Report of the Ontario Human
Rights Review 2012
Initial thoughts from the OHRC’s
Executive Director
November 9, 2012
Overall Context for the Report
• Statutory review, with mandate limited to the “human
rights system”
• The mandate required the assessment to be in a partial
vacuum, yet the Report also notes:
– broader context of challenging economy,
– competing interests with other social programs (e.g. Legal
Aid Ontario)
– Government downsizing
– The need to set priorities when there are limited funds
available
• The inability of government to be all things to all
people
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The Report got it right in these areas…
• More coordination is needed among OHRC, HRLSC, HRTO. While
we have informal meetings regularly, formal ones would benefit the
system
• Roles and mandates should be clearly stated and followed
• Human rights education for the public is crucial
• Early mediations will successfully resolve more cases
• Public interest remedies should be considered in all HRTO cases
• Limit overlap of functions, e.g. litigation role at the HRTO or other
courts & tribunals
• The OHRC & the HRLSC should have a coordinated plan to address
issues raised by Aboriginal Peoples re their rights under the Code
• The need for partnerships
• The OHRC’s mandate was changed by Bill 107 so it would tackle
issues of broad public interest and effect systemic change. It was to
limit its role in individual cases unless these elements existed
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How to look at the Human Rights System
• Is it a closed environment of just the 3 organizations? Or, as the report suggests,
should we look at it more broadly?
• How are priorities best assessed by the OHRC?
– By being proactive, rather than reactive, where possible (e.g. housing cases)
– By identifying those who are not yet accessing the system, including:
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those with mental health issues
those in correctional institutions
students and educators,
those who are not aware of their rights at all
new Canadians
– By examining the impact of choosing systemic cases: e.g. Moore (education),
N.S. (niqab), and Whatcott at the SCC; Phipps and Pieters at the Court of
Appeal, on racial profiling
– By assessing the best way to reach the most Ontarians (e.g. the OHRC has
looked at “where the public sector meets the public”, so the government can
lead by example.) This covers
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All school boards and the Ministry of Education
The Chiefs of Police of Ontario and specific police services
Ministry of Correctional Services & Community Safety and Ministry of Government Services
Workplace safety & Insurance Board (Code compliant accommodations on return to work)
Municipalities (Canadian Coalition of Municipalities Against Racism & Discrimination)
Coordination across Commissions in Canada (CASHRA)
– By reviewing the cases at the HRTO: how to identify “systemic issues”?
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How to look at the Human Rights System, cont’d.
• Impact of Tranchemontagne – that all tribunals must apply Code
and Charter rights…so where should the OHRC focus its attention?
• How do we distinguish between “wants” and “needs” as we decide
which issues to address?
• Do we add more lawyers…or simplify the process so they are not
needed as often?
• Should self-representation be encouraged, as at some other
tribunals?
• How do we decide the right amount of litigation vs. education vs.
systemic change projects? Pre Bill 107, litigation was not sufficient
to change human rights in Ontario. That is why the OHRC was given
its new role.
• OHRC is taking on challenging cases: (e.g. Whatcott, Moore, N.S.,
Phipps, Trozzi, Special Diet, autism, McKinnon, AG Canada, Dream
Team, Lynwood-Charleton group home)
• HRSLC has specified role at the HRTO for individual cases
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How to Look at the OHRC
• The Code requires Commissioners with expertise in human rights, from
across the province
• Priorities are set by the Commissioners and are clearly stated in an annual
business plan: race, disabilities, Aboriginal issues, etc., with initiatives
across all branches of the OHRC
• Able to go to any court or tribunal in Ontario. Currently at:
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Supreme Court of Canada
Federal Court of Appeal
Court of Appeal
Divisional Court
Workplace Safety & Insurance Tribunal (WSIAT)
Ontario Municipal Board (OMB)
Human Rights Tribunal of Ontario (HRTO
Public Interest Inquiries: North Bay, Waterloo (re housing and zoning issues)
• 50 staff, with 5 lawyers
• $5.6M annually, with all but $200,000 going to fixed costs and salaries
• The organizational chart cannot be amended without Ministry of the
Attorney General cooperation
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OHRC litigation at the HRTO
• Currently when:
– HRTO Applications or Decisions show an issue: e.g.
against OHRC policy (Farris, Trozzi, union blog case)
– Asked by the HRTO
– Asked by the HRLSC or other groups or people, case is
systemic and we would add something they cannot
• The OHRC has not focused on litigation at the HRTO:
the system was set up to have the HRTO and the
HRLSC cover that area for the most part.
• The Commissioners direct us to find systemic
litigation which will further our work in the priority
areas set by them – e.g. anti-racism & racial profiling
cases, housing, disability issues
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Respondents
• Respondents have always been a priority group for the
OHRC, as “employment” received the highest number of
complaints
• Pre-107, legal supports were not provided.
• Issue specific advice is given through publications,
guidelines and policies in areas identified as being
challenging for employers:
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Human Rights@ Work
eLearning: Human Rights 101, in 13 languages
When/how to do criminal record checks
How to address sexual harassment in the workplace
Human Rights Organizational Change
How to address competing rights claims
• Should more advice be given? Is this a “need” or a
“want”? As the Report states, Bill 107 did not add to
what respondents were already receiving
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Respondents, continued
• The Report’s statistics show approx. 85% have counsel
• Inserting the OHRC to provide advice would mean stopping some of
our other work, as no new resources are anticipated in the current
economy
• If OHRC is to increase the number of interventions and applications
at the HRTO as suggested, it could be as conflicted as the HRLSC
would be if it began providing advice to respondents
• Are there other options to inserting the OHRC as a specific resource
for respondents?:
– Simplify HRTO system and increase mediation (as the Report suggests)
so fewer applicants & respondents need assistance
– Status quo, with OHRC providing policies, guidelines, educational
materials and events (e.g. Human Rights@ Work) and e-learning,
working with Chambers of Commerce, Human Resources Professionals
Association of Ontario (HRPAO)
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Costs
• Civil cases (allow costs)
• Statutory protections, e.g. landlord & tenant:
allow minimal costs
• Statutory obligations (human rights, employment
standards: minimums that must be met): no
costs
• Bill 107: Costs are only allowed if the HRTO sets a
Rule, pursuant to Statutory Powers Procedures
Act (SPPA) for frivolous & vexatious cases.
• Legislators clearly turned their minds to this in
Bill 107. Does it need to be reopened?
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