Simon looking earnest in Preveza, Greece
Simon Shields, Lawyer

Advising Self-Representing
Ontario Litigants
Since 2005

tenant / small claims / welfare (ontario works) / odsp / human rights / employment / consumer /
collection agencies / criminal injuries compensation / sppa (admin law)
/ line fences / animal cruelty / dogs & cats / wild animal law (all Canada) / war / conditions of guide use

home / about / client testimonials / areas of practice / about self-representation

Your
Self-Representation
Service Options

Simon Shields, LLB




























Human Rights (Ontario) Law
(30 September 2009)

Chapter 18 - Commission Role


  1. Overview
  2. The Ontario Human Rights Commission
    (a) The Commission, its Members and Staff
    (b) Ancillary Bodies
    . Overview
    . Anti-Racism Secretariat
    . Disability Anti-Racism Secretariat
    . Other Advisory Groups
    (c) Reporting
  3. Functions and Roles of the Commission
    (a) Overview
    (b) General Purposes
    (c) Delegation of Functions
  4. Commission Involvement in Private Applications
    (a) Overview
    (b) Intervenor Role
    (c) Related Notice Provisions
  5. Stating a Case to the Divisional Court
    (a) Overview
    (b) Procedure
    (c) Divisional Court Procedures
------------------------------


1. Overview

The historical role of the Ontario Human Rights Commission is discussed in Ch.1 "Overview". Briefly, prior to recent 2008 amendments to the Ontario Human Rights Code, the Commission had a much more central role in the management of private Code 'complaints' (as they were then called) than it does now. Under that regime, and in addition to an openly-acknowledged policy mandate, it had a duty to both assess and investigate individual complaints before they would be scheduled for hearing.

As most readers will appreciate by now I view the past Commission, with its gross delay and inefficiencies, and its fanatical gate-keeping role as a more formidable adversary to the advancement of human rights in Ontario than any respondent party ever could be. That complainants first had to battle their way through Commission obstructionism was likely viewed by most respondents and their lawyers with great comfort.

What is discussed here in this chapter is a relatively straightforward review of the Commission's role under the new legislation. Let us all hope for the best.

The Commission's website is linked here for reference:

Ontario Human Right Commission website


2. The Ontario Human Rights Commission

(a) The Commission, its Members and Staff

The new legislative amendments formally continue the existence of the Ontario Human Rights Commission ("Commission") [Code s.27(1)].

The Commission is constituted by members, who - like members of the Human Rights Tribunal (see Ch.7: "The Tribunal and its Powers") are appointees of the government of the day, though formally appointed by the Lieutenant-Governor in Council [Code s.27(2)].

Factors to be applied when appointing a member include:
  • their "knowledge, experience or training with respect to human rights law and issues" [Code s.27(3)]; and

  • "the importance of reflecting, in the composition of the Commission as a whole, the diversity of Ontario's population [Code s.27(4)]".
The government of the day will designate one member to be the Chief Commissioner, and that person "shall direct the Commission and exercise the powers and perform the duties assigned to the Chief Commissioner by or under this Act." [Code s.27(5,6)].

In the event that the Chief Commissioner "dies, resigns or is unable or neglects to perform his or her duties", the government may appoint an "acting Chief Commissioner". Unlike the Chief Commissioner position, there is no legal requirement that the Acting Chief Commissioner be a member of the Commission as well [Code s.28(1,2)].

Both regular members and the Chief Commissioner are appointed for fixed terms [Code s.27(7)], and are paid salaries and expense allowances fixed by the government [Code s.27(8)].

The Commission may also appoint employees under Part III of the Public Service of Ontario Act, 2006 [Code s.27(9)].

Members are not compellable (cannot be forced to testify) as witnesses in any legal proceedings with respect to "information obtained in the performance of duties under this Act" [Code s.27(10)]. Neither are employees, except in Code proceedings [Code s.27(11)].

(b) Ancillary Bodies

. Overview

The Code authorizes the creation of several ancillary bodies to further its objectives.

. Anti-Racism Secretariat

The Anti-Racism Secretariat is comprised of up to six government appointees (recommended by the Chief Commissioner and paid by the government) and is directed by the Chief Commissioner [Code s.31.3(1-3)].

The Anti-Racism Secretariat shall [Code 31.3(4)]:
  • "undertake, direct and encourage research into discriminatory practices that infringe rights under Part I on the basis of racism or a related ground and make recommendations to the Commission designed to prevent and eliminate such discriminatory practices;

  • facilitate the development and provision of programs of public information and education relating to the elimination of racism; and

  • undertake such tasks and responsibilities as may be assigned by the Chief Commissioner."
. Disability Anti-Racism Secretariat

The Disability Secretariat is comprised of up to six government appointees (recommended by the Chief Commissioner and paid by the government) and is directed by the Chief Commissioner [Code s.31.4(1-3)].

The Disability Secretariat shall [Code 31.4(4)]:
  • undertake, direct and encourage research into discriminatory practices that infringe rights under Part I on the basis of disability and make recommendations to the Commission designed to prevent and eliminate such discriminatory practices;

  • facilitate the development and provision of programs of public information and education intended to promote the elimination of discriminatory practices that infringe rights under Part I on the basis of disability; and

  • undertake such tasks and responsibilities as may be assigned by the Chief Commissioner.
. Other Advisory Groups

The Chief Commissioner may "establish such advisory groups as he or she considers appropriate to advise the Commission about the elimination of discriminatory practices that infringe rights under this Act." [Code s.31.5].

(c) Reporting

The Commission is legally required to submit to the legislature (speaker's office), by 30 June of each year, an annual report for the reporting year ending 31 March [Code s.31.6(1,2)], although the Minister of the Attorney-General shall receive a copy 30 days before the legislature does.

In past the Commission has been late in producing annual reports.

The Commission may also produce other reports "respecting the state of human rights in Ontario and the affairs of the Commission", "and may present such reports to the public or any other person it considers appropriate" [Code s.31.7].


3. Functions and Roles of the Commission

(a) Overview

The Commission is given a range of duties and authorities under the Code. Its primary functions are explained (or referenced to discussions in other chapters) below.

(b) General Purposes

The broad, general functions of the Commission are [Code s.29]:
... to promote and advance respect for human rights in Ontario, to protect human rights in Ontario and, recognizing that it is in the public interest to do so and that it is the Commission?s duty to protect the public interest, to identify and promote the elimination of discriminatory practices.
More specifically, its functions are [Code s.29]:
  • Anti-discrimination

    "to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law";

  • Public Information and Education

    "to develop and conduct programs of public information and education to,

    (i) promote awareness and understanding of, respect for and compliance with this Act, and

    (ii) prevent and eliminate discriminatory practices that infringe rights under Part I";

  • Research

    "to undertake, direct and encourage research into discriminatory practices and to make recommendations designed to prevent and eliminate such discriminatory practices";

  • Legal Review

    "to examine and review any statute or regulation, and any program or policy made by or under a statute, and make recommendations on any provision, program or policy that in its opinion is inconsistent with the intent of this Act";

  • Sector Investigation

    "to initiate reviews and inquiries into incidents of tension or conflict, or conditions that lead or may lead to incidents of tension or conflict, in a community, institution, industry or sector of the economy, and to make recommendations, and encourage and co-ordinate plans, programs and activities, to reduce or prevent such incidents or sources of tension or conflict";

    The role of the Commission in conducting evidence inquiries is discussed in Ch.15, s.5: "Evidence: Commission Evidence Inquiries".

  • Program Development

    "to promote, assist and encourage public, municipal or private agencies, organizations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination";

  • Special Program Designation

    "to designate programs as special programs in accordance with section 14";

    This function is discussed further in Ch.6, s.2: "General Exceptions: Affirmative Action Programs".

  • Policy Formation

    "to approve policies under section 30";

    This refers to the Code s.30 development of Commission policies regarding substantive Code law [the subjects of Chapters 2-6].

    Commission policies may (ie. optionally on its own initiative) be considered by the Tribunal when deciding cases before it [Code s.45.5(1)], and the Tribunal shall (ie. must) consider such policies "if a party to the proceeding or an intervenor requests that it do so" [Code s.45.5(2)].

    The Commission may "notify parties (to Code proceedings) of policies approved by the Commission under section 30 of the Code, and receive submissions on the policies" [Rule 1.7(v)].

  • Commission Applications

    "to make applications to the Tribunal under section 35;"

    This refers to the Code s.35 ability of the Commission to initiate applications to the Tribunal in a fashion similar to that of s.34 private citizen applications (see Ch.9: "Commissioner Applications").

  • Reporting

    "to report to the people of Ontario on the state of human rights in Ontario and on its affairs";

    These duties are discussed in s.2(c), above.

  • Other Functions

    "to perform the functions assigned to the Commission under this or any other Act".

    Throughout the Code and the Tribunal Rules the Commission is assigned and granted various duties and powers. Some of the more significant of these are discussed below, and others are discussed throughout this Isthatlegal.ca Human Rights Law (Ontario) Legal Guide in relation to their specific topics.
(c) Delegation of Functions

The Commission may delegate any of its functions to 'divisions' (typically committees) of three of more members [Code s.27(13)].

Further, the Chief Commissioner may "in writing delegate any of his or her powers, duties or functions under this Act to any member of the Anti-Racism Secretariat, the Disability Rights Secretariat or an advisory group or to any other member of the Commission, subject to such conditions as the Chief Commissioner may set out in the delegation" [Code 27(12)]. These entities are discussed in s.2(b) above.


4. Commission Involvement in Private Applications

(a) Overview

Ch.8 ["Private Applications"] considers s.34 private citizen applications, which are distinct from the s.35 Commission applications considered in Ch.9 and referred to in s.3(b) above.

(b) Intervenor Role

The Commission however can have an intervenor role in s.34 applications, either as a party or as otherwise specified by the Tribunal, and with or without party consent. For a fuller discussion of this Commission role, see Ch.10, s.5(c): "Parties: Intervention: Commission Intervention".

(c) Related Notice Provisions

Presumably to facilitate the Commission in exercising this intervention role, the Code provides that:
Code s.38 Despite anything in the Freedom of Information and Protection of Privacy Act, at the request of the Commission, the Tribunal shall disclose to the Commission copies of applications and responses filed with the Tribunal and may disclose to the Commission other documents in its custody or in its control.
and that:
Rule 1.7 In order to provide for
the fair, just and expeditious resolution of any matter before it the Tribunal may:

(f) direct that notice of a proceeding be given to any person or organization, including the Commission;
and further that:
Code s.45.4(1) The Tribunal may refer any matters arising out of a proceeding before it to the Commission if, in the Tribunal's opinion, they are matters of public interest or are otherwise of interest to the Commission.

Code s.45.4(2) The Commission may, in its discretion, decide whether to deal with a matter referred to it by the Tribunal.

5. Stating a Case to the Divisional Court

(a) Overview

In Ch.20 ["Judicial Review"] I discuss the lack of any statutory appeal of Tribunal decisions, and the efforts made in the Code to generally immunize itself from judicial review.

The Code does however have a process for court applications similar to judicial review, namely an application 'by way of a stated case' to the Divisional Court. Such applications may only be brought by the Commission, only with respect to Code proceedings that the Commission was a party or intervenor in, only on a question of law, and only if "the Commission believes that the decision or order is not consistent with a policy that has been approved by the Commission" [this refers to the Commission policies referred to in s.3(b) above] [Code s.45.6(1,2); Rule 27.1].

"Stated case" means the posing of specific written legal questions for the opinion of the court.

(b) Procedure

The procedure is cumbersome and involves a preliminary application to the same Tribunal whose decision the Commission seeks to review. If such application is successful, it is the Tribunal that states the case for court review [Code s.45.6(1,2)].

The application for a stated case shall be served on all the parties at the application level, and filed, within 60 days after the issuance of the Tribunal decision or order. The form is [Rule 27.2]:

Form 22: Commission Application to Request Stated Case

The application must:
  • identify the Commission policy, approved under section 30 of the Code, that is the subject of the application;

  • include a statement setting out the reasons why the Commission believes that the decision or order is not consistent with the Commission-approved policy; and

  • state why the Commission believes that the application relates to a question of law and that it would be appropriate for the Tribunal to state a case for the opinion of the Divisional Court on the question of law.
Supporting respondent submissions are due for service and filing within 20 days of service of the Application, while opposing respondent submissions are due for service and filing within 30 days after service of the application [Rule 27.3, 27.4]. No form is prescribed for such Responses, so presumably any organized format, such as a letter (served on all parties and the Tribunal), will do.

The Commission's Reply, if any, is then due for service within 10 days after the service of any opposing submissions (or presumably from the opposing submission deadline if none are filed) [Rule 27.5].

There is no automatic stay of the decision in the Code application pending the outcome of an application for a stated case [Code s.45.6(6); Rule 27.6].

(c) Divisional Court Procedures

The parties to the stated case to the Divisional Court are the same parties as at the Code application level [Code s.45.6(3)]. As well, the Tribunal itself may be heard through counsel [Code s.45.6(4)].

There is no automatic stay of the decision in the Code application pending the outcome of the stated case [Code s.45.6(6)].

Within 30 days of receipt of the decision of the Divisional Court, any party to the stated case proceeding may apply to the Tribunal for a reconsideration of its original decision (see Ch.19: "Reconsiderations") [Code s.45.6(7)].

Lawyer License #37308N / Website © Simon Shields 2005-2017