Report of the Ontario Human Rights Review 2012 Initial thoughts from the OHRC’s Executive Director November 9, 2012

2 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

3 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

4 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: 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 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”?

5 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

6 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: – 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

7 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

8 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: – Human 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

9 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 Work) and e-learning, working with Chambers of Commerce, Human Resources Professionals Association of Ontario (HRPAO)

10 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?