During the provincial leadership race for the Progressive Conservative Party, two of its candidates, including winning candidate Tim Hudak, proposed that if their party should ever get to power in Ontario, they will scrap the Human Rights Tribunal of Ontario. While much of their politicizing about the work of the Tribunal is based on the experiences of a few individuals with the Canadian Human Rights Commission, much of this campaign is based on misinformation and a poor understanding of how our human rights system works.
The Human Rights Tribunal of Ontario is an Evolving Body
As with any specialized agency, board or commission set up to deal with and address specific issues, the Human Rights Tribunal is designed to receive, mediate and hear complaints about alleged discrimination and harassment of persons characterized by certain attributes, such as a race, religion, disability and gender, by other persons or organizations in the areas of employment, services, trade associations, housing, among other social areas identified under the Human Rights Code. Contrary to what some believe, there is nothing governing the conduct of freedom of speech or expression under the provincial Code. As telecommunications, websites and publishing are federal responsibilities, any jurisdiction over this area is given to the Canadian Human Rights Commission.
The new provincial Tribunal was set up and empowered by Bill 107 to provide "direct access" to complainants for the first time in Ontario. This law came fully into force on June 30, 2008. In the past, complaints were sent to the Ontario Human Rights Commission, which screened, analyzed, investigated and where necessary, prosecuted them on behalf of a complainant. This former system was criticized by its users as being too slow, cumbersome and arbitrary in the way it dispensed with many complaints. As the Commission served an important Mediation function, it was able to resolve many complaints without a hearing. However, less than 5% of all complaints were referred to be heard by the old Human Rights Tribunal. The new system allows all complainants to file their complaints directly to the Tribunal and eventually get heard.
Emerging Issues and the New Human Rights Tribunal
Under the new Tribunal, several issues are emerging. As the new law came into force, many complaints were still being sent to the Commission and others were making their way through the Commission's own complex set of rules for assessing, screening and investigation. It was said that when the Commission was no longer empowered to directly accept complaints, the number of actual complaints that have been filed or were in process at that level numbered in the thousands. As the Commission was not able to screen or handle all of these complaints, many of these files were not screened or reviewed for jurisdiction and merit.
To be fair to all complainants that had a file with the Commission, the new system was set up to allow "transitional" complaints to be withdrawn from the Commission and be re-filed with the Tribunal for the Tribunal to use an expedited process to deal with each one of them. This required a substantial amount of resources, including the appointment and training of many new adjudicators and other staff at the Tribunal to go through what was potentially thousands of "transitional" complaints, many of which might have been thrown out or dismissed under the old system.
The Tribunal Has Developed a New Set of Rules
In response to the influx of "old" complaints and issues arising from people being able to file their own complaints directly to the Tribunal, a new set of rules needed to be made. As with every Tribunal of this type in Ontario, the Tribunal has significant discretion as to what rules apply. Once these rules get put into place, things become more complex for both complainants and respondents, often necessitating the assistance of human rights lawyers or licensed paralegals. The rules are established to make the process fair to both parties and to ensure that decisions that are made are based on evidence.
Critics of the new system allege that the new Legal Support Centre, which is set up to represent a number of complainants before the Tribunal as well as provide assistance to others, is not resourced enough to take on every complaint and many are left without legal representation or are forced to hire private practitioners. Second, the investigation function was taken away from the Commission and placed with the complainant, and as such, operates more like a court. This can be difficult for some complainants, especially since most complainants do not come to the Tribunal with a lot of resources. Third, respondents are not able to secure assistance through the Legal Support Centre or access free advice elsewhere. As such, they are often forced to hire legal counsel at their own expense.
However, with all its faults and growing pains the Tribunal is going through, is it wise to toss it or find ways to reform the process to make this process easier? I side with the idea of reform, as over time, the Tribunal will be maturing to a stage where many of these issues will be addressed either within its body or through the higher courts. However, it needs to be there, as the process while initially difficult, is substantially less expensive and complex than dealing with the same issues in a courtroom. Access to justice is a key principle for those that would likely use the Tribunal.
Angela Browne - Angela Browne is an independent Paralegal practising in the Niagara Region, of the Province of Ontario (Canada). She is a published ...
