Human Rights Reform in Ontario
Province Promises Direct Access Model Will Speed Up Justice
Feb 17, 2009
After a turbulent period of reforms, the new Ontario human rights system is in place. In the past, potential complainants would send a complaint to the Human Rights Commission, which would review the complaint for basic jurisdiction, and then follow up by serving the respondent or respondents in the matter. After the respondent sent in their response, the complainant would receive a copy of it and be given an opportunity to reply in kind.
Afterwards, Commission staff would analyze the complaint for jurisdiction, merit, as well as chances of success at the Human Rights Tribunal of Ontario, formerly called the Board of Inquiry. As staff analyzed these issues, both parties were given an opportunity to review their analysis and provide comment. Staff may also attempt to mediate the complaint with the consent of the parties involved. Many complaints got resolved at this stage and proceed no further. At a later point, if a complaint was considered to have merit, its issues would be investigated. At some point, which was getting further and further into a distant future, the Commission would then review the complaint for referral to the Human Rights Tribunal. Less than 4% of complaints ever made it to the Tribunal.
However, at the Tribunal under the old system, the complainant rarely had their own lawyer. The Commission would hire counsel and represent the action before the Board, sort of like a prosecutor would when it brings the “people's” interests before a court in prosecuting a crime.
In its infinite wisdom, the provincial Liberals developed a model of “direct access” for the human rights system. Under the new model, instead of having just the Commission and the Human Rights Tribunal, formerly the Board of Inquiry, there is now a trio of bodies: the Human Rights Commission (with brand new functions), the Human Rights Tribunal and the Legal Support Centre. The new model envisions complainants filing all complaints directly with the Human Rights Tribunal of Ontario, which has now developed new procedures to deal with complaints. Each party can represent themselves or retain counsel. Complainants and prospective complainants now have access to the Legal Support Centre, where a group of human rights lawyers and licensed paralegals that specialize in human rights matters can provide services, ranging from providing information and advice to full representation – or parties can hire and pay for their own legal representation.
At the present time, the Tribunal is dealing with three groups of complaints. The first group is Commission-referred complaints. These are complaints that the Human Rights Commission has before December 31st, 2008, decided to refer to it. The second group is transitional complaints. This group of complaints is further subdivided into two categories. Transitional complaints are those that were already filed at the Human Rights Commission before June 30th, 2008, but have not yet been referred to the Tribunal, dismissed, settled or withdrawn by the complainant. Transitional complaints of a straight forward nature with some documentation, but perhaps only one or two witnesses, were to be re-served by the complainant (or their counsel) on the respondent and then filed/issued with the Human Rights Tribunal of Ontario, on or before December 31st, 2008. Transitional complaints of a more complex nature (or “Option 2”) were to be re-served on the respondent(s) and then filed with the Tribunal between January 1 – June 30th, 2009. The third type of complaints will be all other complaints that are filed initially after June 30th, 2008, which are “new” complaints and fall completely under the jurisdiction of the new Tribunal’s rules.
While it is the Tribunal’s job to process and eventually hear each complaint, the Commission’s new job is to conduct research, provide public education, as well as act as an intervener in some cases before the Tribunal, where there is significant public interest at stake. Other third parties may also apply to intervene as third parties as well, such as interest groups, trade unions and disability organizations. The original literature promoting this new “direct access” model promised all cases will be filed and heard within a year from their inception at the Tribunal. At this point, it is too early to assess whether or not the new “direct access” model is going to represent any improvement over the old model.
The old model featuring the Ontario Human Rights Commission as the gatekeeper, investigator and prosecutor has often taken between two to five years to complete the processing of a complaint, which has led to many criticisms of this approach. Under the new model, we have to wait to see if the Tribunal is not going to be just another stopping point for thousands of complaints to go, whereby the wheels of justice will continue to move slowly – or become a true improvement over the old system.
