Bias problematic at human rights tribunal: Survey

But some say mediators, time frames have improved
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 08/15/2011

Despite being revamped in June 2008 — to deal with claims of discrimination instead of the Ontario Human Rights Commission — the Human Rights Tribunal of Ontario (HRTO) has more than a few naysayers, according to a survey of 235 HR professionals.

When it comes to the tribunal’s effectiveness, a perceived bias against employers (76.1 per cent) is cited as the biggest problem, followed by nuisance or frivolous claims (73.2 per cent), a lengthy process (53.1 per cent), the expense (41.3 per cent) and an unclear mandate (27.7 per cent), found the survey by the Human Resources Professionals Association (HRPA).

“The (tribunal) serves an important purpose but the reputation is it has a red carpet roll out for complainants and a built-in bias for the employer,” said one respondent.

People genuinely believe there are real complaints but these can get lost in the noise, said Bill Greenhalgh, CEO of the HRPA.

“The whole process gets bogged down with the frivolous complaints and the genuine ones just don’t get through as quickly as they should. They take forever, there’s a long queue,” he said. “The process was changed with the intent of getting rid of that huge impasse of cases and, in fact, it still continues.”

But the tribunal receives more than 3,000 new applications each year, compared to the 2,400 complaints received by the Ontario Human Rights Commission (OHRC) in a typical year, said Kathy Laird, executive director of the Human Rights Legal Support Centre (HRSLC), which supports and represents applicants. The commission had about 4,000 cases in its backlog when the legislation changed and about 2,000 old complaints were transferred to the tribunal. “Given that the tribunal has received 9,000 new applications and accepted transfer of 2,000 old complaints, it is actually pretty impressive that the tribunal’s current case inventory is just under 4,000 cases,” she said.

The tribunal has also shortened its mediations from fullday to half-day sessions, so the HRLSC’s cases are going to mediation earlier, said Laird. Previously, it took about 28 months for complaints to reach mediation and a hearing, and now it’s six to eight months, she said. “Based on the numbers, the new system is delivering mediation and adjudication services to the parties within markedly improved time frames.”

Some of the survey respondents’ perceptions could stem from the old system and many of the cases under the new system are employer-friendly, said James Heeney, a partner at Rubin Thomlinson in Toronto.

“That being said, it is very slow and it is extraordinarily costly and frivolous cases still continue to be in the system — there’s a significant number of them and a way to get rid of them at an early stage is something that everyone is desperate for,” he said. “The problem is, how would that be done?”

When asked to choose possible fixes, a mandatory prescreening process was the most popular (89.6 per cent) with respondents.

But the human rights commission previously did prescreening and, in some cases, there was a five- or six-year period from when a claim was first filed to when the case was actually heard, said Heeney.

And with the pre-screening, someone had to review the application and speak to all the parties involved and that was more time-consuming.

In the current system, an employer faced with a complaint can decline mediation and choose to go straight to an actual hearing, he said.

The second most-popular fix to the tribunal is to have specially trained judges, similar to those in family law courts, to move towards an evidencebased system (75.9 per cent), found the survey. Respondents also want new standards so the tribunal has rules similar to the courts (47.2 per cent).

These would be experts, experienced tribunal adjudicators, said Greenhalgh.

“There’s no gatekeeper at all that says to any individual, ‘This is what might happen and this is what it might end up costing you,’” he said. ;

But in the current system, the mediators are also vicechairs and, therefore, decisionmakers, said Heeney. These people have been selected based on their educational background and many are practising lawyers. And they can now say, “Here’s what I would do in this case.”

“(With) that change in the system, I actually find that the tribunal members and mediators are significantly better than what we had under the old system,” said Heeney.

HRTO adjudicators are chosen for their expertise and their experience, knowledge or training in human rights law and issues along with an aptitude for impartial adjudication, said Laird.

The HRTO is also required to decide cases based on the evidence at the hearing and according to the law, including including the Human Rights Code and the leading human rights jurisprudence, she said.

“There isn’t much reason to think that these decisions would have gone the other way in a court,” said Laird.“A court would hear the same evidence, with very few exceptions, and would apply the same statutory and case law.”

Respondents also said there should be a $10,000 cap on damages the HRTO can award for mental anguish (36.3 per cent).

However, the awards given out for human rights violations are quite modest under the new system and not as significant as people think, ranging from $5,000 to $15,000, said Heeney.

“The system may open up gateways as far as what could happen. But what is actually happening doesn’t appear to be significantly different.”

When it comes to expenses, 62.1 per cent said employers should not have to fund their defence when human rights complainants receive legal aid free. One-quarter (24.2 per cent) said the current approach to costs is OK while 13.7 per cent were unsure.

“I don’t think anybody is saying this should be free for employers, what they’re saying is there should be some balance, some disincentive or whatever,” said Greenhalgh. “Right now, there is absolutely no boundary, border, hurdle… there’s nothing to push back on a frivolous complaint.”

It’s not a big issue for employers to have to pay legitimate legal costs for legitimate legal complaints, he said.

“What they are concerned about is paying huge legal costs for complaints they see as frivolous.”

More than one-half of applicants represent themselves at tribunal hearings while less than 10 per cent of respondents are self-represented, said Laird.

And in decisions where no discrimination is found, about one-half of the successful respondents are not represented by a lawyer, she said.

“Respondents are retaining counsel at a much higher rate and this is one reason why respondents are finding the system expensive.”

But, oftentimes, cases settle at mediation not because there’s any merit to the claim but because the cost of legal fees is higher than what employers could settle for, said Heeney.

“There’s no doubt there’s significant problems and, to me, the greatest one by far is the fact that there’s no cost sanctions against someone who files a complaint that is not founded,” he said. “My recommendation would be to allow costs to be awarded, but a very nominal amount.

“It would provide some deterrent for very frivolous claims, even though it would be a very modest amount, so that it wouldn’t preclude people who are bringing forward complaints.”

In looking at the overall performance of the tribunal, almost one-third (32 per cent) of the respondents rated it as poor while 48.2 per cent said it is fair, 18.3 per cent said it is good and 1.5 per cent said it is excellent.

Overall, the results do not seem that negative, said Laird, as almost 68 per cent of survey respondents rated the performance favourably.

In addition, 41.2 per cent don’t feel the tribunal should be dismantled (though 30.5 per cent feel it should and 28.3 per cent are unsure), suggesting it’s the process that’s frustrating to employers.

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