IV. Context

A. Role and Importance of Human Rights Commissions

No human rights institution, no matter how constituted or resourced, can single-handedly protect and advance human rights. An effective human rights system relies on the cooperation and participation of many players, including government, NGOs, advocates, unions, and associations, to name just a few.  However, human rights commissions in Canada and abroad have played a distinct and important role in society. Commissions have been a cornerstone of a Canadian human rights system that has been lauded, envied, and modelled around the world.

International human rights bodies have identified the importance of human rights institutions. In 1993, the United Nations General Assembly adopted the Principles Relating to the Status of National Institutions (“Paris Principles”) [7] to set international standards for the effectiveness and independence of human rights commissions, and to ensure their proper functioning. The Paris Principles emphasize the importance of creating and maintaining human rights institutions that are vested with competence to protect and promote human rights, and that have as broad a mandate as possible to do so.

In Canada, the Canadian Association of Statutory Human Rights Agencies has also spoken out on the importance of human rights commissions with broad mandates: [8]

… there is a need for independent human rights commissions with broad mandates…the capacity to identify issues and to speak out is an important part of a commission’s mandate to promote awareness of and respect for human rights.  At the same time, an ability to receive and investigate individual complaints is also recognized as an important and common function of a commission.  Particularly important as well...is its capacity to initiate, join in or intervene in human rights cases before a tribunal or at a higher court as an expert and independent body representing the public interest.

There have also been several studies over the past decade echoing this conclusion. [9]

B. Ontario’s Current Human Rights Compliance System

The OHRC is responsible for carrying out a broad range of interrelated roles. The OHRC has wide discretion in fulfilling its responsibilities for human rights promotion, advancement, and education, and its activities in these areas have taken on a variety of forms. Its complaint processing responsibilities are subject to significant legislative requirements.

Under its legislation, the OHRC is required to receive all complaints that are filed by individuals claiming an infringement of their rights. Generally, a complainant’s first contact with the OHRC is through its Inquiry and Intake office, which provides advice and information on human rights-related matters. Where an individual wishes to file a complaint, he or she is provided with complaint forms. Complainants with special needs (for instance, related to a disability) may receive assistance in drafting the complaint. The complaint, once filed, is served on the respondent, who is required to provide the OHRC with a written response to the complaint. This response is shared with the complainant. 

The Commissioners[10] may 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 OHRC’s jurisdiction, or, there is evidence that the complaint was frivolous, vexatious or made in bad faith[11].

The Code obliges the OHRC to try to settle a complaint.  Following receipt of the respondents’ response, the complaint is referred to the OHRC’s Mediation office, and the parties are offered the option of mediation. Complaints that cannot be resolved through mediation are referred to investigation.  An investigation officer conducts an impartial investigation, which includes interviewing witnesses and gathering documentary evidence. Investigation officers attempt conciliation during the investigation process.  Parties may reach a settlement at any stage of the process, and the complaint will then be considered completed and closed. Cases are also closed where the complainant has withdrawn or no longer wishes to participate in the complaints process.   Following investigation, a Case Analysis Report is drafted by OHRC staff and disclosed to the parties, who may then make submissions based on it. The Case Analysis Report, together with the parties’ submissions and the complaint and response are put before  the Commissioners, who make a decision as to whether or not there is sufficient evidence, and the procedure is appropriate, to warrant referral to the HRTO for a hearing[12].

The complainant can ask the Commissioners to reconsider a decision by filing an application for reconsideration[13]. The OHRC will advise the respondent of the complainant’s request for reconsideration. The OHRC will consider the request and make its decision known to both parties. The OHRC’s decision at this point is final and there is no right to appeal by either party.

Where complaints are referred to the HRTO, the HRTO undertakes mediation, which results in the resolution of a significant number of cases. Where the case is not resolved, the HRTO hears evidence and decides whether or not discrimination occurred and what needs to be done to remedy the situation and prevent further discrimination. The HRTO is independent from the OHRC. The OHRC, the respondent and the complainant are each separate parties before the HRTO. The OHRC is responsible for presenting evidence about the complaint to the HRTO, although the complainant has the right to make separate submissions.  The OHRC does not represent the complainant or the respondent at the HRTO. The respondent and the complainant may each retain their own legal counsel.  Any party to a complaint may seek to appeal a decision of the HRTO to a higher court.

As can be seen, the requirements of the Code with respect to the OHRC’s compliance functions have given rise to a regime of considerable administrative complexity. Complaints pass through numerous stages, at each of which considerations of administrative fairness, accessibility, efficiency and effectiveness must be balanced. The process-laden nature of this complaints scheme contributes significantly to lengthy case resolution times.

As Ontario has the largest and most diverse population in Canada, it is not surprising that the OHRC has the highest caseload per capita in the country, or that the issues brought to the OHRC for resolution are increasingly complex and challenging. The increasing complexity of complaints requires greater expertise and investment of resources at all stages of the process, from inquiries, through mediations, investigations, and litigation. This too has an impact on the length of time required to resolve complaints.

Both the size and the age of the caseload continue to be challenges for all human rights commissions. The OHRC has little control over the size of its caseload since the number of complaints in the system depends to a large extent on the number of complaints filed in any given year. The Code requires that the OHRC accept all complaints individuals wish to file, even those where the OHRC has informed an individual that the matter does not fall under the Code.

As discussed previously, over the past ten years, the OHRC’s budget has remained largely flat:  in 2004-05 the budget was $12,519,000, compared with $11,306,000 in 1995-96.  The current OHRC budget amounts to merely one dollar per Ontarian per year.  Yet, the demands on the OHRC’s resources have continued to grow and become more challenging.   Nowhere are these pressures more evident than in the OHRC’s caseload.  In 2004-2005, the Commission received 2,399 new complaints, about 17% higher than the average number of complaints filed over the past five-year period from 1999 to 2004.  On March 31, 2005, the number of active cases at the OHRC was 2,733.  This represents an increase of 7.2% over last year’s caseload of 2,549 cases.  As a result, the average age of the OHRC’s caseload has begun to increase. It now stands at 11.6 months.  If new complaints continue to be filed at the current rate of over 240 per month, with no other changes to the system, the OHRC will see an ongoing increase in its inventory and aging of cases.

The increase in the number of complaints being filed with the OHRC is possibly due to several factors.  The success of the OHRC’s policies and public education on a wide range of issues has raised civic awareness about human rights and the role of the OHRC.  The OHRC’s groundbreaking work in areas such as racial profiling and the accommodation of students with disabilities has enhanced public confidence and encouraged individuals to seek remedies for discrimination.  Further, the failure of other administrative bodies to adequately address matters within their own jurisdictions is resulting in individuals turning to the OHRC’s complaints mechanism for redress.   For example, the Special Education Tribunal (“SET”) established under the Education Act[14] to hear matters relating to students with special needs only has the jurisdiction to hear cases on a narrow range of issues affecting these students.  Consequently, individuals have no choice but to come to the OHRC to obtain redress on a wide range of educational issues with which the SET does not deal.  Whereas the SET deals with about 4 cases per year, the OHRC hears dozens of cases annually on issues affecting students with disabilities alone.[15] 

The volume and pressure of individual cases also limits the ability of the OHRC to fully address the many systemic issues that require attention. The resolution of individual complaints may provide opportunities for the resolution of systemic issues – for example, through the imposition of public interest remedies, or precedent-setting tribunal and court decisions. However, as many have noted, individual complaints may not always be the most effective way to tackle broad issues that involve numerous players. 

The demand on other OHRC functions is also increasing.  For example, in 1995-96, the OHRC conducted 38 public education events, reaching 1,384 individuals.  By way of comparison, in 2004-05, the OHRC conducted 96 public education events, reaching an audience of 7,500 individuals. 

Even in the face of these challenges, the OHRC has continued to achieve many successes.   Despite the increase in complaints received, the OHRC has continued to maintain a current caseload (i.e., the average age of cases in the inventory is less than 12 months).  At the same time, the OHRC also referred 150 cases to the HRTO in 2004-2005.  In the area of litigation, the OHRC has been involved in a number of high profile cases that have added to the body of human rights case law.[16] The OHRC has also continued to take a leadership role in policy development[17], public education, and providing policy advice to government[18]

C. History of Human Rights Reform

Throughout the last several years, there have been numerous reviews of human rights systems at both the provincial and federal levels. 

In 1992, the Cornish Report[19] reviewed human rights enforcement procedures under the Ontario Human Rights Code.  The Report recommended that complainants have direct access to a human rights tribunal, with legal representation to be provided by publicly-funded advocacy services.  The primary functions of the OHRC would be to conduct education and research, as well as to investigate complaints of a systemic nature.

In 1994, Bill Black, Special Advisor to the Government of British Columbia, published a report on human rights that examined that province’s human rights legislation and made recommendations for both statutory and administrative reform in that province[20]. The report recommended that the province’s human rights commission initiate, investigate and mediate complaints; intervene in complaints with a public interest component; develop and implement education and information programs; conduct research into equality issues; and inquire into potentially discriminatory practices.  The report recommended that the province’s human rights tribunal be responsible for adjudicative functions, including conducting hearings and reviewing decisions of the B.C. Commission.

In 2000, the Honourable Gerard La Forest published a report on his findings and recommendations after conducting a comprehensive review of the Canadian Human Rights Act (“CHRA”).  The La Forest Report[21] recommended that the CHRA should place more emphasis on public education and addressing systemic discrimination.  It also recommended that complainants have direct access to a hearing by a human rights tribunal with legal representation provided to complainants (and respondents who demonstrate need) by a publicly funded legal clinic.  In this model, the primary functions of the Canadian Human Rights Commission would be to assist complainants in drafting and filing their complaints, initiate complaints where discrimination is systemic or a resolution is in the public interest, and promote human rights through public education.  

Between 2000 and 2003, the Nova Scotia Human Rights Commission (“NSHRC”) conducted a comprehensive review of its organization to both address concerns about its service delivery and respond to national human rights trends.  The NSHRC released a discussion document, held a series of public consultations, and released a consultation report outlining its findings.  Its key findings related to the NSHRC’s mandate, priorities, organizational design and work processes.

In 2003, the Quebec Human Rights Commission conducted a review of its Charter of Human Rights and Freedoms in consultation with a wide range of stakeholders and interested parties.  Following this, a report was released which contained twenty-five recommended amendments to the Quebec Charter to ensure its effectiveness in the face of modern challenges.  The report includes recommendations that the Quebec Commission be given greater independence and that its mandate and jurisdiction be expanded. 

In 2004, the New Brunswick Human Rights Commission published a position paper on human rights renewal in New Brunswick.  The paper was based on a comprehensive review of New Brunswick’s Human Rights Act and feedback solicited from a broad stakeholder base over the course of two years.  The paper recommended reforms to that province’s human rights legislation to allow the Commission to better serve the interests of the public.  Proposed amendments included adding new grounds, increasing the independence of the Commission and “address[ing] the perennial budget shortfall faced by the Commission that limits its ability to provide effective, efficient and timely services.”

Also in 2004, the Canadian Human Rights Commission (“CHRC”) embarked on a similar consultative process, with the aim of “proposing its perspective on the adjustments needed to make the human rights system even more effective in the 21st century”. The CHRC believes that while aspects of its enabling Act need to be updated to further its original intent, the changes need not be major.

Like other human rights commissions, the OHRC has recognized that reflection and reform are essential if it is to successfully meet the challenges it faces. The OHRC has, for the past several years, consistently requested that the government either make amendments to the Code that would improve its efficiency and ability to deal effectively with its caseload, or increase its budget to enable it to fully achieve its mandate. In lieu of such changes, the OHRC has undertaken significant internal reforms to maximize its effectiveness within current structures and resources, as outlined below.

D. History of Internal Reform at OHRC

The past several years have seen significant challenge and change in the operations of the OHRC. These changes took place in a context of dynamic external circumstances including changes in government and new legislative agendas, budget constraints, and reviews of government agencies along with a number of significant human rights tribunal and court decisions, shifts in the public policy landscape, and growing demand for the OHRC’s varied services.

During this period, the OHRC deployed a number of creative strategies and initiatives to greatly improve the efficiency and effectiveness of its operations and services, while not compromising on the broad exercise of its mandate.

These initiatives have included:

  • internal restructuring of different branches and offices of the OHRC;
  • centralization of the OHRC’s Inquiry and Intake services;
  • cost-saving tele-work arrangements for OHRC staff working in different regions of the province;
  • implementation of voluntary mediation services as an alternative approach towards complaint resolution;
  • effective use of information technology for both case management and public education; and most recently,
  • the introduction of a new self-draft complaint process to speed up the filing of complaints.

The United Nations’ Paris Principles recognize that "operational efficiency" is one of the key elements, along with “adequate resources”, for the effective functioning of commissions.  Operational efficiency includes: effective working methods and rules of procedure for service delivery; personnel practices that encourage retention of efficient, representative, impartial and well-trained staff; and, self-evaluation by institutions with a view to continuously improving their own effectiveness. These have all been central in the OHRC’s restructuring initiatives.

At the same time, the pursuit of operational efficiency in a commission’s compliance function should not compromise the institution’s ability to engage in its other mandated functions for the promotion and advancement of human rights.

The OHRC has also taken steps to give renewed emphasis to the preventive aspects of its mandate, and to more effectively dealing with systemic issues, including closer integration of its various functions, greater emphasis on public interest remedies in all settlements in which the OHRC is involved, and increased use of its broad powers under section 29 of the Code.

E. Cost Considerations

Sufficient resources are essential to an effectively functioning human rights system.   As mentioned previously, the OHRC has been functioning with essentially the same budget levels for the past ten years, despite an increased demand on its resources.  This situation has posed significant challenges.  At the release of the OHRC’s 2004-2005 Annual Report, Chief Commissioner Keith Norton commented, “I am concerned that in the face of a growing caseload and little foreseeable action in response by the government to repeated requests from the OHRC over the past number of years for procedural amendments to the Code or additional resources, the OHRC is facing a daunting challenge regarding its capacity to function effectively.”[22]

The current government has promised Ontarians that it will “deliver real, positive change by improving the public services Ontarians depend on” and that it will do this by “first secur[ing] the fiscal foundation upon which those services are built.”[23] Cost-effectiveness is a critical objective in the operation of any publicly- financed system.  However, other considerations must be given at least equal consideration, such as ensuring that the public can access an impartial, accessible, accountable and expert body if they have experienced discrimination; accounting for the power imbalance that frequently exists between complainants and respondents; and ensuring that the public interest is protected.  Human rights issues invoke more than disputes between two parties.

It must be recognized that any human rights system will engender costs if it is to function effectively.  In Ontario’s current system, human rights services are centralized and the government provides a set budget to both the OHRC and to the HRTO.  Both entities are responsible for fulfilling their legislated mandates within these respective budgets, and for accounting to government on how this money is spent. There are other human rights models that are less centralized, with functions being performed by various players, sometimes in the private sector. 

When considering cost-effectiveness, all costs must be considered. In a centralized system, costs will be more readily apparent. In a system where roles have been delegated to private actors, costs may still be incurred, but may be more difficult to monitor or manage.  For example, in a system where complainants had direct access to the HRTO, investigation of complaints would generally be conducted by legal clinics or members of the private bar on behalf of their clients. The cost and effectiveness of such investigations would be difficult to track. When the cost-effectiveness of a human rights system is being considered, one must therefore take into account both hidden and visible costs, and how accountability for cost-effectiveness can be ensured.

Another important factor to be considered is who can best afford to bear the inherent costs of a human rights system. For example, in a system where individuals bear increased responsibility for investigating and litigating their own human rights complaints, the financial burden could prove a significant deterrent to bringing forward human rights issues, unless steps were taken to assist with the burden of such costs.

As noted previously, the OHRC currently deals with a number of issues that could also be dealt with by other administrative bodies, such as the SET or the WSIAT. When considering the cost-effectiveness of a human rights system, thought must be given to whether functions (and therefore costs) have been allocated to the appropriate public system.

In a similar vein, where a human rights system leads to an increased likelihood of judicial review, the cost implications must be taken into account. [24]

Finally, when changes to a human rights system are being contemplated, it is important to be clear on whether the new system will be required to operate within current resources, or whether an increased investment is required. As well, it must be remembered that movement to a new system will inevitably involve transitional costs.

[7] Principles Relating to the Status of National Institutions, annex to National Institutions for the Promotion and Protection of Human Rights, CHR Res. 54, UN ESCOR, 1992, Supp. No. 2 of UN Doc. E/1992/22, chap. II, sect. A; GA Res. 48/134, UNGAOR, 1993, Annex.  Please refer to Appendix 1.
[8] “Submission by the Canadian Association of Statutory Human Rights Agencies Regarding The Government of British Columbia’s Draft Human Rights Code Amendment Act: Bill 53” (Submission to the Attorney General of British Columbia, September 2002).
[9] In 2000, the Canadian Human Rights Review Panel clearly identified the continued need for human rights commissions in Canada, and recommended in particular that the Canadian Human Rights Commission be strengthened to carry out a host of functions involving both promotion and protection of human rights (Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision, (Ottawa: Canadian Human Rights Act Review Panel under the authority of the Minister of Justice and the Attorney General of Canada, 2000)(Chair: Gerard La Forest )). 

In December 2001, Canada’s Parliamentary Standing Senate Committee on Justice and Human Rights gave a similar message, acknowledging that the mandates of human rights commissions in Canada are important in preventing future discrimination and human rights violations. They further stated that commissions have the mandate to review proposed legislation and policies, and, when they are able to conduct these analyses and publicize their findings, this aspect of their work can be invaluable not only for the general public, but also for parliamentarians (Senate of Canada, Standing Committee on Human Rights, Promises to Keep: Implementing Canada's Human Rights Obligations, Sessional Paper No.1/37-607S (13 December  2001).
[10] Under section 27(1) of the Code, no fewer than seven Commissioners are appointed to the OHRC by the Lieutenant Governor in Council, which also fixes their remuneration and allowances. Commissioners make decisions under section 34 and 36 of the Code, approve settlements under section 43 of the Code, and approve the OHRC’s policies and guidelines, among other functions.
[11] See s. 34 of the Code.
[12] See s. 36 of the Code.
[13] See s. 37 of the Code.
[14] Education Act, R.S.O. 1990 c. E.2.
[15] The OHRC has become the primary complaints mechanism for a range of other administrative schemes as well.  For example, despite strong input from the OHRC, the new Accessibility for Ontarians with Disabilities Act does not contain its own complaints mechanism and individuals must continue to come to the OHRC for redress on a wide number of disability issues; the Workplace Safety and Insurance Tribunal, though vested with some authority to deal with disability accommodation issues, does not have the authority to provide damages or address the public interest and, as a result, the OHRC is left to deal with these issues; and, many wishing to file complaints against police officers choose to go to the OHRC due to a lack of confidence in the civilian complaints process.  Various government initiatives have also contributed to the growing numbers of complaints being filed with the OHRC.  For example, the Ontario government’s decision in 1995 to repeal the Employment Equity Act resulted in the OHRC becoming the primary body to which individuals experiencing discrimination in employment turn; and the government’s proposal to abolish mandatory retirement may result in the OHRC receiving an increased number of complaints from older Ontarians relating to age discrimination in employment.  Despite these extra pressures, the OHRC has not received a corresponding increase in its funding to deal with these matters. 
[16] See for example:  Brockie v. Brillinger, which involved a balancing of individual religious rights and individual rights to protection from discrimination in the marketplace based on sexual orientation (Brockie v. Brillinger (No. 2) (2002), 43 C.H.R.R. D/90 (Ont. Sup.Ct.)); Kearney v. Bramalea Ltd., an OHRT ruling that use of minimum income criteria or rent-to-income ratios by landlords when assessing applications for tenancy can prevent individuals from accessing housing based on their sex, race, marital status and family status, to name a few (Kearney v. Bramalea Ltd. (No. 2) (1998), 34 C.H.R.R. D/1 (Ont. Bd. Inq.); and Naraine v. Ford Motor Co. Ltd.,  which represented a significant step forward for cases involving race discrimination through its ruling that harassment poisoned the complainant’s work environment which ultimately led to his dismissal (Naraine v. Ford Motor Co. of Canada (No. 4)  (1996), 27 C.H.R.R. D/230 (No. 4) (Ont. Bd. Inq.) aff’d (1999), 34 C.H.R.R. D/405 (Ont. Ct. (Gen. Div.)), Board of Inquiry’s order upheld except with respect to the issue of reinstatement (2001), 41 C.H.R.R. D/349 (Ont. C.A.), leave to appeal denied [2002] S.C.C.A. No. 69).
[17] To date, OHRC policies and guidelines have covered such topics as:  sexual harassment, sexual orientation, gender identity, pregnancy and breastfeeding, disability and the duty to accommodate, drug and alcohol testing, creed and the accommodation of religious observances, age discrimination against older persons, accessible education for students with disabilities; and most recently, racism and racial discrimination.
[18] In 2004-05, the OHRC provided policy advice to government on matters such as the discriminatory effect of school discipline policies, the police complaints review process, mandatory retirement, the regulation of the private security industry, and various policies and pieces of legislation, including the Accessibility for Ontarians with Disabilities Act.
[19] Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Government of Ontario, 1992) (Chair: Mary Cornish).
[20] Black, Bill, B.C. Human Rights Review: Report to the Ministry Responsible for Multiculturalism and Human Rights.  (Vancouver: B.C. Ministry Responsible for Multiculturalism and Human Rights , December 1994).
[21] Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision, (Ottawa: Canadian Human Rights Act Review Panel under the authority of the Minister of Justice and the Attorney General of Canada, 2000) (Chair: Gerard La Forest ).
[22] Keith Norton, (comments on the release of the OHRC’s Annual Report 2004-2005, press conference at Queen’s Park, Toronto, July 12, 2005) [unpublished]. 
[23] Speech from the Throne : Strengthening the Foundation for Change, address on the opening of the First Session of the Thirty-Eighth Parliament of the Province of Ontario, Hansard  L002 – Thursday 20 Nov 2003. Online: Legislative Assembly of Ontario, Hansard, House Business <http://www.ontla.on.ca/hansard/house_debates/38_parl/Session1/L002.htm>
[24] Since all models for dealing with human rights matters effectively involve “gatekeeping” at some level (i.e. at a commission level or at a tribunal level), it is important to consider the potential for judicial review and how this may be minimized depending on the particular model used.  Under the current system, there have been relatively few judicial reviews of human rights decisions. This is largely as a result of three factors:  (1) a more integrated approach within the OHRC that allows the OHRC’s legal services branch to provide advice to OHRC decision makers; (2) more reasonable decision making on the part of the OHRC; and (3) the development of a more deferential standard of review with respect to decisions that fall within the OHRC’s discretion, in part out of an acknowledgement of the OHRC’s expertise.