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In August, the new B.C. government took an important step: it decided to reinstate the B.C. Human Rights Commission, dismantled by the long-governing Liberals 15 years ago. This was not the first time that B.C.’s governments have taken a run at the human rights system. This year’s NDP announcement mirrors its restoration of the Commission in the 1990s after it was previously abolished by the Liberals in the Social Credit Action of 1983.
And good on the NDP for their persistence! Human Rights Commissions across the country play an important public advocacy role. They keep a watchful eye on larger system-wide problems — the myriad ways in which groups of people who are protected under provincial human rights legislation can be discriminated against. In Ontario, the Commission has been responsible for engaging in public consultations and preparing policies that help guide our society towards a fairer, less discriminatory society for people who have faced marginalization historically and still do today.
These policies are invaluable guidance in particular to those charged with guarding against discrimination under Ontario’s human rights legislation — housing providers, employers, contracting parties, service providers, and vocational associations. On nearly a daily basis, at Iler Campbell we are consulted by housing providers in particular on how they can best meet their obligations under Ontario’s Human Rights Code by providing assistance to a tenant or co-op member to accommodate a physical or mental health disability. The key to the answer to these questions often lies in the Commission’s Policy on Human Rights and Rental Housing or one of its other valuable publications.
The Ontario Commission’s role is separate from the role played by the Human Rights Tribunal, which decides whether individuals have experienced discrimination or harassment because of their personal characteristics — called “grounds” — on a complaints-driven basis. When tribunals decide that there has been discrimination or harassment, they order the responsible party to pay monetary damages to the victim to compensate them for, among other things, the injury to dignity that we as a society have decided is not acceptable.
But this was not always the case. Before Ontario reformed its system in 2008 into a direct access one, the Commission had two roles: the proactive, public advocacy and education role that it still has; and a second reactive role. It received and investigated individual complaints of potential Human Rights Code violations and forwarded those it determined had merit to the Tribunal for adjudication. Litigation is a drain on resources for complainants, the ones accused of discrimination, and adjudicative bodies alike. Before 2002 in B.C. and 2008 in Ontario, their Commissions’ gatekeeper function ensured that valuable adjudicative resources were spent hearing those cases where breaches were most likely, and that the cases considered were those bested suited for the formal adversarial environment of the Tribunal.
Before 2002, the B.C. Commission sent only about 15 per cent of complaints to the Tribunal for a hearing, according to the Times Colonist. In Ontario, the pre-2008 figure was much lower still — 5-7 per cent — as reported by Cornish, Faraday and Pickel in their 2009 book, Enforcing Human Rights in Ontario. Under “direct access,” any person who feels that they had been discriminated against, harassed, or reprised against on the basis of any protected ground in any relationship covered by the Code, can apply directly to the Human Rights Tribunal for adjudication without the blessing of the Commission.
The problem with the old system was that claims would sometimes languish for years in the Commission’s investigative pipeline. By the time the Commission determined them worthy of adjudication, claimants and respondents alike were tired by the process, but more problematically, people had moved on, and evidence was less readily available, if at all. Not ideal for a proper hearing and determination of rights. Direct access to the Tribunal was intended to fix that.
We are now nine years into the direct access system in Ontario, and for many of our clients, it has been only a qualified success. Faster, yes. More accessible, probably. But a more proper use of resources resulting in more just outcomes? Likely not. While it is true that complainants (called applicants) have to provide a more detailed application now, with more facts and a clearer sense of their desired remedy, removing the gatekeeper means that all those cases that would have been dismissed by the Commission now require respondents to take expensive and time-consuming steps to deal with — and that includes those claims with no merit whatsoever. For our clients, largely non‑profits, charities and co‑ops, these steps require counsel and despite our best efforts to contain costs, they redirect valuable third-sector resources from important community-building or other progressive activities.
In 2012, Ontario’s Ministry of the Attorney General released its report on the first three years of the direct access system. Its author, Andrew Pinto, a well‑known human rights lawyer in Toronto, addressed the issue of screening claims in the report. He noted the differences between the B.C. and Ontario systems: where the B.C. legislation allows its Tribunal to dismiss all or part of a claim at any time after it’s filed, with or without a hearing under specified circumstances, Ontario’s is more restrictive. The Code requires that before any claim is dismissed, an applicant is entitled to an oral hearing. Recognizing the potential for abuse, just two years into the new system, the Tribunal introduced a new process to allow respondents, or the Tribunal on its own, to schedule a hearing to determine whether a claim should be dismissed because it has “no reasonable prospect of success.” These summary hearings, however, are expensive to request and to prepare for, and the Tribunal has adopted a practice of allowing them to proceed only after mediation has failed, adding considerably to representation costs.
More troubling still, is that, in our experience, it is increasingly common for housing co-op members to use the Code to resolve community disputes or situations where they feel aggrieved for reasons unrelated to Code grounds. Ours is a narrow focus, but I fear that the same is true for other sectors. I am confident that most people would not be reduced to this kind of abuse of important protections for our least advantaged members of society. But among some bad apples, the word is out that without a gatekeeper, it’s likely that a claim will get as far as mediation and that claimants may walk away with some bucks and the satisfaction of knowing that their beef has gained the full attention of the respondent they have named. The cost, however, is considerable both for the respondent and for the Tribunal itself. There are no cost consequences to claimants, even when they choose to withdraw their application part‑way through the process, as recently happened with one of our clients. That is, they are not responsible for any of the legal costs associated with their wild goose chase.
We wait now to see how B.C. will revamp its system and in particular, what role it will give its Commission, drawing, I’m sure, on its own prior experience and those from other provinces, including Ontario. Of paramount importance, I hope, will be directing resources to ensuring justice. We look forward to Ontario one day tweaking its system to better achieve the same goal.
