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About the Commission
The Ontario Human Rights Commission (the”Commission”) is an arm’s length agency of the government, accountable to the Legislature of Ontario through the Attorney General. The Commission’s principal functions are set out in the Ontario Human Rights Code (the “Code”) and include the promotion and advancement of human rights and the investigation, mediation, settlement and litigation of complaints.
Caseload Management
Under the Code, the Commission is required to receive all complaints that fall within its jurisdiction. The Code obligates the Commission to endeavour to effect a settlement of a complaint. The Commission’s Mediation and Investigation Branch assists the parties to reach mutually agreeable resolutions in approximately 57% of complaints through mediation and conciliation. Complaints that cannot be resolved through mediation are referred to investigation.
At any stage in the process parties may reach a settlement and the complaint will then be considered completed and closed. Cases are also closed where the complainant has withdrawn or abandoned the complaint. The Commissioners might also decide to not deal with a complaint because: the circumstances occurred outside the Code’s six month filing requirement; there is another more appropriate forum that might first address the complaint; the subject matter of the complaint is not within the Commission’s jurisdiction, or, there is evidence that the complaint was frivolous, vexatious or made in bad faith. Cases are also considered completed and closed once the Commissioners make a decision as to whether or not there is sufficient evidence, and the procedure is appropriate, to warrant referral to the Human Rights Tribunal of Ontario for a hearing.
Caseload
In the fiscal year 2004-2005, 2,399 new complaints were filed at the Commission. While this amounts to a decrease of 51 cases (or 2%) over complaints filed in the 2003-2004 fiscal period, it is still 16.5% higher than the 2,060 new complaints per year average filed over the five-year period from 1999-2004.
The Commission closed 2,215 cases in 2004-2005 compared to the 2,038 complaints closed in 2003-2004, which represents an increase of 8.7%. On average, the Commission closed 2,034 complaints per year over the five-year period from 1999-2004.
On March 31, 2005, the Commission’s active caseload was 2,733 cases. This represents an increase of 184 cases (or 7.2%) over last year’s active caseload of 2,549. As well, the average age of the Commission’s active caseload increased from 10.8 months to 11.2 months. In the five-year period from 1999-2004, the Commission’s caseload averaged 2,144 active cases per year, while the average age of active cases for this period was 11.3 months.
In 2004-2005, the Commission also referred 150 cases to the Human Rights Tribunal of Ontario. By comparison, in 2003-2004, it made 288 referrals (of which 200 cases dealing with autism were being heard together).
Inquiry and Intake
In 2004-2005, the Commission’s Inquiry and Intake Office received 1,648 written inquiries, attended to 886 visitors and responded to 46,429 (or 76%) of the 60,698 telephone calls it received.[32] Staff sent out 4,329 complaint packages, and received back 2,544 completed complaint packages in return. The Inquiry and Intake Office opened 2,399 formal complaints, and closed 49 of the total 2,215 formal complaints closed.
In October 2004, the Commission implemented a new process for self-drafted human rights complaints. In the new "self-draft" process, individuals who wish to file a complaint will receive a Human Rights Complaint Form from the Commission along with a sample complaint and Guidelines. Individuals are asked to complete the form and send it back to the Commission.
Commission staff continue to provide direct assistance to clients, and in some cases, draft complaints for individuals who are unable to draft complaints because of a language barrier, a disability, or other legitimate reasons. The Commission has established a dedicated telephone help line to assist individuals drafting their own complaints. The new help line provided assistance to more than 457 callers. Commission staff review the draft complaint for quality standards and will advise the complainant or representative of any insufficiencies or additional information needed.
In the months following the implementation of the new process, the average number of complaints filed remained the same, while complaint forms are being returned faster with the average time to file a complaint reduced to below 30 days from 90-120 days . As well, only three percent of self-drafted complaints were returned to clients for re-drafting. And in a subsequent survey to clients, 95 percent of responses were positive about the new process.
Mediation
During 2004-2005, the Mediation Office closed 1,300 of the total 2,215 cases closed that fiscal year. Of those who opted for attempting mediation, the mediation settlement rate was 73% (70% was the target).
Investigation
The total number of cases closed through Investigation (including the Investigation Office and through special projects) was 866 of the total 2,215 cases closed
Policy Development
In keeping with its mandate to promote understanding of human rights and to conduct research to eliminate discriminatory practices, the Commission undertook a number of policy development initiatives in 2004-2005. Commission policies and guidelines are approved public statements that set out the Commission’s interpretation of the Code at the time of their publication. Developing policy statements is a key function of the Commission’s mandate to eliminate discrimination and advance human rights protections.
Racial Discrimination and Racism Policy Dialogue
In October 2004, the Commission convened a Policy Dialogue on Racial Discrimination and Racism in partnership with the Association of Canadian Studies. The three-day Dialogue gave experts and key stakeholders a unique opportunity to consult and share ideas with Commission staff on social, legal and policy trends and developments in the field of racism and racial discrimination. Papers were developed and presented on a number of significant issues that need to be considered by the Commission in developing its policy statement on racism and racial discrimination, which it plans to release in the first part of the 2005-2006 fiscal year.
In addition to the Policy Dialogue, the Commission has undertaken public consultation geared to the development of the policy. Numerous focus groups have been held with stakeholders representing a diversity of interests and perspectives. In December 2004, papers generated by speakers at the Policy Dialogue were published in a dedicated issue of Canadian Diversity. The edition was a collaboration between the Association for Canadian Studies and the Commission, and featured a number of the key articles that were written for the Policy Dialogue event. The articles, which are the independent views and perspectives of the authors, represent a significant contribution to the public discussion of the role that human rights principles and legislation can and should play in the ongoing struggle to overcome racism and racial discrimination.
The public was invited to comment on the issues and ideas presented by the authors of the papers. In addition, respondent-oriented stakeholders were asked for input on specific issues that would be addressed in the policy.
Canadian Diversity is distributed on a regular basis to 400 individual and institutional members of ACS both nationally and internationally. In addition, the Commission sent copies of this publication to over 700 of its stakeholders. The articles are also available on the Commission’s Web site. It is partnerships such as this one that enhance the Commission’s efforts in promoting and advancing human rights.
Racial Profiling Report – One-Year Follow-up
One year after the release of its report, Paying the Price: The Human Cost of Racial Profiling, and on the eve of International Human Rights Day, the Commission renewed its call for efforts to address the phenomenon of racial profiling. In an opinion editorial published in the Toronto Star, Chief Commissioner Keith Norton noted that while some positive steps have been undertaken, many individuals in leadership positions still have not acted to address racial profiling. In particular, the opinion editorial noted that little response or action has been seen with regard to priority areas identified in the report, including establishing a racial diversity secretariat, addressing the application of Ontario’s Safe Schools Act and increasing the regulation and accountability of private security services.
The Commission also launched a province-wide ad campaign in mainstream and community media on racial profiling to increase public awareness of the need to eliminate racial profiling. The Commission will continue to act assertively to address this issue.
Disability and Education
Following through on its commitment to help educational institutions, teachers, and parents better understand the duty to accommodate students with disabilities in Ontario’s schools, colleges and universities, the Ontario Human Rights Commission released Guidelines on Accessible Education to the public on November 30, 2004.
The Guidelines set out the Commission’s interpretation of how Ontario’s Human Rights Code applies to the provision of educational services for students with disabilities. They outline steps in the accommodation process and clarify a number of issues including: principles of accommodation, creating a welcoming environment, guidance on determining the most appropriate accommodation for students with disabilities, benefits of accommodation planning, and roles and responsibilities of parties to the accommodation process.
Also in November 2004, the Chief Commissioner wrote to the Minister of Education and the Minister of Training, Colleges and Universities to inquire into the progress being made on the recommendations made by the Commission in its 2003 consultation report, The Opportunity to Succeed: Achieving Barrier-free Education for Students with Disabilities.
Restaurant Accessibility Initiative
In April 2004, the Commission published Dining Out Accessibly. The report outlined the results of an independent accessibility audit of seven major restaurant chains, and the significant commitments made by those chains to remove barriers to customers with disabilities.
During the summer and fall of 2004, the Commission contacted an additional 19 restaurant chains, seeking similar commitments. The Commission has received commitments from 17 of these restaurant chains. Including the original seven chains, a total of 24 chains have now committed to:
- Develop an accessibility policy and customer complaints procedure;
- Review and identify accessibility barriers across corporate-owned and franchised premises;
- Develop a standardized accessibility plan for future locations;
- Develop a plan for existing facilities and begin removing barriers; and,
- Monitor progress toward achieving accessibility and report back to the Commission in one year’s time.
The Commission has now commenced a review of the progress of those restaurant chains with which it reached agreements in early 2004. The Commission has also launched an investigation, through a Commission initiated complaint against one restaurant chain, Select Sandwich, which did not respond to the Commission’s request for cooperation.
Family Status Discussion Paper
In 2004-2005, the Commission prepared a discussion paper on discrimination because of family status as part of the Commission’s mandate to develop policy on each of the grounds in the Code. The paper explores human rights issues facing individuals because of their family status in the areas of employment, housing, services and facilities. The paper reviews case law, international human rights standards, demographic trends, the Commission caseload, and social and economic issues related to family status. As well, it sets out specific issues on which the Commission is seeking public input. The paper will form the basis for public consultations leading to the development of a formal Commission policy on discrimination because of family status.
Advice on Human Rights Matters
Discriminatory Effect of School Discipline Legislation and Policies
In April 2004, the Commission made a submission to the Toronto District School Board’s Safe and Compassionate Schools Task Force raising concerns that the application of school disciplinary legislation, regulations and policies may be having a discriminatory effect on students from racialized communities and students with disabilities. The submission set out a number of recommendations for the Ministry of Education and school boards across the province. Key among these was the recommendation to collect data on suspensions and expulsions in order to monitor and safeguard against discriminatory application of safe school legislation.
A few months later in July, the Commission released a comprehensive research report prepared for the Commission entitled, The Ontario Safe Schools Act: School Discipline And Discrimination, which reviewed empirical evidence in other jurisdictions and recounted the experiences of students, educators and front-line community workers in Ontario. In a public statement in December 2004, Chief Commissioner Keith Norton expressed his disappointment that little has been done so far to acknowledge or remedy this situation.
Complaints against various school boards continue to be filed with the Commission. During the fiscal year, the Commission referred two complaints to the Tribunal dealing with allegations of racial harassment, bullying, streaming, and discrimination arising from the application of discipline in a school.
Police Complaints Review Submission
During the Commission’s Racial Profiling Inquiry, one of the recurrent themes was a lack of faith in the current police complaints process. Participants claimed that they were prevented or discouraged from filing complaints. They described a lack of confidence in the current police complaints process and a perception that it lacks independence, often described as “police investigating the police”. Those who had filed complaints found the result unsatisfactory, further compounding their sense of mistrust and injustice.
Consequently, one of the recommendations in the Commission’s Inquiry Report Paying the Price: The Human Cost of Racial Profiling was to change the current police complaints mechanism to one that would be independent, accessible and effective.
In September 2004, the Commission wrote to the Hon. Patrick J. LeSage, Q.C., who was leading the Review of the System for Complaints by the Public Regarding the Police established by the Government of Ontario in June 2004. The Commission addressed key issues from a human rights perspective that should be considered in any review of the police complaint mechanism; in particular, what recourse should be available for complaints that allege discrimination or harassment.
In keeping with the Commission’s commitment to public accountability and its duties in serving the people of Ontario, the submission was made public on the Commission’s Web site.
Mandatory Retirement
Under the Ontario Human Rights Code, in the area of employment, the legal definition of "age" is limited to people between the ages of 18 and 65. This means that the Commission cannot receive a complaint of age discrimination in employment from someone who is 65 or older. During the Commission’s consultations on age discrimination in 2000, many participants singled out mandatory retirement as a key area of concern because of the profound implications that it can have on their sense of worth, their dignity and their economic security. The Commission has since recommended publicly on a number of occasions that the Code be amended to remove the upper limit of age 65.
In September 2004, the Commission made submissions to the Ministry of Labour’s public consultations on mandatory retirement. The submission outlined human rights concerns that mandatory retirement:
- is a form of age discrimination because it involves making an employment decision solely on the basis of age, and not the person’s ability to do the job
- undermines older Ontarians’ independence, participation, and ability to make choices, which is contrary to the values of the Code; and,
- can have serious financial impacts on certain groups, such as women, recent immigrants, racialized communities and persons with disabilities.
At the time of writing, the Commission is still waiting for the introduction of an Act to end the practice of mandatory retirement.
Regulation of the Private Security Industry
Racial profiling in the security industry was one of the significant issues that surfaced during the Commission’s racial profiling inquiry as well as through human rights complaints filed with the Commission. As such, Chief Commissioner Keith Norton publicly called for immediate steps to improve the accountability of the private security industry and its compliance with human rights obligations.
In January 2005, Chief Commissioner Keith Norton wrote to the Minister of Community Safety and Correctional Services to commend the Minister on the introduction of Bill 159, the Private Security and Investigative Services Act, 2004 and to offer the Commission’s input on how the Bill could be strengthened to better ensure compliance with the Ontario Human Rights Code. The Chief Commissioner had further opportunity to provide input into the proposed regulation of the private security industry in a meeting with the Minister in February 2005.
The Commission also reached a very positive systemic settlement in a case referred to the Human Rights Tribunal involving a complainant who alleged he was racially profiled by a security guard and ordered off the premises while he was waiting for a bus. In resolving the complaint, the private security company agreed to develop an anti-harassment and anti-discrimination policy, and train security guards on their responsibilities under the Code in dealing with members of the public, including a discussion of the phenomenon of racial profiling. For its part, the transit facility operator agreed to require all security companies who bid for contracts to agree they will comply with all human rights legislation in the performance of the contract, provide human rights sensitivity training to their security officers, display the Commission’s Code Cards in plain view of staff and customers, and provide business cards to security officers to give to customers when concerns are raised.
Accessibility for Ontarians with Disabilities Act
In February 2005, the Chief Commissioner wrote to the Legislative Assembly’s Standing Committee on Social Policy regarding Bill 118, the proposed Accessibility for Ontarians with Disabilities Act. The Chief Commissioner expressed support for several provisions of Bill 118, such as the inclusion of the private sector and the emphasis on the development and implementation of clear, measurable and reviewable standards for accessibility, to be developed in consultation with both persons with disabilities and those who will be implementing the standards. He expressed concerns about other aspects of the proposed Act, including insufficient harmonization with the Code, the omission of a complaint mechanism, and insufficient requirements for reporting on activity and progress.
Other Matters
The Commission also:
- worked closely with a major employer in the mining industry to develop appropriate policies and procedures for employee drug and alcohol testing;
- wrote to the Ontario and Toronto Homebuilders Associations seeking cooperation in raising awareness in the homebuilding industry about the requirements of the Code and Commission policy with respect to customers with disabilities. This initiative resulted from a positive settlement reached between Mattamy Homes and a home buyer who uses a wheelchair and required design modifications;
- wrote to City of Toronto Building Code enforcement officials to provide information regarding the accessibility requirements of the Code and Commission policy;
- wrote to a housing development regarding age-based occupancy restrictions and discrimination based on family status;
- wrote to the Attorney General to request that they compel public officials who are licensed to conduct marriage ceremonies to perform this service for same-sex couples (In March 2004, the Ontario Government passed legislation that amends more than 70 Ontario statutes, including the Code, bringing them in line with court decisions that found same-sex marriage to be constitutional); and,
- wrote to General Motors to raise human rights concerns over the use of a medical surveillance form in its operations.
Public Education, Partnership and Promotion
The Commission has a significant responsibility to conduct public education throughout the Province. Public education is delivered primarily through its publications, Web site, public awareness campaigns and through the provision of speakers or displays.
In evaluating requests for speakers, the Commission uses the following criteria to determine which requests allow for a potential to:
- promote broad-scale prevention of Code violations and advancement of human rights;
- significantly enhance the Commission's relationship with a strategic sector identified in its public education strategy;
- "train trainers" and to have a sustainable "multiplier" effect in the target business or organization; and,
- reduce discrimination in a client sector and/or decrease incidence of formal human rights complaints.
This past year, the Commission had resources and capacity to accept just over 60% of the requests it received. In instances where an invitation is not accepted, the Commission tries to work with the organization or individual to ensure that their needs are met in some other way, either through Commission resources or referral to another organization.
During the 2004-2005 fiscal year, the Commission received 157 invitations and participated in a total of 96 public education events reaching over 7,500 individuals. The majority of these presentations were balanced throughout the educational, business and public sectors.
The Commission focuses its public education activities on issues that are associated with current human rights concerns. Following on the December 2003 release of the Report of the Racial Profiling Inquiry, Commission staff made eight presentations in 2004-2005 on this topic to various groups and organizations. There was also a great deal of public education activity around the release of the Guidelines on Accessible Education, much of which will carry on through the fiscal year 2005-2006. In addition to the above, presentations on such topics as “Human Rights in the Workplace”, “Sexual Harassment” and “Mandatory Retirement” were made to community groups, employer groups, law offices and educators.
In 2004-2005, the Chief Commissioner made a number of presentations to members of the general public. Other presentations were made to police groups explaining the results of the Commission’s Racial Profiling Inquiry. The Chief Commissioner was also involved in the majority of the 12 presentations made to international delegations visiting the Commission during this fiscal year.
And, as a member of the Canadian Association of Statutory Human Rights Agencies (CASHRA), as well as the International Association of Official Human Rights Agencies (IAOHRA), the Commission cooperates with other commissions in Canada and abroad. The Commission shares its expertise through CASHRA’s policy, education and legal sub-committees as well as its annual conference.
Aboriginal Human Rights Program
The Aboriginal Human Rights Program (AHRP) has now been in existence at the Commission for five years. The purpose of the AHRP is to create and build on awareness of the Code among Aboriginal communities and to enhance their access to the Commission’s services. The Commission has worked with partners in the Aboriginal community to implement this project.
Following a successful partnership with the Native Canadian Centre of Toronto, a need was identified for more public awareness about human rights, the Commission and the Code in the Aboriginal community and the agencies and organizations that serve them. The Commission has been working with the Union of Ontario Indians on two initiatives. The first involved the development of an information brochure directed to First Nations individuals and organizations that will be distributed broadly later in 2005. The second initiative led to the drafting of an article that provides information on the Commission and the Code, which will be published in the Anishinabek News by summer 2005. The article focuses on some specific cases that the Commission has dealt with which involved Aboriginal persons. As well, a representative of the Union of Ontario Indians also participated on a panel discussion during the Commission’s Race Policy Dialogue in October 2004.
Call for a Canadian Coalition of Cities Against Racism
In the Fall of 2004, the Commission communicated with the United Nations Educational, Social and Cultural Organization (UNESCO) to explore the possibility of a Coalition of Cities. The purpose of this coalition is the establishment of a network of cities interested in sharing experiences and expertise, and committed to adopting a Plan of Action to address racism.
A similar coalition has been developed in Europe with several large European cities signing on to the initiative. In January, representatives of the Commission attended a public forum in Ottawa organized by the Canadian Commission for UNESCO (CCU) to discuss the possibility of a coalition of cities against racism in Canada. In March 2004 at CCU’s Annual General Meeting in Toronto, the OHRC and the CCU issued a joint press release announcing that they and other partners were setting up a working group of government and non-government organizations to develop and promote a national proposal to Call for a Canadian Coalition of Cities Against Racism. The Commission has already begun championing the concept in Ontario with some cities and organizations including the City of Toronto, the Canadian Race Relations Foundation and the Union of Ontario Indians.
www.ohrc.on.ca
The Commission’s Web site provides the public with direct access to a wide array of information including: an overview of the Code, the Commission, its mission; policies and plain language guides, case summaries, public education resources, key public reports and submissions; news releases; and information on complaint procedures. During the fiscal year 2004-05, the Commission recorded over half a million (523,878) unique visits to the Web site, marking the fifth year in a row that the Commission has seen an increase in the number of visits to its site. Due to this increasing demand, redevelopment of the Web site is ongoing and a new Commission Web site will be launched in 2005.
Legal Services
During the 2004-2005 fiscal year, the Legal Services Branch was involved in the following resolutions: 6 final decisions and 17 interim or ancillary decisions at the Human Rights Tribunal of Ontario (H.R.T.O.), 43 settlements at the H.R.T.O., 3 judicial review decisions at the Divisional Court, 1 decision from the Superior Court of Justice, 6 decisions from the Court of Appeal, 1 decision on an appeal to the Divisional Court, and 6 decisions from the Supreme Court of Canada.
As of March 31, 2005 fiscal year, ongoing litigation in the Legal Services Branch comprised: 423 complaints before the Human Rights Tribunal of Ontario (242 of these are autism cases and are being heard together, 200 of which were referred in the previous fiscal year), 10 judicial review applications before the Divisional Court, 1 case before the Superior Court of Justice, 3 appeals before various Ontario Courts, and 2 cases at the Supreme Court of Canada.
The following are highlights of some of the significant decisions, settlements, and cases over the past year.
Case Summary Highlights
1. Settlement with the Ministry of Transportation, City of Hamilton and Disabled and Aged Regional Transit System DARTS (Settlement, H.R.T.O.)
A settlement was reached between the Commission, two complainants with disabilities, the Ministry of Transportation, the City of Hamilton, and the Disabled and Aged Regional Transit System (“DARTS”), a transit service for persons with disabilities provided by the City of Hamilton.
The complaints arose out of differences between conventional transit service provided by the City of Hamilton and the specialized DARTS transit services for persons with disabilities provided by the City of Hamilton. These differences included an annual $15 registration fee for those who were eligible for and registered with DARTS. As part of the resolution of the complaints, the City of Hamilton agreed to cease charging the $15 registration fee. The City also agreed to certain goals to minimize unaccommodated trip requests on the DARTS system and late arrivals when picking up DARTS passengers. The City agreed to establish a revised policy regarding registrants with DARTS who are “no shows” after having booked a trip, or who cancel a scheduled trip too late. These situations are a concern to all parties because “no shows” and “late cancellations” mean that trips on DARTS may be unnecessarily denied to others who want them. The City agreed to implement a confirmation and cancellation booking number system. The City further agreed to work in consultation with the City's Advisory Committee for Persons with Disabilities in designing a complaints process regarding transportation services for persons with disabilities.
2. Settlement with Pembroke Police Service regarding Recruitment Questions (Settlement, H.R.T.O.)
A settlement was reached between the Commission, a police force and a complainant in a complaint dealing with discrimination on the ground of “record of offences”. The complainant, who had applied for the position of police officer, had a prior criminal conviction for which he had been granted a pardon. During interviews, the respondent asked all candidates, “Is there anything in your background that would be detrimental to yourself, or embarrassing to this Service?”. The complaint replied “No” to this question. The respondent subsequently discovered the complainant’s conviction and pardon, and terminated his employment, on the basis that he had been untruthful in his answer. The complainant alleged that his employment was terminated because of his pardoned conviction.
3. Linda Saxon v. Corporation of Town of Amherstburg (Settlement, H.R.T.O.)
A settlement was reached between the Commission, the complainant and the respondent Town. The complainant made an initial complaint, on the basis of disability, because she was unable to access the Town’s library, which could only be entered via a number of stairs. The library has been renovated since the complainant filed her complaint. The Town has created a lobby at ground level with an elevator and automated doors. It also attempted to make modifications to a washroom to make it accessible. The Commission’s barrier-free design expert reviewed the renovations and found some remaining barriers, but approved of the elevator itself. The Town has agreed to implement a number of the Commission’s expert’s recommendations to improve accessibility at the Town library, namely:
- install handrails on either side of a ramp of a specified thickness;
- make level the threshold at an entrance;
- request the County Library to create an accessible after-hours book depository;
- install lever hardware on a door to the accessible washroom;
- remove a vanity unit to provide sufficient clearance in the accessible washroom;
- relocate the light switch, side grab bar, mirror, and paper dispenser in the accessible washroom; and,
- replace push buttons with push plates of a larger diameter that are easier to manipulate.
As part of the settlement, the respondent has also agreed to retain a qualified consultant to provide a mandatory training session for the members of the town council on the accommodation of individuals with disabilities.
4. Toronto Women’s Bathhouse Committee et al. v. Toronto Police Services Board et al. (Settlement, H.R.T.O.)
A settlement was reached in a complaint alleging discrimination on the basis of sex and sexual orientation when the personal respondents raided a bathhouse in which a number of lesbian women were partially clad. The settlement provides for a comprehensive training program of all officers, and requires the corporate respondent’s training unit to consult with the Commission, complainants and knowledgeable members of the community. The training program also includes time frames for the development and delivery of the program, as well as clear objectives and reporting requirements.
5. Mark Smith and Ontario Human Rights Commission v. Mardana Ltd. (c.o.b. as Mr. Lube), Keelestaff Enterprises Inc. (c.o.b. as Mr. Lube), Iswood Holdings Ltd. (c.o.b. as Mr. Lube), et al. (Ontario Divisional Court)
The Commission appealed the Tribunal's decision on this complaint, on the basis that a legal error had been made in not finding that race was at least a factor in Mr. Smith’s dismissal and in not finding that the respondents behaved willfully or recklessly in subjecting Mr. Smith to harassment and a poisoned environment. The Tribunal's decision is summarized in the Commission’s 2002-03 Annual Report.
The Divisional Court wrote a unanimous decision agreeing with the Commission. It allowed the appeal on all grounds. Further, the Court substituted its opinion for that of the Tribunal, and found that Smith’s race was a factor in his dismissal. The Court awarded significant monetary remedies to Mr. Smith. Moreover, the Court ordered the respondent to implement a series of public interest remedies, which had been recommended by the expert commissioned by the Commission and the Complainant, including a workplace anti-harassment policy, staff training, implementation of an internal complaint process, and education of management. The Court also ordered that the implementation of these public interest remedies were to be subject to the Commission’s supervision.
6. Losenno v. Ontario Human Rights Commission (Ontario Divisional Court)
The applicant sought judicial review of the Commission’s decision not to refer his complaint to the Human Rights Tribunal of Ontario for a hearing, due to the reasonableness of the employer’s settlement offer when assessed against the likelihood of the applicant’s demands being granted by the Tribunal. The Divisional Court, in dismissing the application for judicial review, held that the Commission was correct in considering the resolution proposed by the employer and deciding that referral to the Tribunal was not an appropriate procedure. Furthermore, the Court held that the Commission, in assessing the adequacy of the employer’s offer, was acting squarely within its core function and area of expertise. The case is currently under appeal.
7. Ministry of Public Safety and Security v. Michael McKinnon (Ontario Court of Appeal)
The Court of Appeal has dismissed an appeal by the Ministry of Public Safety and Security (formerly the Ministry of Correctional Services) of the Divisional Court and the Human Rights Tribunal of Ontario’s decisions arising out of the complaint filed by Mr. McKinnon. The Tribunal decision is summarized in the Commission’s 2002-03 Annual Report. The Divisional Court decision is summarized in the Commission’s 2003-04 Annual Report.
The appeal concerned the scope of the remedial jurisdiction of the Tribunal to order Ministry-wide remedies after its finding of racial discrimination in the corrections workplace, and the subsequent failure of the Ministry to abide by the Tribunal's first remedial order. The Court of Appeal held that the Tribunal had extensive supervisory jurisdiction over its orders. The Tribunal could remain seized of a matter and had an ability to recast its orders to deal with ongoing chronic, systemic, racism at correctional facilities. The Court of Appeal agreed with the observations of the Tribunal and the Divisional Court that system-wide remedies were required in order to address the racial discrimination in the workplace, as well as the Ministry's failure to implement the Tribunal's first orders in good faith.
8. Syndicat Northcrest v. Amselem, League for Human Rights of B’nai Brith Canada v. Syndicat Northcrest et al. (Supreme Court of Canada)
The Ontario Human Rights Commission participated as an intervener in this appeal. The appellants, all Orthodox Jews, had built succahs on the balconies of their condominium units in observance of their religious beliefs. The building corporation requested their removal. The succahs violated by-laws within a co-ownership agreement signed by the appellants. The Supreme Court of Canada, in a 5 to 4 decision, held that the appellants’ freedom of religion under the Quebec Charter was infringed by the co-ownership agreement that they had entered into for the condominium units. The Court found that the interference with the property rights of the other owners was not significant enough to warrant a limitation of the appellants’ freedom of religion. The appellants did not contract out of, or waive their religious freedoms by signing the co-ownership agreement as, even assuming that such waiver were possible, it would require clear and explicit language in the agreement to do so.
The majority noted that freedom of religion under the Quebec and Canadian Charter required only that an individual demonstrate he or she sincerely believes or is sincerely undertaking [a practice] in order to connect with the divine or as a function of his or her spiritual faith. The majority held that a religious freedom analysis did not require the individual to demonstrate the objective validity of his or her beliefs, such as showing that a majority of the members of their faith followed the same practice.
9. Reference regarding Same Sex Marriage (Supreme Court of Canada)
The Ontario Human Rights Commission participated as an intervener in this appeal. The federal government asked the Supreme Court of Canada to answer four questions: (1) was its proposed legislation extending the capacity to marry to persons of the same sex within the exclusive jurisdiction of the Parliament of Canada; (2) if so, was the legislation consistent with the Charter; (3) does the Charter guarantee of freedom of religion protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs; and (4) is the common law opposite sex requirement for marriage for civil purposes consistent with the Charter.
The Supreme Court held that the legislation was within the exclusive jurisdiction of Parliament. The legislation was also consistent with the Charter. Recognizing the s. 15 equality rights of one group, in this case same sex couples, could not, in itself constitute a violation of the equality rights of others. As for a potential conflict with s. 2(a) of the Charter, freedom of religion, conflicts of rights do not imply conflict with the Charter, but rather, require internal balancing and delineation. The Court was not satisfied that conflicts incapable of resolution under s. 2(a) would arise. Absent unique circumstances with respect to which the Court would not speculate, the guarantee of religious freedom in the Charter was broad enough to protect religious officials from being compelled by the state to perform civil or religious marriages contrary to their religious beliefs.
The Court declined to answer question 4. The government had stated its intention to proceed with the legislation regardless of the Court’s opinion. As a result of lower court decisions in five provinces and one territory, which the government had accepted, the common law definition no longer imported an opposite sex requirement for marriage. The parties in the previous litigation had relied upon the finality of these decisions.
Accountability Framework
The Commission’s Accountability Framework establishes targets for the organization’s performance in the coming year and reports on achievements against previously-established targets.
The following is a summary of achievements against targets in the 2004-2005 fiscal year.
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The following are the Commission’s public commitments for the 2005-2006 fiscal year. |
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2005-2005 COMMITMENTS |
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[32] The rate of “abandoned” calls does not account for individuals who call back again successfully and are able to speak with an inquiries representative.