Ontario has joined British Columbia as the only two jurisdictions in Canada that let victims of human rights violations go directly to a tribunal.
Andrew Pinto, co-chair of the Bill 107 task force at the Ontario Bar Association, applauded the bill for finally implementing a model recommended by previous task forces and commissions, including the Human Rights Code Review Task Force chaired by Mary Cornish in 1992 and the panel reviewing the federal legislation in 2000 headed by former Supreme Court judge Gérard La Forest.
Prior to Bill 107, people with human rights grievances had to bring complaints to the Ontario Human Rights Commission. Commission staff interviewed the parties and conducted a fact-finding process, then decided whether to bring the matter before the Human Rights Tribunal of Ontario.
With 2,500 cases filed each year, the process could take four to five years, according to government statements.
The timeline the government is aiming for is one year, said Pinto.
Under the new bill, the commission would not be involved in individual complaints, except when it files its own complaint or intervenes in complaints “where there are systemic issues affecting the public interest,” said Pinto.
In the previous system, added Pinto, commission staff seldom had the resources to devote to research, education and prevention or to undertake systemic discrimination complaints involving multiple files.
“The hope is with the responsibility for individual complaints being passed on to complainants themselves, this will free up resources for the commission to focus on broader systemic work that’s required to improve diversity,” said Pinto
In 2003, British Columbia eliminated its human rights commission entirely, leaving the tribunal to hear cases brought directly by complainants.
In a report released last March on the impact of the changes, a group of University of Victoria law students found the direct access model has been detrimental to complainants. According to the report,
Route 64 — Another Detour on the Road to Equality: An Examination of the Current Human Rights System in British Columbia
, the change has placed an increased burden on complainants to establish the merits of their case at an early stage.
Jonathan Chapnick, one of the report’s contributors, said that by removing the “gate-keeping” function played by the former commission, Bill 64 has only shifted that role to tribunal staff. He cited tribunal statistics that more than 90 per cent of tribunal decisions have been decisions involving procedural matters, such as whether a complaint was filed within the six-month limit or whether it’s outside the jurisdiction of the tribunal.
“The only problem is we have highly paid, highly qualified people on our tribunal and it may not be the most efficient use of their time and our resources to be deciding which cases go through and which don’t,” said Chapnick. “Their work should be focused on the merits of the cases rather than quite routine matters.”
What this change means for parties accused of human rights violations is they now have to prepare their defence more promptly, said Pinto. In the previous system, an employer responding to a complaint (eight out of 10 complaints received last year were employment-related) had to file an initial response, but it also had many months, and often years, to wait before an investigation actually began.
Now, “very soon after a response or even as part of the response, the respondent will also have to file a description of the type of evidence and witnesses that it will be using to prove its case before the tribunal,” he said.
Also, the time limit to file a complaint has been moved up from six months to one year, so employers should keep records longer if they believe there’s a possibility that someone may file a complaint.
Another important change is the fact the tribunal has much greater flexibility to order certain things be done, such as investigations.
“Whereas previously, the tribunal relied to some extent on the investigation that was done by the commission, the tribunal now has new powers to cause an investigation and to take a more active role in a hearing,” said Pinto.
© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.