughout Ontario is of upmost importance to all Ontarians, and is especially the case for Ontarians with disabilities, who remain among the poorest of the poor and most marginalized in this affluent Province, and who must continue to seek the "equal benefit of the law" that was part of the promise of Canada's Charter of Rights and Freedoms.

To make this a greater reality, all three pillars of Ontario's human rights system must do more to help equalize life in Ontario, to promote a greater understanding of the benefits of removing discrimination, and to affecting major system change, where all Ontarians will take the human rights system more seriously.

We hope and expect your Review will help to make a substantive difference in our lives, and assure you that the Board and members of the AEBC living in Ontario are ready to do our part to help implement your progressive recommendations.

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