Preliminary comments on proposed reforms to Ontario's Human Rights System

Background

On February 20th, 2006, Attorney General Michael Bryant announced proposals to reform the human rights system of Ontario.  The proposals call for the Ontario Human Rights Commission (the “Commission”) to focus on “proactive measures, such as public education, promotion and public advocacy, as well as research and monitoring to address systemic discrimination in Ontario. Under the proposed changes, the Commission would “maintain the ability to bring a complaint on its own behalf before the tribunal or to intervene in other complaints”, and would become home to a new racial diversity secretariat. 

In addition, the proposals call for the institution of direct access to the Human Rights Tribunal of Ontario (“Tribunal”) to replace the current system in which the Commission screens complaints through intake, mediation, and investigation activity prior to referring them to the Tribunal for decision. A third “branch” of the system has also been proposed to deal with the provision of legal support, but this has yet to be defined.

Requirements for the new system

Any new system must remain consistent with the requirements of the Paris Principles that have been endorsed by Canada. Supporting the Principles are guidelines developed by the United Nations Centre for Human Rights^[1], which identify seven relevant “effectiveness factors” that provide standards against which any reform to Ontario’s human rights system will be measured.

1. Independence
2. Defined jurisdiction
3. Cooperation
4. Adequate Power
5. Accessibility
6. Operational Efficiency
7. Accountability

Any changes to the existing human rights system need to ensure that each identified factor and their sum are maintained.

1. Independence

There are multiple ways in which the required degree of independence for a human rights commission may be established. International guidelines clearly indicate the preference requiring the Commission to report to the Legislature to avoid the perception of financial and administrative control by government over the activities of a human rights commission.

These guidelines indicate that independence requires that appointees to human rights institutions are able both individually and collectively to act independently and impartially.  To achieve this goal, the new legislation should include transparent methods of appointment and dismissal, and sufficient representation of expertise, diversity, and pluralism. 

This is important because many human rights concerns involve the government and many human rights complaints have been filed against government. As a result, a human rights institution that is administered by a ministry of government is placed in the awkward and potentially compromising position of investigating a ministry and government that it directly or indirectly reports to, and receives funding from.

2. Defined Jurisdiction

The governing legislation must clearly meet minimum international obligations and identify specific functions to fulfill established objectives and priorities. 

The legislatively defined jurisdiction for a human rights commission, as opposed to a Tribunal include, as a minimum, the power to:

• Review legislation and administrative decisions;
• Examine all forms and levels of alleged violations of human rights;
• Prepare reports;
• Express opinions on the position or reaction of government to human rights evaluations;
• Conduct research, monitoring, auditing, education, and publicity programs;
• Promote and ensure the harmonization of legislation, regulations and practices with international human rights instruments; and
• Protect and promote the public interest.

The proposed reforms indicate that the Commission will focus on “proactive measures, such as public education, promotion and public advocacy, as well as research and monitoring to address systemic discrimination in Ontario”.  Although this description indicates a significant overlap of the required functions identified above, it is important that the new legislation clearly sets out the Commission’s responsibilities as including all of the functions identified above. In addition, the legislation should clearly stipulate that the Commission can file complaints that have potential for a systemic impact or which have significant public interest aspects (?)on its own, and choose the complaints in which it wishes to intervene that are before the Tribunal.

One of the strengths of the current system is that protecting and promoting the public interest and compliance are integrated. The Commission is a party to every complaint filed and is able to advocate for the public interest throughout each phase of the process. Thus, the resolution of every complaint can incorporate public interest terms and systemic benefits. Almost all settlements and tribunal decisions in the current system include public interest remedies ranging up to and including major policy developments and systemic change initiatives.

The new system needs to retain promotion of the public interest as a major feature.  One way of doing this is to require the promotion of the public interest in the legislative mandate of the Tribunal, throughout the complaint process and in the rendering of decisions. The Commission’s ability to intervene also strengthens the public interest element.

3. Cooperation

The coordination between advancement and compliance functions creates a synergy that needs to be preserved in the new system. For example, compliance functions such as intake, resolution, examination, and adjudication of human rights complaints benefit from policy input and expertise. As well, litigation and adjudication of individual complaints benefit from policy formulation and are enabled by it to foster and promote case law development aimed at advancement. In turn, policy development and advancement goals and strategies build on enforcement and legal perspectives. 

Many cases that, at first, did not appear to be human rights matters covered by the Code proceeded through the enforcement process based on advancement-oriented thinking. For example, the recent inquiry and policy work on racial discrimination has led to cases of racial profiling and systemic discrimination being advanced that might previously have been dismissed.

The proposed changes call for the Commission to continue to have the authority to file complaints and intervene in complaints filed with the Tribunal.  These tools  are needed to integrate the Commission’s advancement role with the compliance role fulfilled by the Tribunal.  In addition, a number of elements should be included for the entire system to be adequately coordinated.

• The Commission needs to be adequately appraised of the nature of complaints coming into the system.  The legislation needs to ensure effective application by the Tribunal of human rights policy developed by the Commission.
• The entire human rights system needs to be effectively coordinated. Currently, human rights matters of various types are dealt with in labour grievance processes and through the activity of various administrative bodies such as the Workplace Safety and Insurance Board, the Special Education Tribunal, the Housing Tribunal, and many others.  These adjudicative bodies need to effectively apply human rights policy and have the power to award remedies similar to those available through the Tribunal. The right to intervene in these bodies should also be available to the Commission.

4. Adequate Power

The Commission welcomes the proposal to expand work on systemic discrimination and to receive enhanced funding for this purpose. The proposals also indicate that the Commission will have the ability to intervene in complaints before the Tribunal and independently file complaints.  To adequately fulfill these responsibilities, the Commission must be empowered with at a minimum, the equivalent of the current investigation powers in the Code. Advancing systemic change and filing of systemic human rights complaints, of the type the Commission is likely to file, require considerable preparation and investigation. 

Ensuring or monitoring compliance with human rights settlements and Tribunal decisions also needs to be incorporated into the system. Responsibility and adequate power for this function should be established in legislation.

5. Accessibility

The Attorney General confirmed at the press conference on Monday, February 20^th, that legal support will be provided to assist all individuals needing support through the new human rights complaint system. 

Maintaining adequate access to human rights mechanisms will be a major challenge. Concerns include access for people who are impoverished, working poor, marginalized, disabled, hard to reach, and distant. Clear and effective mechanisms will need to be developed and resourced to provide for the unique needs of each of these populations.  It is most vital in this regard to provide the following:

• adequately funded legal support services with human rights expertise;
• support necessary to adequately prepare a case for the Tribunal;
• adequate promotion of the system to create awareness of avenues for recourse;
• a range of linguistic, cultural, and disability support services throughout the human rights complaint process;
• adequate access to Tribunal services for those living distant from its location;
• a complaint processing service that  facilitates accessibility,  recognizes inclusive design principles relating to all grounds of the Code. The Tribunal must recognize the barriers to the filing of complaints its processes may impose.  For example, lack of confidentiality will impose barriers on some people filing complaints under the ground of sexual harassment or sexual orientation.   Also, some Aboriginal and racialized communities may be dissuaded from using judicial processes that are exclusively adversarial and do not recognize their cultural sensitivities.

6. Operational Efficiency

The Government intends to design and implement a case processing system that is truly efficient and effective and builds on the goals and principles of administrative agency design. Key elements must include:

1. Timely resolution of complaints;
2. Simplicity and fairness of procedures that deemphasizes legalistic approaches;
3. Flexibility such that simple cases can be handled in an expedited fashion;
4. Being heard such that the “human” element of the human rights system emerges as a primary consideration, and complainants perceive that their issues have been “heard” not “processed”.

7.  Accountability

The new system must have clear lines of accountability for all its parts and require all agencies to publicly report on their activities. This is important given that considerable coordination will be necessary among all the components of the new system.

Moving Forward on the advancement function

The Commission has rich experience in activities that promote the advancement of and a culture of human rights.  With the broadest goals of public education and systemic interventions, these initiatives have included public education and communication activity, policy development, and a variety of methods to examine and respond to human rights issues and concerns emerging in society.

The Commission welcomes active involvement in defining the enhancements to its advancement functions. Building on the options identified above, it will work with others to find new innovative ways of advancing human rights.  In a new human rights system, the language of the legislation should provide the Commission with the greatest flexibility

An enhanced responsibility to prevent and respond to systemic discrimination would also require greater resources.  In particular, adequate resources for the tasks of monitoring, auditing, investigation, and litigation as it is only with the knowledge of responsibilities and consequences that systemic change can be fostered among reluctant institutions and groups.