Adjudicating Human Rights in the Workplace
Queen`s University Faculty of Law
Patrick Case, Chair, Human Rights Legal Support Centre
November 9, 2012
HRLSC in the Pinto Report:
Snapshot of Service Numbers for 2011/12
• 18,968 individuals were assisted by the HRLSC in 2011/12. 25,276 inquiries.
• Of these, 12,562 were new individuals who sought and received advice in
relation to a potential Code violation.
• 2,399 new individuals received in-depth services from HRLSC lawyer in 2011/12.
• Report notes that this compares favourably to # of new applications filed at
HRTO in 2011/12: 2,740.
• Provided representation in almost 600 applications proceeding before HRTO, for
at least one stage of the proceeding: filing, mediation or hearing.
• Settled 85% of applications where represented at mediation.
• Retained for hearing in 219 applications; settled 102 at pre-hearing stage;
attended approximately 90 hearings, settling another 1/3 through
mediation/adjudication at beginning of hearing.
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HRLSC in the Pinto Report:
Range of Services
The Report recognizes range of services provided by HRLSC:
 Early intervention with a potential respondent to resolve a dispute or
settling a claim before filing an application
 Assistance in completing the application process
 Representation at summary hearings to prevent early dismissal
 Assistance in self-representing at mediation or hearing
 Representation at mediation or hearing
 Representation at reconsideration or judicial review
 Enforcement of HRTO Orders
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HRLSC in the Pinto Report:
Systemic Discrimination & Public Interest Remedies
The Report notes that the HRLSC has a good track record in achieving public interest
remedies at hearings and mediations.
HRLSC is working with and representing community-based advocacy organizations,
including groups representing migrant farm workers, injured workers, Aboriginal
communities and psychiatric survivors.
HRLSC is representing in a number of cases alleging racial profiling or systemic barriers
tied to race or place of origin, including cases against the police and school boards.
Notable public interest remedies in HRLSC settlements that are not subject to gag clauses:
•
A G20 protestor who was roughed up by the Toronto Police - Negotiated compensation and an
agreement that allows applicant to continue to speak publicly about his mistreatment by police.
•
A transgendered student who won a new set of policies at Toronto District School Board –The
settlement covers privacy issues, student records, field trips and washroom facilities, as well as
an agreement on extensive staff training.
•
Prison inmates with disabilities without access to their own assistive devices – Settlement with
Ministry of Correctional Services included staff training and a complaints procedure.
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HRLSC in the Pinto Report:
Key Challenge
The Report acknowledges that:
• Demand for HRLSC services outstrips resources
• Challenging to find the right balance between providing legal assistance
to applicants and providing full representation
• HRLSC use of service criteria is consistent with recommendations of
Cornish and LaForest reports
• It is legitimate to decline to provide representation where a claim lacks
merit or where an applicant has significant financial resources
• The HRTO process is designed to be accessible. Unrepresented applicants
proceed before Tribunal and many win.
But the Report concludes that:
• Number of self-represented applicants is too high.
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HRLSC in the Pinto Report:
Expanding our Service Capacity
The Report recognizes what the HRLSC has done to expand its services:
 Placement of HRLSC lawyers in legal clinic offices in Ottawa, Thunder
Bay, Sault Ste. Marie/Sudbury, Guelph, Windsor
 Intensive legal education program with Osgoode Law Faculty: 6 students
full time assisting with initial intake and at mediations and hearings
 Pro bono lawyers panel: Volunteer lawyers take about 30 mediations a
year and achieve a good rate of settlement
 Training and support for legal clinics litigating human rights issues at
HRTO or other tribunals
 Partnerships with Student Legal Aid programs to provide application
assistance and representation at mediation.
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HRLSC in the Pinto Report:
Realistic Analysis of Representation Levels
The Report recognizes that many unrepresented applicants before the Tribunal have
never approached the HRLSC for service despite our phone # on HRTO Application.
In fact, approximately 40% of unsuccessful applicants have never contacted the HRLSC.
The other 60% of unsuccessful applicants contacted the HRLSC. About 1/6 received
HRLSC representation. Almost all the remaining group of unsuccessful applicant
received a legal assessment of their claim that concluded that their application would be
non-jurisdictional, unsupported by evidence/law or was otherwise not sufficiently
meritorious to be eligible for free legal representation.
Small number of the 60% rejected our service because they did not accept our
assessment of damages etc.
Usefully, the Report recognizes that it is a myth that all complainants received public
representation under the former human rights system.
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HRLSC in the Pinto Report:
Assisting self-represented applicants
• The Report notes that 44% of self-represented applicants are successful at
hearing and rejects the concept of “gatekeeping” in the new system.
• One thing not highlighted in the Report: the vast majority of successful selfrepresented applicants were assisted by the HRLSC in preparing and
litigating their claim.
• The Report recognizes that HRLSC lawyers have provided in-depth
assistance to approximately 2,400 applicants annually, while proving
representation in filing or at mediation or hearing in a much smaller number
of applications (approx. 600 per year)
• Taking you more deeply into the numbers, our analysis of 10 months of
Tribunal decisions demonstrated that over 85% of successful selfrepresented applicants had received legal assistance from the Centre.
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Would the HRLSC like to represent more
applicants at mediation and hearings?
• Yes. Our resources do not match the demand.
• What are the options?
• Provide less lawyer assistance to self-representing applicants?
• Divert resources from our telephone advice line?
• Reduce the number of lawyers and hire more paralegals?
• Triage model – our lawyers (or paralegals) interview every applicant with a
possibly meritorious claim.
• We try to identify and represent every applicant who wants representation
and has an arguable case. But we prioritize service to those with the
greatest challenges in self-representing.
• We are proud of the fact that we have provided assistance to the vast
majority of self-representing applicants who win at their hearings. But we
are perhaps even more pleased when we can represent and win.
• Hard to find good options within current resources.
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Specific Pinto Recommendations for HRLSC:
Telephone Advice Service
• Reduce telephone wait times to levels that are consistent with
comparable public service organizations.
• Advise and update callers on hold on the telephone about wait
times.
_______________________________________________________________
• Response rate on incoming calls has increased from a low of 50% to
a current rate of 84% in this fiscal year.
• Wait times in this fiscal year are averaging six minutes.
• Room for improvement; this is better than LAO advice service
• Callers on hold now get information on place in queue. Also can go
to website to monitor place in queue.
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Pinto Recommendations for HRLSC:
Wait Times for Non-urgent Interviews
• Reduce wait times to less than 30 days for initial interviews by a Human Rights
Advisor for non-urgent inquiries.
__________________________________________________
• Interviews within two weeks for callers with filing deadlines, summary
hearings, mediation and hearing dates.
• If caller wants to file an application and no looming limitation period or
other urgency, the interview wait time is currently 2-3 months.
• We recognize that this is unacceptable; hard to address without reducing
representation levels.
• We are currently using some unexpected vacancy savings to re-deploy staff
(and hire temporary backfill staff) to keep the wait from growing.
• We provided the Review with a financial plan to reduce the wait time for
non-urgent interviews to one month: the cost would be less than
$600,000 to hire a team of paralegals to do initial interviews.
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Pinto Recommendations for HRLSC:
Duty Counsel Program for Mediations
Reinstitute Duty Counsel service to assist Applicants at mediation in Toronto and if
possible in HRTO Regional Centres
________________________________________________________
• We would like to provide more representation at mediation. We developed
Duty Counsel pilot project in our first year but had to cut it when our
lawyers started to carry a full litigation load.
• Example of tough choices that we have to make in delivering service.
• Our Duty Counsel program achieved a good settlement rate and was highly
efficient.
• However in some cases we were giving legal assessments that mirrored
what the Vice Chair was delivering in the mediation room.
• Was this the best use of our resources? Does it reduce our capacity to take
systemic cases or to prioritize cases based on merit and greatest need?
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Pinto Recommendations for HRLSC:
Expand regional staff placed in clinics
HRLSC should expand the placement of staff in community legal clinics
outside Toronto
__________________________________________________
• Currently lawyers in Ottawa (half time); Sault Ste. Marie/Sudbury (full
time); Thunder Bay (full time); Guelph (full time) and Windsor (full
time).
• Open to moving more positions outside Toronto. Windsor was added in
the past year.
• Moving another position to Peel this year.
• We have applied for Law Foundation funding to add an Aboriginal
outreach worker in Thunder Bay (with Kinna-aweya legal clinic).
• Board recognizes regional staff as a priority but there is no special
infrastructure funding for this.
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Pinto Recommendations for HRLSC:
Better communication; more collaboration with
Commission and Tribunal
Three human rights agencies should meet regularly to focus on
better coordination.
____________________________________________________
• We agree that there is room for improvement here.
• HRLSC has initiated meetings with Commission staff and meetings
between our Board and the Commissioners.
• Some particular areas that may call out for better coordination –
 Public legal education materials on discrimination and human
rights process
 Self-help tools for self-representing parties
 Community outreach in marginalized communities including
Aboriginal communities (OHRC and HRLSC).
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Pinto Recommendations for HRLSC:
Increase Engagement of Aboriginal Persons
The HRLSC should coordinate with Commission to increase engagement of
Aboriginal persons in the human rights system
__________________________________________________
• Making our service accessible to Aboriginal communities is a priority.
• We have made effective use of Aboriginal media to make our services more
visible. Coverage of HRLSC cases in Wawatay News, Aboriginal Peoples T.V.,
Turtle Island News, First Perspective etc.
• HRLSC has a service policy aimed at ensuring culturally appropriate service
for Aboriginal persons. We facilitate requests from Aboriginal members of
the public for service by one of our Aboriginal staff lawyers.
• Pending funding application with Kinna-aweya clinic for an Aboriginal
Community Outreach Worker in Thunder Bay.
• HRLSC would like to expand its services in Aboriginal and northern
communities but would also be pleased to support or partner with an
Aboriginal organization in delivering human rights legal services.
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Pinto Recommendations for HRLSC:
Increased Funding
MAG should in the near term increase funding for the HRLSC significantly so the
HRLSC can better fulfill its statutory mandate.
___________________________________________________
• Enhanced capacity could be relatively inexpensive.
• The least expensive option is more paralegals. If our lawyers could do fewer
triage interviews, they could provide more representation.
• More representation at mediation would save the whole system money. Our
settlement rate is about 20% above HRTO average.
• As noted above, we provided the Review with a financial plan to reduce the wait
time for non-urgent interviews to one month: the cost could be approximately
$600,000 to hire a team of paralegals to do initial interviews.
• But note that the HRLSC is operating on 2008/9 dollars, with no increases to
base funding since opening our doors, including for salary increases. Not
sustainable.
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