Ontario's Direct Access Human Rights System A Qualified Success

  • April 01, 2014
  • Andrew Pinto

In August 2011, Andrew Pinto was appointed by the Attorney General of Ontario to conduct an independent review of the legislative changes to Ontario’s human rights system that were introduced in 2008.

Ontario’s human rights system underwent major changes in June 2008 as a result of the Human Rights Code Amendment Act, 2006. Most significantly, human rights applications (formerly called complaints) would be filed directly with the Human Rights Tribunal of Ontario, rather than with the Ontario Human Rights Commission. The Commission would no longer receive, process, mediate and investigate individual complaints and, where the Commission considered it appropriate, forward them to the Tribunal. Instead, the Commission’s role was revised to focus on developing policies, providing information and education and promoting compliance with the Code. However, the Commission retained its authority to initiate and intervene in applications before the Tribunal. Finally, a new agency, the Human Rights Legal Support Centre, was formed to provide advice and representation to individuals who may bring applications before the Tribunal.

The revised Human Rights Code provided that after three years under the new system, a person would be appointed to review the implementation and effectiveness of the changes to Ontario’s human rights system, and I had the privilege of being assigned that task. I was to review the activities of the Tribunal, Commission and Centre, coined the three human rights “pillars”, to determine whether they were fulfilling their mandates. Finally, I was to make recommendations aimed at enhancing the effectiveness of Ontario’s human rights system. I conducted public meetings in six cities across the province, received over 60 written submissions and held 25 stakeholder consultations with diverse individuals and groups. My Report of the Ontario Human Rights Review, released to the Attorney General in November 2012, is available at www.ontariohumanrightsreview.org.

Overall, I concluded that the Ontario human rights system is working better in many respects than under the previous Code. However, the reforms have been a qualified success since there remain a number of challenges in the revised system.

The OBA played an important role in the review by providing written submissions as a key stakeholder. The OBA’s submissions were formulated by several practice sections, including Labour and Employment, Constitutional, Civil Liberties and Human Rights, Feminist Legal Analysis, Administrative Law, Public Sector Lawyers as well as the Young Lawyers Division and the Equality and Accessibility Committee.

Whereas around 65% of applicants are self-represented at the Tribunal, 85% of respondents are represented by counsel.

The OBA’s submission concluded that the 2008 changes had enhanced public confidence in the human rights system, as parties were having their applications dealt with more efficiently and in a transparent manner. The OBA suggested, however, that the new system still had a ways to go in order to make the system efficient and accessible to unrepresented parties. Specific suggestions in this regard included increased funding and resources for the Centre; increasing the Commission’s role in intervening and inquiring into individual applications; and increasing opportunities for representation for low-income, unrepresented, and equity seeking groups through the legal clinic system. The OBA also recommended giving the Tribunal the power to impose costs to deter inappropriate conduct and increasing the compensatory awards ordered by the Tribunal. Finally, the OBA recommended clarifying the role of Tribunal adjudicators in conducting Tribunal hearings.

My final report contained 34 recommendations, directed at the Tribunal, the Commission, the Centre, and at system-wide concerns. The report identified best practices, addressing a number of outstanding areas of concerns, and directed at improving the efficiency and accessibility of the system. I have highlighted a few of these recommendations below.

The relatively low general damage awards at the Tribunal in comparison to civil courts risk the human right system losing credibility.

During the consultation process, I consistently heard that the Tribunal forms were too complex and posed a barrier to self-represented applicants and individuals with disabilities, among others. I recommended that the Tribunal simplify its forms to increase accessibility. I also recommended that the Tribunal dedicate more resources to conducting mediations earlier in the application process, to promote the early resolution of disputes, which was a recommendation also made by the OBA.

I also recommended that the Centre’s funding be increased so that it could expand its work of assisting applicants. The Centre only represents 12% of applicants before the Tribunal. Whereas around 65% of applicants are self-represented at the Tribunal, 85% of respondents are represented by counsel. The Centre needs more funding to reduce this gap. I recommended that the Commission take a more active role in intervening in individual cases in the public interest and that it provide summary information to respondents to promote human rights compliance. On the controversial issues of costs, I outlined the various competing policy considerations but felt that there was a lack of empirical evidence to decide the issue. Accordingly, I recommended that the Ministry of the Attorney General undertake a study of the merits of a costs regime for the Tribunal and report back to the public in 18 months. I also recommended that the Tribunal reconsider its current approach to general damages and increase the monetary range of these awards in cases where discrimination is proven. The relatively low general damage awards at the Tribunal in comparison to civil courts risk the human right system losing credibility.

In my report, I suggested that the human rights systems may appear to be for the few but, in fact, it is for the many. Over the last four years, much of the difficult set-up work was done to operationalize the system envisaged by the revised Code. Each Ontarian spends $1.57 per year on the human rights system. In difficult economic times, many individuals and groups who are likely to face discrimination are the very ones who are likely to be negatively affected by a fragile economy. It would be a cruel irony if the very compliance mechanisms that they rely upon for fair employment, housing and services, are not functioning when they need them most.

I met with Attorney General John Gerretson last year, and briefed him on my findings and recommendations. Minister Gerretson, now reappointed to Cabinet as AG, was keen to hear my views. The various human rights agencies are studying my report and I have every confidence that the Attorney General and the agencies will provide a response, at least on a preliminary basis, in the near term. However, the public’s interest, media attention and advocacy are important factors in influencing government action. Accordingly, as an important and influential stakeholder, the OBA needs to remain strongly committed and involved in keeping the report, its recommendations and the human rights system a priority for government.

Andrew PintoAbout the Author

Andrew Pinto is a partner of Pinto Wray James LLP, where he practises human rights, labour and employment law.

View Andrew Pinto’s full report of the Human Rights Review.

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