Ontario Human Rights Review

The Human Rights Legal Support Centre is sending this to individuals and organizations who may be interested in participating in the Ontario Human Rights Review that is evaluating the effectiveness of the changes to Ontario's human rights enforcement system. For more information to help you evaluate the work of the Centre in providing legal services to individuals who have experienced discrimination, please visit our website.

Below are some quick answers to recent questions.

Are there more human rights claims under the new human rights system?

Yes, Since the changes to the Code, more individuals have filed discrimination claims. The Commission received an average of 2400 new claims (called "complaints") each year. Under the new system, individuals have filed more than 3000 claims (called "applications") at the Tribunal each year.

Are there more full public human rights hearings under the new system?

Yes. More human rights cases now go to a full public hearing. Let's compare two typical years.

In 2006/7, the Tribunal released 11 final decisions after completing full public hearings on the merits. In the last years before the Code changed, the Tribunal released an average of 10-11 final decisions annually.

In 2010/11, the Tribunal issued 104 final decisions after full hearings – a ten-fold increase. In addition, the Tribunal issued 256 final decisions after public hearings of transitional complaints filed at the Commission under the old system. The Tribunal issued a total of 360 decisions in 2010/11, compared to 11 in 2006/7.

Do claimants have to investigate their own discrimination claims under the new system?

No. Under the new system, discrimination claims don't have to be investigated before a claimant can apply to the Tribunal for a hearing into allegations of discrimination. In the vast majority of discrimination claims, under either system, the primary evidence needed at the hearing is the testimony of both sides and any witnesses. The Tribunal process requires the alleged discriminator to disclose, without an investigation and in advance of the hearing, all the relevant information, including documents.

In more complicated cases, the new legislation provides plenty of tools to help an applicant to access the evidence needed to prove discrimination. The Tribunal can order the alleged discriminator to disclose more information and, in a rare case where more is required, could undertake its own investigation. The Centre retains experts to identify evidence of discrimination as needed.

Under the old system, the Commission investigated 300-400 complaints each year to determine if the complaints should be dismissed or sent to the Tribunal for a hearing. In 2006/7, the Commission investigated 329 complaints, dismissing 189 complaints and referring the remaining 140 complaints to a hearing. The average age of an investigated complaint was 26.5 months. When the Commission sent a complaint to a hearing, counsel for the Commission collected the evidence to prove discrimination in the same way as the Centre's lawyers do today – by interviewing potential witnesses and examining disclosed documents.

Are public interest remedies being ordered under the new system?

Yes. The Tribunal has the power to order a respondent to implement broad "public interest" measures to prevent future discrimination that could harm the community. The Tribunal now has the authority to order a public interest remedy even if an applicant has not asked. The Centre recommends public interest remedies in every case, at hearings and at mediation.

In litigating applications in 2010/11, the Centre achieved a public interest remedy in 70% of its successful decisions, in addition to winning financial awards in excess of $346,000. Examples include:

·        order requiring an employer to take human rights training provided by the Commission;

·        order requiring a service provider to retain at their own expense a qualified consultant to review practices and make recommendations concerning accommodation of children with disabilities in all the respondent’s programs;

·        order requiring a police service to develop training materials for the investigation of harassment, discrimination and reprisal complaints in consultation with a human rights expert; and

·        order requiring an employer to retain an independent human rights expert to develop a human rights policy and a procedure for harassment complaints.

Examples of public interest remedies negotiated by the Centre at mediation include: 

·        a national retailer developed a new accommodation policy and trained staff across Canada;

·        a telemarketer introduced a support program for employees harassed on the basis of race;

·        a housing provider removed mobility barriers in common areas of a multi-unit building;

·        employer developed a sexual harassment policy and to provide training for recently immigrated employees in their own first languages;

·        a police service implemented a new monitoring system for incidents involving the deaf community.

Are more discrimination cases settling before a hearing?

The settlement rates are about the same.

The 2006/7 Annual Report states that the Commission received 2,337 new complaints and settled 58.9% of closed complaints. 1,247 complaints were settled at the Commission and another 77 complaints were settled at the Tribunal, for a total of 1,324 settled complaints.  Only 11 complaints were closed after a full hearing and a decision by the Tribunal.

In 2010/11, the Tribunal received 3,167 new applications and settled 60.4%: 1,870 applications settled at the Tribunal before the hearing.  104 applications were closed after a full hearing and a decision by the Tribunal.

This means that 830 more claims were filed and 546 more claims were settled under the new system. But the rate of settlement changed very little.

Another point about settlement. Under the old system, 94% of settlements happened at the Commission, 1-2 years before the parties would learn if their case would go to a hearing.  Only 4-6% of complaints were permitted to go to a hearing.

Under the new system, all settlements happen at the Tribunal, usually within 6 months of the upcoming hearing.  An individual who has suffered discrimination is now in a much stronger position to negotiate a good settlement, including a remedy that will benefit others (called a "public interest remedy"), such as a change in workplace policies.