The Human Rights Process
in Ontario:
Can We Do This Better?
January 14, 2005
University of Toronto Faculty of Law
Agenda for the Roundtable

9-9:30 Breakfast

9:30 Introduction and Setting the Stage (Lorne Sossin, Faculty of Law,
University of Toronto)

9:45-10:45: What's working; what's not working (summarizing discussions
and correspondence held prior to the workshop)

10:45-12:00: Discussion of Alternative Models and Reform Proposals

12:00 Lunch (provided in the room)

12:30-2:00 Continue Lunch/Small Group Discussion - (what are the most
important functions of the human rights system? what are the criteria
against which reform initiatives should be evaluated? what is the optimal
model for the human rights process in Ontario?)

2:00-3:00: Plenary report-back, Wrap up
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Current Ontario Model
(Commission Gatekeeper Model)

Ontario Human Rights Code enacted in 1962, the first Human Rights Code in Canada. The
Ontario Human Rights Commission (OHRC) was established in 1961 to administer the
Code.

Individual complaints must be filed with the OHRC. The Commission may initiate a
complaint on its own or at the request of any person. In 2003/2004, the Commission
received over 70,000 inquiries and 2450 new complaints.

The Commission has responsibility for intake, mediation, investigation, conciliation and
deciding which unresolved complaints will be referred to the Human Rights Tribunal of
Ontario. It has carriage of all complaints before the Tribunal .

Only complaints referred by the Commission can be heard by the Tribunal. Complainants
do not have an independent right of access.

The Commission has the power under s. 34 to dismiss a complaint without investigation for
a variety of reasons. Reconsideration of this decision can be requested by the complainant
or respondent, but there is no appeal. In 2003/2004, 12% % of closed files were dismissed
dismissed under s. 34.
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Ontario Model – Cont’d

Mediation services are provided before investigation is started. Mediation is voluntary and
confidential. In 2003/2004, 38% of closed files were settled through mediation and an
additional 13% of closed files were otherwise resolved between the parties.

If a complaint is not resolved or settled through mediation, the Commission will investigate
the complaint and attempt to reach a settlement through conciliation following the disclosure
of the investigator’s findings. In 2003/2004, the average age of complaints in the
investigation stage was 17.5 months.

Where conciliation is not successful, the Commission may refer the complaint to the
Tribunal. A party can ask that a decision to refer or to dismiss a complaint at this stage be
reconsidered. There is no appeal of the decision.

In 2002/2003, a total of 58 complaints were referred to a hearing, comprising 2.97% of all
complaint files closed. In 2003/2004, the referral statistics were unusual in that a group of
200 complaints were sent to the Tribunal to be heard together, in addition to 88 other
complaints referred to a hearing. The 89 new hearings represented just over 4% of a total of
2038 closed files.

At a hearing before the Tribunal, the Commission has carriage of the complaint and the
complainant has the right to have independent counsel. There is a full right of appeal of a
Tribunal’s decision to the Divisional Court.

The Commission has responsibility for public education and human rights promotion.
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Concerns Raised in Previous
Investigations and Reports

Excessive delay between filing of complaint, completion of investigation and hearing.

Complainants lose control of the process and want access to a hearing. Respondents
experience the behind-closed-doors aspect of the Commission process as inaccessible and
unfair.

Complainants feel pressured into accepting a settlement for fear of the Commission not
sending the complaint to the Tribunal for a hearing. Respondents report pressure to accept
a settlement regardless of merits, in order to avoid a hearing.

Competing perceptions that the Commission is dismissing too many meritorious complaints
because of lack of resources and does not dismiss trivial or vexatious claims quickly
enough.

Poor quality of investigations, particularly in connection with race based complaints.

Inability to focus on systemic discrimination, strategic litigation and education because
resources are consumed by investigation of individual claims.

Perceived conflict of the Commission’s dual role: advocate for human rights (through public
education and Tribunal advocacy) and neutral investigator, mediator and gatekeeper.
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Basic Principles for Ontario Reform

Commitment to strong and effective Human Rights protection in Ontario

Re-establishment of Ontario’s position as international leader in the field

Improved transparency and accessibility at all stages of the case resolution and decisionmaking process - elimination of the behind-closed-doors decision on dismissals and
referrals

Improved access to the human rights resolution process for people who experience
discrimination

Enhanced timeliness - what aspects of the process produce delay? Can they be
eliminated? At what cost?

Cost containment
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Other Canadian Models:
Radical Direct Access (B.C. Model)

Complaints are filed directly with the British Columbia Human Rights Tribunal (the
Commission has been abolished).

Any person, or group of persons can file a complaint. Subject to certain conditions,
representative claims may be brought. The Tribunal may allow individuals or groups to
intervene.

A member or panel of the Tribunal may dismiss a complaint without a hearing in certain
circumstances.

The Tribunal may make rules regarding, the holding of pre-hearing conferences and
requiring parties’ attendance; mediation and other dispute resolution processes.

Legal representation is provided to complainants through a publicly funded Human Rights
Clinic. The Clinic has recently introduced some qualifying criteria. The University of
Victoria’s Law Centre runs a clinic to assist respondents requiring assistance.

No right of appeal, judicial review is available.

The Minister Responsible for Human Rights has statutory responsibility for education, as
well as the power to initiate and conduct research related to discrimination.
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Other Canadian Models:
Ontario Human Rights Code
Review Task Force (Cornish)

Recommended four new bodies to administer enforcement of the Code:




Human Rights Ontario - responsible for research, education plus investigation and initiation of
systemic discrimination complaints; entitled to intervene in hearings before Tribunal
Equality Rights Centres - to provide community-based, publicly funded advocacy services under the
direction of Equality Services Board comprised of members of equality-seeking communities
Equality Rights Tribunal - to handle all aspect of complaint resolution: intake, case management,
mediation, disclosure, investigation (if ordered), adjudication.
Equality Rights Appointments Committee - to be responsible for appointments to the three bodies
above.

Complainants have the right to a hearing of their complaints by the Equality Rights Tribunal.

Tribunal adjudicators would have the express mandate to actively enquire into the real
substance and merits of the case before them (similar to WSIAT).

Voluntary mediation would be available at the Tribunal. Where mediation is unsuccessful or
the parties do not elect mediation, the complaint would proceed to an initial hearing before a
Tribunal Officer. Officer could hear motions for dismissal for lack of merit, for further
disclosure or investigation and other preliminary issues.

No access to the courts. Labour arbitrators would have authority to decide human rights
issues arising in matters before them.
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Other Canadian Models:
Strategic Direct Access (La Forest)

Complaints brought directly to the Tribunal. The Commission continues to deal with
questions from the public, and assist potential claimants draft their claims.

Commission able to join significant human rights cases and initiate claims relating to
systemic discrimination or new points of law.

Case management officers assigned to each claim to guide the claim through the Tribunal
process. Tribunal members would have considerable flexibility to determine how a prehearing would be held.

Tribunal would be able to dismiss all or part of a claim at an early stage in certain
circumstances. There would be no process to review the decision to dismiss.

Early and confidential mediation offered to the parties early and throughout the process.

Appeals from Tribunal decisions on questions of statutory interpretation and jurisdiction
would be to the Federal Court of Appeal.

Where the Commission does not join a claim, the claimant would receive independent legal
assistance at public expense. A legal clinic would be established to provide assistance with
the preparation and presentation of a claimant’s case at the Tribunal.

Respondents would be able to apply to the Tribunal where they can demonstrate an inability
to pay for legal services.
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Other Canadian Models
Quebec Model

The Quebec model is a combination of gatekeeper model and limited direct access.

If the Commission decides not to pursue a remedy on behalf of a complainant, the
legislation provides that a complainant can come before the Tribunal at their expense.

However, a Court of Appeal decision has limited individual recourse to the Tribunal to cases
where the Commission decides not to bring a matter before the Tribunal despite having
concluded that the complaint is well founded.
Civil Court

Another possible model would be to eliminate the Tribunal and have the adjudicative
functions performed by the civil courts. Complainants would file their claims directly with the
court.

The Commission would continue to exist but without its intake or screening functions. It
would have the ability to file complaints of a systemic nature or participate in individual
complaints.

Legal representation could be provided through a legal aid model operating through
community clinics and lawyers in private practice.
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Non-Canadian Jurisdictions:
Australia

Regime of overlapping anti-discrimination legislation enacted at the federal
“Commonwealth” level and by the State and Territorial governments. Complainants will
often be in a position to elect whether to proceed under Commonwealth or State/Territory
laws.

All Australian anti-discrimination legislation (at the federal and State/Territorial levels)
establishes an agency which accepts and investigates complaints, and tries to resolve
complaints by “conciliation”.

With the exception of North Australia, all Australian statutes appear to afford to the
complainant (and/or the respondent in some states), the right to a hearing on the merits of a
complaint either before a court or tribunal.
Federal Level

At Commonwealth level, the agency can “terminate” a complaint for a variety of reasons
including:




no prospect of settlement
more appropriate remedy available
complaint involves issue of public importance that should be heard by Federal Court
complaint lacks substance.
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Australia
cont’d

If a complaint is terminated, the complainant has a period of 28 days in which to take their
complaint to the Federal Court or to Magistrates Court.

The Commission has discretion under its legislation to assist complainants in preparing their
application to court. As well, the President of the Commission can provide the Federal Court
with a written report, and with leave of the Court, can intervene as amicus curiae in cases
that involve a broader public interest.
State/Territory

Under most State/Territorial statutes, a complainant has a right to require that their
complaint be adjudicated on its merits if it is not settled by the Commission.

After the completion of an unsuccessful conciliation process, complainants have a set period
(21 or 28 days) to require a referral of the complaint to Anti-Discrimination / Equal
Opportunity Tribunal. Under some state laws, the Commission can file a report with the
Tribunal arising out of its investigation of the complaint.

In some states, if the investigation/conciliation process is not completed within 6 months of
filing a complaint, either the complainant or the respondent can require referral to the
Tribunal.
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Non-Canadian Jurisdictions:
New Zealand

New legislation in 2001 significantly changed the process and established:



a Commission with responsibility for: human rights advocacy and education; promotion of
harmonious relations among diverse groups; and intake and mediation of complaints
an Office of Human Rights Proceedings that provides free legal representation to qualifying
complainants who wish to take their cases to the Human Rights Tribunal
a Human Rights Review Tribunal that hears and decides human rights disputes.

Where a complaint is not resolved by mediation at the Commission stage, the complainant
has the right to seek free representation from the Office of Human Rights Proceedings. At
the complainant’s request, the Office of Human Rights Proceedings can undertake further
investigation and mediation of the complaint, or can proceed directly to the Tribunal.

The Act provides that the Office consider the significance and impact of a complaint, and its
likely success, among other factors, in deciding whether to provide services to a
complainant.

A complainant can take their case directly to the Tribunal at their own expense, whether or
not they first apply for free legal services from the Office.

The Commission has the legislative mandate to intervene in any Tribunal or Court
proceeding involving a human rights issue of public importance.
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Non-Canadian Jurisdictions:
US - EEOC (Equal Employment Opportunity Commission)

Enforces several federal anti-discrimination laws including:






Title VII of Civil Rights Act 1964;
Equal Pay Act;
Age Discrimination in Employment Act;
Title I & V of Americans with Disabilities Act;
Ss. 501 & 505 of Rehabilitation Act; Civil Rights Act 1991;
Pregnancy Discrimination Act)

Has education and voluntary compliance responsibility for both the private and public sector
and a general public education mandate.

Responds to over 80,000 charges and files 3-400 suits in federal court each year. Around
1/3 of the suits filed are class suits, sometimes involving thousands of claimants.
Private Sector Employers

For all acts, except the Equal Pay Act, complaints (charges) must first be filed with the
EEOC.

EEOC has the power to investigate, dismiss at any stage, mediate, conciliate and file a suit
in federal court to enforce the charge. The EEOC also intervenes in discrimination suits
brought by private parties.
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EEOC - Cont’d

Claimants can file their own suit in federal court within 90 days after receiving a notice of
“right to sue” from the EEOC. This notice can be requested by a complainant either 90 or
180 days after a charge has been filed with the EEOC (depending upon the act). The notice
is issued automatically when the EEOC either decides to dismiss a complaint or if, after
investigation and conciliation, the EEOC decides not file a suit in federal court.

Charge handling process:






priority investigation process for facts that appear to support a violation.
confidential mediation is available on a voluntary basis prior to investigation
if investigation does not establish discrimination, the file is closed and notice issued
where investigation establishes discrimination, conciliation is attempted
If conciliation is not successful, EEOC determines, in accordance with its National and Local
Enforcement Plans, whether it will file a suit in Federal Court.
The EEOC General Counsel office has responsibility for overseeing litigation nationally and
includes a Systemic Litigation Services Unit and a research unit which employs social
science experts such as statisticians, economists and psychologists that assist with
investigations and provide expert testimony.
Federal Government Employers
 EEOC co-ordinates agency-based internal investigation and complaint resolution
procedures. Serious problems with delay are reported in the management of this process.
EEOC provides hearings for unresolved complaints before an EEOC administrative judge.

Private suits under some Acts can be filed in court. In some cases the the Agency/EEOC
process must first be exhausted.
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Non-Canadian Jurisdictions:
United Kingdom

The UK has anti-discrimination legislation in respect of the grounds of sex, race and
disability. There is currently a consultation underway to add 3 new grounds: sexual
orientation, religion and belief.

There are three separate commissions: Equal Opportunity Commission; Commission for
Racial Equality; Disability Rights Commission. The current public consultation is also
considering merger of the three commission.

The role of the Commissions is to assist in investigating complaints, in settlement
negotiations and to arrange for legal advice and/or representation for complainants.

The Commissions have discretion in deciding the degree of service that it will offer to
complainants.

Human rights hearings are conducted by industrial tribunals or in the courts.

The Commissions do not have a gatekeeper function similar to the Ontario Commission.
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Bibliography/Key Reports

Ontario Human Rights Code Review Task Force, “Achieving Equality: A Report on Human
Rights Reform” (Cornish Report) (Ontario, 1992)

Ontario Human Rights Commission, “Submission to Ontario Human Rights Code Review
Task Force”, 5 May, 1992

Report of the Auditor General of Canada, Chapter 10, “Canadian Human Rights
Commission and Canadian Human RightsTribunal” (Auditor General Report) (Canada,
1998)

Canadian Human Rights Act Review Panel Report, “Promoting Equality: A New Vision” (La
Forest Report) (Canada, 2000)

“Report on Legal Representation Models under the British Columbia Human Rights Code”
(Black/ Thomson Legal Representation Report )(BC, 1998)

Praxis Research and Consulting Inc., “Final Report on the Public Consultations:
Organization Review of the Nova Scotia Human Rights Commission” (the Praxis Research
Report) (Nova Scotia, 2001)

“Equal Dignity and Rights – A Review of Human Rights in Alberta by the Alberta Human
Rights Review Panel” (O’Neil Report) (Alberta, 1994)
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Bibliography/Key Reports

Coalition for Reform of the Ontario Human Rights Commission, “Dysfunction in the Human
Rights Complaints System”, Brief to the Cornish Task Force, November 1995.

Shelagh Day and Gwen Brodsky, “Improving Canada's Human Rights Machinery: A Report
Prepared for Canadian Human Rights Act Review Panel”, October 1999

Raj Anand and Mohan Sharma, “Report on Direct Access to Binding Adjudication under the
Canadian Human Rights Act”, prepared for the CHRA Review Panel, 1 December, 1999

Deborah K. Lovett & Angela R. Westmacott, Human Rights Review, Administrative Justice
Project (BC, 2001)

Bruce Porter, Homelessness, Human Rights, Litigation and Law Reform: A View From
Canada in P. Lynch and D. Otto, (eds) Homelessness and Human Rights. 2005 Australian
Journal for Human Rights (forthcoming)

Bruce Porter, Joanna Birenbaum, “Screening Rights: The Denial of The Right to
Adjudication Under The Canadian Human Rights Act And How to Remedy It”, research
paper prepared for the CHRA Review Panel”, 4 November, 1999
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Bibliography/Key Reports

Andrew Pinto, “Human Rights Commissions in Canada: The Promise and Prevention of
Access to Justice” Conference Proceedings, Access to Justice in the Commonwealth,
British Institute of International and Comparative Law,Windsor, United Kingdom, July 2002

Andrew Pinto, "Who's on First: Jurisdictional Disputes in Employment, Labour and Human
Rights Law", OBA Forum: "Employment Regulation: Statutes and Pitfalls" 27 April, 2002

Mark Hart and Geri Sanson, Getting Rid of the “Gatekeeper”: A Practical Model for Human
Rights Reform, January 2005

Geri Sanson, “Transparency and Accountability in the Human Rights Process”, CBA Joint
National Administrative Law and Labour and Employment Law Conference, November 2627, 2004.

R. Brian Howe & David Johnston, Restraining Equality – Human Rights Commissions in
Canada (Toronto: U of T press, 2000)

Tamar Witelson, “Retort: Revisiting Bhadauria and the Supreme Court’s Rejection of a Tort
of Discrimination”, (1999) 10 N.J.C.L. 149
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