Part I: The Commission: A decade of evolution

Over the past ten years, the Ontario Human Rights Commission has experienced an evolution, one focused on continually finding new ways to be efficient and effective, with the goal of enhancing its capacity to deliver on its mandate. In the face of a mounting caseload and restrictions in its budget, the Commission embarked on a decade of change that ultimately has led to significant success and a strengthened institution. Taking time to look back and review its accomplishments, as well as the challenges it has faced, will help the Commission remain relevant and effective as it carries out its mandate into the 21st Century.

Corporate Restructuring

In the early to mid 1990s, there was a renewed emphasis within the public sector on the use of public resources in a sustainable, cost-effective, and responsive manner with the goal of increasing effectiveness through sound reforms. In response, the Commission implemented a series of organizational improvement initiatives that aimed to increase the effectiveness and the efficiency of the Commission. They included:

• Quality and Quantity Assurance program and increased accountability
• Reformed customer service program
• Streamlined enforcement procedures
• Enhanced technology and training, and
• Leaner and more cost-effective organizational structure

Since their implementation, these initiatives resulted in improvements in the numbers of cases closed and in the quality of the work of the Commission.

Throughout the mid 1990s, the Commission was subject to review by several government bodies, which in part, led to many of the reforms that occurred over the past decade.^[1] In response to these reviews, as well as its own evaluative efforts, the Commission has gone through a period of reform that has significantly changed the Commission’s structure, increased its transparency and accountability, and strengthened its capacity to deliver on its human rights mandate.

Centralized Services

Beginning in 1996-97, the Commission consolidated its regional offices throughout the province into one head office in Toronto, covering two specialized functions: mediation and investigation, with some staff continuing to work in regions through shared office arrangements. Job duties for these specialized functions were re-aligned into two separate positions: mediation officers and investigation officers.

The Commission also established a centralized call centre in 1997, offering one-window service, five days a week from its head office in Toronto. Given that the majority of people contact the Commission by telephone, the centralization of inquiry and intake services has significantly improved access to the Commission.

In 1999-2000, the Commission faced the challenge of having to find additional savings as part of government-wide budget restrictions. In response, it introduced new working arrangements for Commission staff located in regional areas of the province through teleworking. The project has helped the Commission to continue to operate within its funding allocation while maintaining a presence in the regions outside of Toronto.

Registrar’s Office

In 1996-97, a newly formed Registrar’s Office consolidated responsibilities that had formerly been spread among the Chief Commissioner’s Office and three other Branches. This Office has provided clients with a central point of access to the Commission on cases after investigation has taken place. It is responsible for processing reconsideration requests, co-coordinating all functions related to Commission and Panel Meetings, and responding to Freedom of Information and Ombudsman issues.

Technology

In 1995, the Commission began a major upgrade of its technology infrastructure linking all parts of the Commission by computer, allowing for a more effective workflow and improved internal communications. By 1997, the Commission introduced the Case Management Information System (CMIS), and one year later, won the Ontario Government’s Amethyst Award for outstanding achievement by Ontario’s Public Servants for designing this time and money-saving technology. The system has helped the Commission manage all of its case documents and procedures electronically from the first phone call through to a final resolution, with modules developed for handling inquiries, intake, mediation, case allocation and investigation, referral decisions, and litigation. Importantly, it integrates policy and legal considerations into every stage of complaint processing.

CMIS has been essential to the Commission in achieving its case management objectives. It has drawn wide attention nationally and internationally, becoming a model for similar organizations that manage complaint or case processing systems.

Given funding realities, the Commission decided to capitalize on the value of the original CMIS through a long term license of the intellectual capital of CMIS in exchange for significant and ongoing upgrades to the software. In 2004, the Commission entered into an agreement with WorkGroup Designs Ltd., which is now globally marketing the CMIS technology.

Web site

Since launching its Web site, www.ohrc.on.ca, in 1996, the Commission has progressively used the Internet as a resource for public education and to share information on human rights issues. It immediately became a cost effective and indispensable tool for the Commission to reach Ontarians by providing quick access to news releases, reports and policies, as well as a wide variety of other publications, including information about the Code and the Commission, the complaints process, plain language guides, case summaries and public education resources.

In recent years, the Commission has made more creative use of its Web site as a unique tool in support of the policy process. During its 2003 Racial Profiling Inquiry, the Commission collected submissions from the general public through its Web site. This resulted in a public consultation process that not only was more accessible for the public, but also more efficient and ultimately more effective for the Commission’s policy process.

During the fiscal year 2004-2005, the Commission recorded over half a million (523,878) unique visits to the Web site, marking the fifth consecutive year the Commission has recorded an increase in Web site visits. Substantial redevelopment of the site is in progress and a new Commission Web site will be launched in 2005 to increase capacity and address the growing demand on this medium.

Integration Protocol

Over the last several years, the Commission implemented protocols to improve the investigative process by integrating legal and policy perspectives throughout. This integration has allowed the mediation and investigation branch to draw on the combined expertise from the legal and policy branches when mediating, investigating and analyzing, or settling a complaint. This has enhanced the quality of the Commission’s work and permits shorter and more focused resolution of cases. 

The integration of Commission functions also gives the policy branch access to the pragmatic perspective of the other two branches in undertaking research, inquiring into matters, developing policy, as well as in the delivery of public education and communication activities. The legal branch’s involvement in the development of Commission policies in turn better promotes the advancement of human rights jurisprudence.

Mission Statement and Code of Ethics

In 1997, the Commission developed a new mission statement and a Code of Ethics. Drawn directly from the Commission’s mandate as defined by the Ontario Human Rights Code, the Mission Statement says,

The Ontario Human Rights Commission is committed to the elimination of discrimination in society by providing the people of Ontario with strong leadership and quality service:

• in the effective enforcement of the Human Rights Code; and,
• in the promotion and advancement of human rights.

Within this framework, the Commission introduced a new Code of Ethics the following year, to build on the Commission’s existing improvements, enhance its internal capacity as a professional and accountable institution, and to be more transparent about its operations. The Code of Ethics formalizes the Commission’s commitment to uphold the spirit and principles of the Ontario Human Rights Code in its daily work and helps to define what the Commission is, what it stands for, and how it should conduct its business. It also offers an internal assessment tool, setting a bar of excellence against which the Commission measures and improves on the quality of its work and the level of its service to the public. To support the Code of Ethics, the Commission appointed an external Ethics Advisor to provide guidance to Commissioners and staff regarding ethics-related issues.

Accountability Framework

The Commission first introduced an Accountability Framework in its 1996-1997 Annual Report to report to the public and the Legislature on its activities. The Accountability Framework acts as a reference to help the Commission monitor its progress, review its plans, and assess its successes and shortcomings over the course of the year, as well as set out commitments for the following year.

Operational Effectiveness

In 2002, the Executive Director’s Office championed a number of initiatives aimed at increasing both employee satisfaction and operational effectiveness of the Commission. These included employee-led reviews of the Commission’s operations and services, as well as new performance management, organizational health, and learning plan processes for Commission staff.

Staff Training

Staff training has remained an important component of the evolution of the Commission over the past ten years and has been instrumental in ensuring that Commission staff is aware of changes in Commission protocols, research and consultation initiatives, new policies, as well as relevant human rights tribunal and court decisions. 

Training initiatives have focused on key skills required by staff and addressed topics such as: advanced mediation; systemic investigation; techniques for effective casework; writing case analyses and reasons; conducting conciliations; Code interpretation and jurisdiction, application of section 34; customer service; performance management; and the Code of Ethics. Commission staff also receives training on new Commission policies and initiatives, such as on disability issues, training on the Aboriginal Human Rights Program and, more recently, sessions on the Racial Profiling Inquiry and the Disability and Education initiative. As well, the Commission regularly delivers public education sessions to private, non-profit and government agencies throughout Ontario.

Over the past ten years, the Commission has increasingly developed and led both in-house and external training on Commission policies when significant changes in policy occur. For example, the Commission provided substantial staff training with the 2001 release of the revised Policy and Guidelines on Disability and the Duty to Accommodate. Additionally, leading to the launch of the inquiry into racial profiling in 2003, the Commission provided in-house training for staff on this large-scale initiative.

Inquiry and Intake

The Commission’s Inquiry and Intake Service is the first point of contact for members of the public who want to learn more about their human rights and responsibilities or are considering filing a human rights complaint.

In the mid 1990s, the inquiry and intake function of the Commission underwent a restructuring that centralized the service in the Toronto office and in turn created a single point of first contact and consistent advice to people calling the Commission. Prior to this, the responsibility for this function was divided across regional offices, which sometimes resulted in inconsistent case management and application or interpretation of operational policy. Centralizing the inquiry and intake function addressed this issue and has become a key aspect of the Commission’s continued commitment to increasing its quality of service to Ontarians.

Restructuring of inquiry and intake has included standardized and ongoing training for staff on the policies and procedures of the Commission as well as customer service to ensure they are equipped with current skills and knowledge in human rights.

Since 1997, the inquiry and intake staff has successfully handled a steady increase in the number of calls to the Commission. Furthermore, they have become more proactive in their efforts to provide top quality service to Ontarians. For example, in 1997, the Commission introduced a linguistic services tool so that Commission staff could refer callers to non-official language interpreter services where needed. And, in 1998, in response to the Theresa Vince Inquiry^[2], the Commission introduced a new procedure to help victims of sexual harassment identify potential situations of violence and refer them to appropriate community services including the police.

Additionally, in 2002-2003, the Inquiry Office became more proactive in educating complainants and respondents about their rights and responsibilities under the Code on their first contact with the Commission. This has helped empower potential complaints to try and resolve their matter before filing a complaint. It also provides potential respondents with resources to help them prevent or address complaints of discrimination within their organization. Inquirers whose issues are not human rights-related are immediately referred to more appropriate organizations for help. The result has allowed the Commission to better focus its resources on complaints that are filed. 

In 2004, the Commission implemented a new process for self-drafting human rights complaints to streamline the complaints process in light of an increasing caseload and limited funding. Under the old process, complainants were required to fill out a 7-page questionnaire in order to file a complaint. Close to 50% of the intake questionnaires sent to complainants were never returned. In the new self-drafting process, individuals are asked to provide the particulars of their allegations directly onto a 4-page complaint form. The new approach speeds up the processing of complaints and gives individuals more control over their complaint. It has also allowed the Commission to redeploy resources to mediation and investigation services.

Mediation and Settlement

In September 1997, the Commission introduced voluntary mediation services as an alternate approach towards resolving a complaint to the satisfaction of both parties and the Commission.

Since its inception, mediation has been an extremely successful aspect of the Commission’s work, with an overall average settlement rate of 73.5% in cases where mediation was attempted. On average, close to 40% of cases closed by the Commission have settled through mediation or through conciliation at a later stage in the complaint process. In a client survey, over 87% stated that they would use mediation again if they had another human rights complaint.

The growing use of mediation, by parties on each side of a complaint, has helped to reduce the number of cases needing to proceed through a more lengthy investigation process. This in turn has enabled the Commission to focus its investigative resources on unsettled cases and older cases, particularly those that had been active files for more than 12 months, and help manage the overall average age of complaints in the system.

An example of a successfully mediated settlement occurred in 2004 with Mattamy Homes with regard to their policies and procedures, which initially did not appropriately consider accessibility changes for homebuyers. Rather than proceed to investigation or referral to the Human Rights Tribunal, the parties decided to resolve the issue in a direct and positive manner.

Investigation and Referral

As Canada’s province with the largest and most diverse population, it is not surprising that the Ontario Human Rights Commission has the highest caseload per capita in the country. Both the size and the age of the caseload continue to be challenges for all human rights commissions. The Commission 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 Ontario Human Rights Code requires that the Commission accept all complaints individuals wish to file, even those where the Commission has informed an individual that the matter does not fall under the Code, such as a dispute between two individuals that is not based on a ground or social area under the Code.

The last ten years have included an emphasis on reducing the size and age of the caseload through effective restructuring of the investigation function of the Commission. In 1996, the Commission committed to achieving a current caseload (one that is 12 months or less), and investigation staff were instrumental in achieving this goal by 2000-2001. A comparison with past caseload statistics shows the consistent progress the Commission has made in this area.

 

Caseload Statistics / History
YEAR	Cases Opened	Cases Closed	Caseload	Tribunal Referrals	Average age of caseload (months)
1995-1996	2 560	1 374	2 899	37	15
1996-1997	1 916	2 058	2 775	28	18.4
1997-1998	1 368	1 460	2 771	30	19.9
1998-1999	1 850	2 218	2 386	92	16.2
1999-2000	1 861	2 305	1 952	92	13
2000-2001	1 775	1 941	1 781	73	10.4
2001-2002	2 438	1 932	2 300	60	11
2002-2003	1 776	1 954	2 137	58	11.5
2003-2004	2 450	2 038	2 549	288	10.8
2004-2005	2 399	2 215	2 733	150	11.2

It is important to note that in years where significant increases have occurred in the number of complaints filed (i.e., in 2001-2002, 2003-2004, and again 2004-2005), the Commission has been able to close the same number of cases (averaging approximately 2,000) and maintain the average age of the caseload below 12 months. This suggests that, within its current funding allocation, without other changes, the Commission has capacity to resolve a maximum of 2,200 to 2,300 cases yearly. In this context, the rising demand on Commission services is having an impact. In the fiscal year 2003-2004, 2,450 new complaints were filed at the Commission, representing a 38% increase over the number of complaints filed in 2002-2003, and a general rise in complaints across most grounds of discrimination. In 2004-2005, the Commission received 2,399 new complaints, a modest 2% decrease over 2003-2004. In the same period, the average age of active cases increased from 10.8 months in 2003-2004 to 11.2 months in 2004-2005. Steps are now being taken to manage this situation.

Litigation

When the Commission refers a complaint to the Human Rights Tribunal of Ontario (HRTO), a separate body from the Commission, its role changes. The Commission becomes a separate party before the Tribunal and has carriage of the complaint representing the public interest during the proceedings. When complaints are referred to the Tribunal or are appealed to higher courts, the resulting decisions can create precedents and directions for human rights law in Ontario and beyond. In the last decade, the Commission has been involved in a number of high profile cases that have added to this important body of case law.

Generally, the decisions are of several types: those that identify whether or not a human rights violation has occurred and what the remedy will be; decisions that significantly advance our understanding of human rights law; and judicial review decisions that determine the scope of the Commission's discretionary powers and rule on how it handles complaints. Public interest settlements, and sometimes Commission initiated complaints, have also been fundamental to the Commission’s litigation history over the past ten years.

This decade has shown remarkable advancement in human rights protections through the Courts and Tribunals. In the past ten years, the approach to human rights litigation has been markedly altered by ground-breaking Supreme Court of Canada decisions and a series of decisions in Ontario have helped to promote and advance human rights in this province.

Tribunal Decisions

A number of key cases have been litigated by the Commission over the past decade before what is now the Human Rights Tribunal of Ontario.

In Brillinger and the Canadian Lesbian and Gay Archives v. Imaging Excellence Inc. and Scott Brockie the complainant, Ray Brillinger, sought printing services from the respondent Imaging Excellence Inc. for business cards and letterhead for the Canadian Lesbian and Gay Archives (the "Archives"). The president of Imaging Excellence, Scott Brockie, denied the service on the basis of his religious belief that homosexuality is contrary to the teachings of the Christian Bible. Brockie argued that his right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms (the "Charter") was a defence to the complaint. The tribunal held, and the Divisional Court affirmed, that Brillinger was denied printing services contrary to section 1 of the Code and rejected the defence under the Charter. The case was significant because it involved a balancing of individual religious rights and individual rights to protection from discrimination in the marketplace.

A case in which the Commission explored the liberal interpretation of several of the Code’s existing prohibited grounds was Kearney v. Bramalea Ltd. et al. The case involved three complainants who alleged the use of minimum income criteria or rent-to-income ratios by several landlords when assessing applications for tenancy. The Tribunal ruled that the landlords' use of such criteria had a disparate impact on individuals based on their sex, race, marital status, family status, citizenship, place of origin, age and the receipt of public assistance. The landlords could not establish a defence as they could not demonstrate that the use of the criteria was reasonable and bona fide or that stopping the use of the criteria would cause undue hardship.

The Tribunal’s July 1996 decision in Naraine v. Ford Motor Co. Ltd. represented a significant step forward for cases involving race discrimination. Mr. Naraine, an East Indian man originally from Guyana, worked for the Ford Motor Company in Windsor for over nine years. He alleged that, during that time, his working environment was poisoned by racist graffiti and by racist verbal comments that were directed at him and, in some instances, directed at other visible minority employees. Mr. Naraine also alleged that he was given inferior work assignments and training, and that he was subject to a higher level of scrutiny and discipline than were other employees. In the latter three years of his employment, Mr. Naraine was subject to progressive discipline, ultimately resulting in his termination for an alleged altercation with a co-worker. The Tribunal held that harassment poisoned the complainant's work environment and was responsible, in part, for the discipline he received at Ford. It also held that Mr. Naraine's ultimate dismissal was improper because Ford had failed to consider the effect the poisoned environment was having on the complainant.

In the labour law context, the decision in Bubb-Clarke v. The Toronto Transit Commission and ATU Local 113 is of great significance in finding liability on both an employer and a labour union for having agreed to a collective agreement that was discriminatory. Bubb-Clarke was a bus driver with the TTC. He was diagnosed as having narcolepsy, and could no longer drive a bus. Under the Collective Agreement, the seniority he had gained as a driver (transportation group) could only be used in the transportation or collectors' groups. That Agreement prevented him from transferring his 10 years of transportation seniority into the maintenance group. During the hearing, the TTC settled with the OHRC, and did not oppose the remedy requested. The Tribunal found that the Collective Agreement itself breached the Code because it prevented the transfer of seniority when an employee moved from one group to another because of disability. It held that barriers to the fullest range of employment opportunities for employees with disabilities should be eliminated. Both Bubb-Clarke, and other similarly situated employees, were granted full seniority for all the time employed by the TTC, transferable to his or her present position or any other position he or she may occupy as a result of the disability.

Also of tremendous significance are the Tribunal's 1998 and 2002 decisions in McKinnon v. Ministry of Correctional Services. The Tribunal, and later the Divisional Court, found that "outrageous discrimination continued unabated for a period of approximately fifteen years" and further found that the Tribunal’s original remedies, set out in its 1998 decision, "appear to have been at least in part, subverted". Accordingly, in 2002, on the basis of the Commission's submissions, the Tribunal set out extremely wide-ranging remedies requiring fundamental change at the Ministry including: training for all managers, including senior management of the Ministry; revision of performance appraisal forms to include responsibility for compliance with the Tribunal's decision for the Deputy Minister, Assistant Deputy Ministers, Regional Directors, Superintendents and Deputy Superintendents of the Ministry, as well as the Superintendent, Deputy Superintendents, and Managers of the Toronto East Detention Centre; external investigation and mediation of all Workplace Discrimination and Harassment Protection policy complaints; and appointment by the Ministry of a competent third party, nominated by the Commission, to develop and oversee the delivery of training programs ordered.

These cases and others^[3] illustrate the strides that the Commission has made over the past ten years in advancing human rights through its litigation function at the tribunal level.

Divisional Court, Court of Appeal & Supreme Court of Canada Decisions

When basic principles of human rights law are challenged, the Commission takes quite seriously its obligation to defend the liberal, purposive interpretations of the Code. A number of cases have made their way through the appellate courts over the last ten years. In Quereshi v. The Board of Education for the City of Toronto,^[4] the Court held that section 5 of the Code prohibits unintentional discrimination. In Velenosi v. Dominion Management et al.,^[5] the Court affirmed the principle that a prohibited ground of discrimination need only be one of the reasons not the only reason, or even a primary reason, for an action to constitute a Code violation. In Entrop v. Imperial Oil, the Court of Appeal held that substance abuse, including alcoholism, is a disability and random drug testing is illegal.^[6]

The Court of Appeal's decision in McKinnon was important because it confirmed the power of the Tribunal to order additional remedies when its first set of remedies have been disregarded or thwarted. The more recent decision of the Divisional Court in Smith v. Mardana Ltd., is of particular significance in advancing cases involving racial discrimination rejecting the myth that a company which hires and promotes racialized persons cannot, for that reason, discriminate. The Court recognized the subtle and indirect ways in which racial discrimination can occur. 

In the Supreme Court of Canada, the Commission was successful in greatly expanding the scope of family status protection and ensuring that a broad, liberal, interpretation of the Code be adopted in B. v. Ontario (Human Rights Commission).^[7] That Court also confirmed that communications between Commission counsel and the Commission were protected by solicitor-client privilege in the recent decision in Pritchard v. Ontario (Human Rights Commission).^[8]

Judicial Review Decisions

Parties to a complaint may apply to the Divisional Court for judicial review of certain Commission decisions. Specifically, they may ask for a review of decisions made under certain sections of the Code: s. 34 (whether or not to deal with a complaint); s. 36 (whether or not to refer the subject matter of a complaint to a human rights tribunal); and s. 37 (reconsideration by the Commission of its original decision under either section s. 34 or s. 36).

These Court rulings help to clarify the scope of the Commission's discretionary powers and handling of complaints. In Gismondi v. Ontario Human Rights Commission,^[9] the Court held that the standard of review to be applied on judicial review of the Commission’s decisions under sections 34, 36, and 37 of the Code is that of “patent unreasonableness”. In coming to this conclusion, it noted the finality of decisions under section 37, the lack of an appeal route from the Commission’s decisions, the Commission’s investigative and screening (as opposed to quasi-judicial) role under sections 34, 36, and 37, and the well-recognized expertise of the Commission in fact-finding and processing complaints in the human rights context.

Key decisions have also determined the scope of damages awarded in human rights cases. For example, in The Shelter Corp. v. OHRC and Kearney et al.,^[10] the court held that the Board of Inquiry "…is entitled to award non-pecuniary intangible damages arising out of the infringement of the Code…it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages." More recently, in Losenno v.Ontario (Human Rights Commission)^[11] the Divisional Court agreed that a rejection of a "reasonable settlement offer" by a complainant was a sufficient basis for not referring the complaint to the Tribunal on the basis that the procedure was not appropriate.

Interventions

During the mid-1990s, the Commission adopted an active approach to intervening in precedent-setting cases, and since then has intervened in a number of key cases at the Supreme Court of Canada. One such landmark case for the Commission was M v. H.^[12] Following the breakdown of their twelve-year relationship, the respondent "M" went to court to obtain an order of support against "H", her former same-sex partner. At the outset of her support motion, "M" argued that the opposite-sex definition of "spouse" in section 29 of the Family Law Act, which precluded an application for support in the context of a lesbian common law relationship, constituted a denial of the equality rights in section 15 of the Charter. The Commission supported the position of "M" and argued that the opposite-sex definition of "spouse" in the Family Law Act was discriminatory and violated principles of equality under section 15 of the Charter. In May 1999, the Supreme Court held that the opposite-sex definition of "spouse" contravened the Charter.

The Commission’s active approach to using interventions to advance human rights can be seen in several other key Supreme Court of Canada cases that have occurred over the past decade including, but not limited to: Gibbs v. Battlefords and Dist. Co-operative Ltd;^[13] Blencoe v. British Columbia (Human Rights Commission);^[14] Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324^[15]; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General)^[16]; Syndicat Northcrest v. Amselem^[17]; and Reference re Same-Sex Marriage.^[18]

Settlements

Additionally, the Commission settles many complaints prior to the complaint ever being sent to the Human Rights Tribunal. A number of key settlements have occurred over the last ten years. For example, in 1999, a settlement was reached in a complaint against Markham-Stouffville Hospital by seven of its nurses who objected to participating in abortion procedures due to their religious convictions. Following an investigation, the Commission decided that the case should go before a human rights tribunal. Before a hearing took place, the parties and the Commission reached a mediated settlement.

In 2002, another key settlement was reached between six complainants with disabilities and the Toronto Transit Commission (TTC). The complaints arose out of the TTC’s decision in 1996, following cuts to its operating budget, to change the eligibility criteria and application process for Wheel-Trans service. Those who applied for Wheel-Trans were required to attend an in-person eligibility interview and if they were found eligible to receive Wheel-Trans service, they were required to pay a one-time $25 fee. In settling the complaint, the TTC ceased charging the $25 fee and agreed to refrain from charging any fees associated with determining eligibility. 

In 2004, a key settlement was reached with the para-transit provider in Hamilton, ensuring faster pick-ups of disabled passengers and greater equalization with the mainstream service. And in 2005, the Commission obtained a very significant settlement with the Toronto Police Services Board following police raids of a bathhouse hosting an event for lesbian patrons. The settlement includes sensitivity training for all police officers on gay and lesbian issues.

Commission Initiated Complaints

While the Commission favours a voluntary and cooperative approach to resolving human rights complaints, under subsection 32(2) of the Ontario Human Rights Code, the Commission can initiate a complaint where the evidence warrants such action. The Commission investigates and then prepares a written report of its findings. If no settlement is reached, the Commission can decide whether to refer the matter to the independent Human Rights Tribunal of Ontario.

Since 1995, the Commission has used this mechanism to enforce the Code in a number of cases.^[19] For example, in 1997, the Commission initiated a complaint against the City of Toronto and the Toronto Firefighters Association^[20] on the basis of several complaints regarding discrimination in recruitment practices for firefighters, particularly with respect to women and racial minorities. More recently, in 2004, the Commission announced that it had initiated a complaint against a restaurant chain with regard to accessibility issues for people with disabilities.

Policy Development

The Commission has the responsibility to promote and advance human rights in both policy and practice. This responsibility gives the Commission opportunities to inform social policy issues through a human rights lens. For this reason, its public policy statements and guidelines are some of the most important documents used by the Commission other than the Code itself. 

In 1996, the Commission undertook a comprehensive review of its entire policy framework in order to ensure that staff and the general public had up-to-date information about the Code and the Commission’s policy decisions. A key feature emerging from that review was the commitment to include reference to legislation and international conventions that are relevant in the context of policies as well as to key human rights tribunal or court decisions. In this way, the Commission is clear about the context in which its policy positions are developed.

In the late1990s, the Commission further refined its approach to policy development through a process of research, public consultation, public reporting, and policy drafting for approval by the Commission. The resulting Commission policies and guidelines are approved public statements that set out the Commission’s interpretation of specific provisions of the Code. The purpose of these policies and guidelines is to help the Commission, members of the public and those involved in human rights work to interpret and understand how the Code is applied.

Consultation

Commission consultations have taken different formats over the years. The Commission has worked to coordinate opportunities for experts and key stakeholders, as well as the general public, to contribute to the work of the Commission and to the advancement of human rights in general. The Commission’s 2003 public inquiry into racial profiling, for example, was an extensive process that took place over several months. It involved public hearings, focus groups, an on-line consultation that resulted in feedback and written submissions from over 400 individuals and organizations relating personal experiences, and expert opinions. Other recent consultations have included the Commission’s consultation on accessible education for students with disabilities and a Policy Dialogue on Racial Discrimination and Racism.

Policy Highlights 1995-2005

The past ten years also mark a landmark decade for public consultation and policy work at the Commission. Throughout this time, all of the Commission’s current policy documents were developed and/or revised. These policies and guidelines are used extensively by the private sector, non-profit and government agencies, and are also recognized nationally and internationally. The Commission has been invited to present its leading edge work at conferences and forums across Canada and abroad. The Government of Ontario formally recognized the Commission’s policy work in 2001-2002 when it awarded an Amethyst Award to Commission staff for Outstanding Achievement by Ontario Public Servants for the development of the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. The following list highlights some of the other key accomplishments of the Policy branch over the last ten years:

• Policy on Creed and the Accommodation of Religious Observances (1996)
• Policy on Discrimination and Harassment because of Sexual Orientation (1999-2000)
• Discussion paper and consultation on gender identity (1998-99); Policy on Discrimination and Harassment because of Gender Identity (2000-2001)
• Policy on Discrimination Because of Pregnancy; updated to include breastfeeding (2000-01)
• Policy and Guidelines on Disability and the Duty to Accommodate (2000-2001)
• Policy on Drug and Alcohol Testing (revised 2000-2001)
• Research paper, Human Rights Commissions and Economic and Social Rights (2001)
• Discussion paper, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims (2001)
• Discussion paper on public transit accessibility (2001); Consultation report (2002)
• Discussion paper and public consultation on age discrimination (2000-2001); consultation report, Time for Action: Advancing Human Rights of Older Ontarians (2001); Policy on Discrimination Against Older Persons Because of Age (2002-2003)
• Public inquiry on racial profiling (2002); consultation report, Paying the Price: The Human Cost of Racial Profiling (2003)
• Consultation paper, Human Rights Issues in Ontario’s Education System (2002); public consultation held across Ontario (2002-2003); consultation report, The Opportunity to Succeed: Achieving Barrier-free Education for Students with Disabilities (2003-2004)
• Restaurant accessibility audit (2002-2003); achieved cooperative commitments from restaurant chains and released report Dining Out Accessibly (2003-2004)
• Policy Dialogue on racial discrimination and racism; proceedings published in Canadian Diversity, a journal of the Association of Canadian Studies (2004-2005)

Policy Review and Advice

Another key area of policy work for the Commission involves reviewing and commenting on new or proposed legislation or other government initiatives for compliance with the Code. Such reviews have often led to the development of Commission positions on pending or actual legislation, and to research, consultation and policy development. For example, in 1996-1997, the Commission undertook a review of 65 different Ontario statutes and wrote to Government about discriminatory spousal provisions regarding same-sex partners. This analysis was helpful to the Commission when it later intervened in the precedent-setting Supreme Court of Canada case, M. v. H., and to the Government when it subsequently sought the Commission’s input after the Court ordered that all legislation in Ontario be amended to remove the discriminatory spousal provisions.

In 1997, the Commission reviewed and opposed certain proposals in the draft Tenant Protection Act, 1997 and was successful in obtaining some protections for tenants against income screening when the legislation was passed in 1998. The Commission has also been active in reviewing and making recommendations with respect to barriers for Ontarians with disabilities. In 1998, the Commission formally responded to the Government’s consultation document that preceded the Ontarians with Disabilities Act (ODA), and following its passage, continued to stress the need for a strengthened Act. The Commission provided a written submission to the Ministry of Citizenship and Immigration’s public consultation on strengthening the Ontarians with Disabilities Act in the spring of 2004 and in early 2005 provided comments on Bill 118, the Accessibility for Ontarians with Disabilities Act.^[21]

In 2002, on a related issue, the Commission made a submission to the Ministry of Municipal Affairs & Housing regarding reform of the barrier-free access requirements in the Ontario Building Code and has commented publicly on Building Code issues several times since, such as in its 2004 report on Dining Out Accessibly: An Accessibility Audit of Select Restaurant Chains in Ontario.

Policy and Litigation

The Commission’s litigation function has been instrumental in reinforcing the role of the Commission’s policy work in the advancement of human rights in Ontario. The Human Rights Tribunal decision in Quesnel v. London Educational Health Centre,^[22] applied the United States Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (4th Cir. 1971) to conclude that Commission policy statements should be given “great deference” if they are consistent with Code values and formed in a way that is consistent with the legislative history of the Code itself.

Additionally, decisions rendered can have the effect of putting into practice key human rights concepts. More recently, the decision of the Human Rights Tribunal in Baylis-Flannery v. Walter DeWilde c.o.b. as Tri Community Physiotherapy (No. 2),^[23] represents the first time the Tribunal explicitly recognized and applied the concept of intersectionality with respect to both liability and remedy. This was particularly important for the Commission given the release of its discussion paper, An Intersectional Approach to Discrimination Addressing Multiple Grounds in Human Rights Claims (2001) and its subsequent application of the concept in its work.

Public Education

Throughout the past decade, the Commission has witnessed a steady increase in demand for its public education services. In 1996-97, the Commission reported that it had received more than 1,200 requests for advice, information, and guidance on the Code, double the number from the previous year. The Commission responded by renewing its commitment to public education and developing a strengthened public education strategy in the late 1990s. Two public education strategies have occurred since with continuous and increasing successes, as illustrated below in the Commission’s public education statistics:

Number of Public Education Events Conducted and Persons Reached
Year	94-95	95-96	96-97	97-98	98-99	99-00	00-01	01-02	02-03	03-04	04-05
Events	6	38	39	75	81	108	103	104	80	105	96
Persons	311	1,384	1,715	3,497	4,638	8,600	9,300	9,000	6,200	9,000	7,500

These statistics indicate that the strategies implemented since 1997 have had a dramatic effect in bolstering the Commission’s capacity to reach out and provide human rights education throughout Ontario and beyond. To understand the effectiveness of its work, the Commission measures the quality of its presentations with participant surveys and has consistently maintained an 80% or more satisfaction rate among participants for all public education activities.

The Commission’s public education work is diverse and aims to deliver human rights education in various ways. One of its most successful ventures was the release in 1996 of Teaching Human Rights in Ontario followed by a revised edition in 2001. This educational resource, aimed primarily at Ontario high school students, provides information on the provisions of the Ontario Human Rights Code and the work of the Commission.

During the past ten years, the Commission has also launched a number of key public awareness campaigns that have garnered widespread attention to the human rights issues at hand. For example, in 1999 and 2000 following the Theresa Vince Inquiry, the Commission launched two consecutive province-wide public awareness campaigns against sexual harassment featuring posters on public transit vehicles and in LCBO outlets throughout Ontario.

In 2000-2001, following a key human rights case regarding breastfeeding, the Commission partnered with the Infant Feeding Action Coalition (INFACT) Canada and Toronto Public Health to promote children’s health and breastfeeding as human rights issues.

In the summer of 2003 as a part of the Commission’s work on age discrimination, the Commission led a province-wide campaign in partnership with CARP (Canada’s Association for the 50-plus) and Shoppers Drug Mart, to counteract myths and stereotypes about older Ontarians.

Most recently, in December 2004, the Commission implemented a province-wide newspaper ad campaign to mark the one-year anniversary of the Commission’s inquiry report on racial profiling.

In its efforts to increase public awareness about human rights and the Commission’s services across different communities, the Commission has successfully partnered with a number of agencies over the past ten years to deliver information in innovative ways. For example, in partnership with the Réseau des femmes du sud de l’Ontario, the Commission developed a brochure on preventing female genital mutilation (FGM) in English, French, Arabic, Somalian, Swahili and Amharic. The Commission has since partnered with COSTI to develop and distribute multi-lingual guides on sexual and racial harassment, non-discriminatory hiring, how to file a complaint and other Commission services. Brochures dealing with these issues are available in the following languages: Chinese, Punjabi, Somali, Spanish, Tagalog, Urdu, Vietnamese, French and English. In 2003, in partnership with HRPAO (Human Resources Professionals Association of Ontario), the Commission launched a revised and expanded version of Human Rights at Work, a plain language guide for employers. Through such diverse partnerships, the Commission has been successful in expanding its capacity to inform the public about human rights in Ontario.

In recent years, the Commission has also coordinated the development and evaluation of its Aboriginal Human Rights Program in partnership with GREAT (Grand River Employment and Training), the Ontario Federation of Indian Friendship Centres and the Native Canadian Centre of Toronto (NCCT) to increase awareness of the Code among Aboriginal communities and enhance their access to the Commission’s services. It included research on best practices for public education and awareness in Aboriginal communities, a needs assessment, the establishment of formal partnerships with Aboriginal organizations, the hiring of an Aboriginal human rights liaison officer for a period of two years, training workshops for Commission staff and community agencies, a pilot community-based awareness campaign, the development of quality service standards and a program evaluation of the project. The evaluation identified a need to reach out more broadly to agencies serving Aboriginal communities. This led the Commission to begin partnering with the Union of Ontario Indians (UOI) to develop and distribute a brochure about the Code and the Commission to Aboriginal communities in several Aboriginal languages, planned for release later in 2005. 

National and International Liaison

The Commission cooperates at both the national and international levels in the promotion and advancement of human rights. The Commission is a member of the Canadian Association of Statutory Human Rights Agencies (CASHRA) and the International Association of Official Human Rights Agencies (IAOHRA). Since 1996-97, members of the Commission's senior management have held the positions of President, Secretary and Treasurer for CASHRA. In 1997, the Commission presided over CASHRA, taking responsibility for organizing and hosting the annual conference. In 1999-2000, the Commission worked with CASHRA members to develop a human rights poster "Human Rights are Everyone's Business/Les Droits de la personne, c'est l'affaire de tout le monde". And in 2002, the Commission prepared a submission, on behalf of CASHRA, to the Government of British Columbia in response to that province's introduction of legislation to abolish its human rights commission. Commission staff are also active in CASHRA’s policy, education and legal sub-committees.

The international side of the Commission’s work occurs through contributions it makes to provincial or federal reports with regard to Canada’s obligations under international human rights conventions. For example, in 1998-99, the Commission provided comment in response to questions regarding Canada’s Fourth report from the Committee on Economic, Social and Cultural Rights. In 2002-2003, the Commission provided information to the Ministry of Labour in preparation of Ontario’s comment for Canada's report responding to questions from the International Labour Organization regarding measures taken to prevent discrimination in employment and to promote employment of women, older workers, people with disabilities, and other categories of people subject to discrimination. In 2003-2004, the Commission commented on the U.N. Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.^[24]

Finally, the Commission has, over the past ten years, worked to support its national and international partners in human rights advancement by hosting delegations and visitors from across Canada and abroad. These included the Canadian Human Rights Review Panel, the United Nations High Commission for Human Rights as well as representatives from human rights commissions and related agencies and/or groups from the following countries: Sri Lanka; India; Japan; Chile; South Africa; Nigeria; Thailand; China; Malawi; Norway; Uganda; Northern Ireland; Ethiopia; New Zealand; Ghana; Vietnam; Greece; Burma; the Philippines; Norway; Vietnam; Korea; Albania, and Bermuda.

What We’ve Learned

Maximizing Resources and Mandate

The past decade has seen significant challenge and change in the operations of the Ontario Human Rights Commission. These 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 Commission’s varied services.

In the face of an increasing number of complaints being filed, and within a relatively flat funding allocation during this period, the Commission has 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 Commission; centralization of the Commission’s Inquiries and Intake services; cost-saving tele-work arrangements for Commission staff working in different regions of the province; 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.

Endorsed by Canada in 1993, the United Nations’ Paris Principles on the status of domestic human rights commissions and related guidelines 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 to clients; 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 effectiveness. These have all been central in the Ontario Human Rights Commission’s restructuring initiatives.

At the same time, the pursuit of operational efficiency in the exercise of 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. Moreover, the Commission’s compliance function is strengthened by the complementary roles the Commission plays through its policy development, legal services and public education functions. Policies adopted by the Commission are integrated into the complaints process to ensure a consistent approach. The Commission's policies have been critically acclaimed across Canada, as well as beyond Canada's borders. These policies, together with case law, form the submissions of Commission counsel at the Human Rights Tribunal of Ontario and before the courts, effectively promoting human rights, and result in sector-wide remedies. The Commission’s litigation function has also included advancing human rights through the Court system, on important appeals or interventions in the appellate courts. And the Commission’s regular exercise of its ability to speak out on human rights matters and deliver public education is enhanced by its compliance role.

Striking a balance between its compliance, promotion and advancement functions, with limited resources, and all the while remaining relevant and accountable to the public – this has been both the Ontario Human Rights Commission’s greatest challenge and greatest achievement over the past ten years.

Relevance of Human Rights Commissions Today

The Ontario Human Rights Commission’s experience in the promotion and protection of human rights is a testament to the fact that human rights commissions in Canada, and abroad, have a very relevant role to play in today’s society, one that is important and distinct from other government institutions and non-government organizations.

Throughout the past decade, several studies have echoed this sentiment. 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.^[25]

In December 2001, the Standing Senate Committee on Human Rights gave a similar message. They acknowledged 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.^[26]

Furthermore, recent court decisions, including McKenzie Forest Products Inc. v. Tilberg^[27] and British Columbia (Human Rights Comm.) v. British Columbia (Human Rights Tribunal) and Shannon^[28] have echoed the importance of this role.

The Canadian Association of Statutory Human Rights Agencies (CASHRA) has also publicly commented, in the context of the UN Paris Principles, on the importance of human rights commissions with broad mandates:^[29]

…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.^[30] 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.

As well, international bodies have recognized the significance of human rights in Canada and the institutions that enhance and promote them. In its August 2002 review of Canada’s 13th and 14th Reports with respect to the International Convention on the Elimination of all Forms of Racial Discrimination, the UN Committee on the Elimination of Racial Discrimination acknowledged the continued commitment to human rights throughout Canada. In its Concluding Observations, the UN Committee noted:

“the strong and steadfast commitment to human rights manifested by Canada through, in particular, the existence of numerous federal, provincial and territorial instruments and institutions aimed at enhancing human rights, such as the Canadian Charter on Human Rights and Freedoms, the Canadian Human Rights Act, and the provincial and territorial Human Rights Acts” (emphasis added).^[31]

Other recent studies and reports examining the role of human rights commissions in Canada include: The Praxis Research Report (2001); The Canadian Centre for Policy Alternatives, “Rolling Back Human Rights in BC”, (Shelagh Day, 2002); Nova Scotia Human Rights Commission, “Moving Forward with Human Rights in Nova Scotia: The Path for the Future” (November 2002).

Together, these reports reiterate that there is an important role for commissions to have responsibility for ensuring compliance, promoting and advancing rights. Commissions are the foundation of a formidable human rights system across Canada, one that is lauded, envied and modeled around the world. As Canada’s first commission, established in 1961, the Ontario Human Rights Commission has been a significant part of this history and continues to be recognized today as a leader among commissions in Canada and abroad.

Role of the Commission Going Forward

The Ontario Human Rights Commission believes it is important that government and non-government organizations, as well as individuals with an interest in Ontario’s human rights system, be resolved to the goal of ensuring this system be made stronger and more effective. 

For its part, the Commission is committed to this goal and understands the importance of continuing to grow and evolve as an institution. It has proven over the years that it can be creative in finding ways to improve on its processes and services without compromising the delivery of its broad mandate. At the same time, the Commission has stated that without procedural changes to the Code or additional funding, it is reaching a limit in its ability to maximize resources and effectively address an increasing demand on its services.

However, in striving to understand what works well and what changes or improvements could be made, it should be noted that Ontario’s current human rights system has many strengths that are consistent with the United Nation’s Paris Principles relating to the status of domestic human rights commissions. It is the Commission’s strong belief and experience that certain key principles should continue to be at the core of Ontario’s human rights system: the need to have an independent human rights body with adequate resources and a broad mandate to enforce human rights, undertake research and policy development, speak out on human rights matters, engage in cooperative initiatives, and deliver public education. Other important features and considerations include: continuing a gate-keeping function to ensure the system is not overwhelmed; ensuring continued access to legal assistance for vulnerable complainants; creating more access to alternative dispute resolution; ensuring the hearing process not be overly judicialized and remains financially accessible; and, ensuring sector-wide public interest remedies are being pursued.

These principles have been the foundation of the Commission since its inception and have guided the evolution of its processes and services over the past ten years. And, they continue to be central to its work as the Commission’s 2004-2005 activities demonstrate. 

Appendix – Part I

OHRC Comparative Indicators 1995-2005

	2004-05	2004-04	2002-03	2001-02	2000-01	1999-00	1998-99	1997-98	1996-97	1995-96
Public Contacts
Written Inquiries	1,648	2,275	2,324	n/a	n/a	n/a	n/a	n/a	n/a	n/a
Visitors	886	843	902	n/a	n/a	n/a	n/a	n/a	n/a	n/a
Calls Received	60,698	67,216	69,817	64,154	65,207	60,977	n/a	n/a	n/a	n/a
Calls Responded To	46,429	42,650	46,127	48,732	52,848	52,030	40,112	32,579	n/a	n/a
Unique Visits to www.ohrc.on.ca	523,878	461,365	330,131	233,090	158,971	n/a	n/a	n/a	n/a	n/a
New Complaints Filed	2,399	2,450	1,776	2,438	1,775	1,861	1,850	1,368	1,916	2,560
Voluntary Mediation Settlement Rate	73%	71%	73%	74%	73%	74%	69%	81%	n/a	n/a
Complaints Closed by Disposition
Dismissed	290	265	311	284	298	462	403	169	176	248
Not deal with (s. 34)	196	245	185	218	351	281	180	304	343	331
Referred to Human Rights Tribunal	150	286	58	60	73	92	92	30	28	37
Settled	998	778	909	851	727	897	867	379	314	359
Withdrawn/Resolved	581	464	491	519	492	573	676	578	499	399
Total Cases Closed	2,215	2,038	1,954	1,932	1,941	2, 305	2,218	1,460	1,260	1,374
Year-End Active Caseload	2,733	2,549	2,137	2,300	1,781	1,952	2,386	2,754	2,800	2,899
Average Age of Active Caseload (months)	11.2	10.8	11.5	11	10.4	13	16.2	19.9	18.4	15
Public Education
Events	96	105	80	104	103	108	81	75	39	38
People Reached	7,500	9,000	6,200	9,000	9,300	8,600	4,638	3,487	1,715	1,384
International Visiting Delegates	12	12	3	6	7	6	7	n/a	n/a	n/a
OHRC Budget (millions)	$12.519	$12.198	$12.135	$11.873	$11.650	$11.658	$11.919	$12.144	$10.818	$11.306

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