Human Rights (Ontario) Legal Guide
(01 March 2019)
Chapter 1 - Overview
- The Past
- The Future
This Isthatlegal.ca Human Rights (Ontario) Legal Guide attempts to set out, for both lay and professional readers, the essentials of law relating to Ontario's Human Rights Code (the "Code"). It covers both substantive (rights) law [Chapters 2-6] and procedural law [Chapters 7-21], as established under the newly amended (in 2008) Code.
There is full coverage of the Code, the Regulation made under it, the Rules and related documents issued by the Ontario Human Rights Tribunal. As well, procedural issues are considered in their context as part of Ontario's ever-growing administrative law realm, influenced heavily by both the Statutory Powers Procedures Act and the common law of natural justice and fairness.
The present Guide, while covering some case law, does not yet contain a detailed case law review, and I hope to add that in future (see the case updating notes in the 'Currency of Law' link). This is less of a loss for procedural matters, as Code procedures were fundamentally re-written with the 2008 Code amendments. However there is a body of case law making findings of substantive discrimination that the Guide could benefit from.
That said, the key Ch.4 ["Discrimination"] delves deeply into both past and current key case law on the much-debated issue of "discrimination" per se. I hope that my conclusions there assist readers in understanding the present state of discrimination law both under the Code, and as well under the closely-related s.15 equality protections of the Canadian Charter of Rights and Freedoms [these are contrasted in Ch.4, s.2: "Discrimination: Charter and Code Compared"].
2. The Past
In these Isthatlegal.ca Legal Guides I have had periodic occasion to refer to the Human Rights regime in Ontario (last was in 2008) and I have not been kind, to say the least.
Before I rant however, a definition is required. "Gate-keeping" is a term (as I use it) used to describe practices of institutions that are designed to, or have the effect of, barring or discouraging claimants from initiating or pursuing their claims. An example might be a private insurance company that requires claims to be submitted on a particular form only, and then makes it next to impossible to get that form.
In my view the administration of the Code regime for over 25 years (again until 2008) in its prior Commission-dominated form was a travesty of justice unparalleled in type and degree in modern Ontario history. Under the legal pretense of investigating the merits of cases and otherwise ensuring cases were properly before ad hoc Boards of Inquiry (and later the first standing Ontario Human Rights Tribunal), the Commission gate-kept the flow of complaints into near oblivion with a range of Kafkaesque techniques which included (there were many more):
When not doing its active best to kill off cases outright the Commission's other primary operating mode was plain, bald delay. Cases could easily drag out for 5,6 or 7 years and more before shell-shocked complainants just walked away from them in complete loss of confidence in the system. Of course the Commission had the audacity to count such abandonments as though the complainant had either satisfied their sense of justice or 'seen better' of their original complaint.
- Intake Screening
Only issuing complaint forms (yes, the blank ones to be filled out) to would-be complainants after they had subjected themselves to an intrusive phone intake procedure which was in reality a vetting hurdle. In this process complainants faced the potential of being refused issuance or dissuaded from requesting forms on thebsummary assessment that their case was unmeritorious, beyond jurisdiction, and more (of course only forms issued via that process were acceptable to initiate complaints);
- Complaints in Improper Format
Refusing to accept complaints as improper when details where attached as separate documents to the intake form (as in "see attached"), despite the inadequate space provided for required details;
The 'new' forms have absurdly small areas for such important
things as fact allegations and remedies sought (sometimes one
line). If this practice is continued the result will be
- Lack of Jurisdiction
Habitually refusing complaints that had even peripheral involvement with other legal regimes (eg. social assistance, landlord and tenant, WSIB, OLRB, employment standards, etc), on the basis that another legal regime was better suited to address the issues [even though prior to the Tranchemontagne v Director (ODSP) (SCC, 2006) all of those regimes similarly refused to consider human rights issues on the same reasoning - leaving the complainant completely bereft].
- Summary Dismissal
Summarily dismissing complaints as lacking merits both before and after 'investigation', before the complainant had the oppourtunity to adduce any evidence whatsoever in open hearing. Under the old system cases were not sent to hearing until the Commission was satisfied that they were ready to go, complainants were not entitled to carriage of their own cases, even with the assistance of counsel.
This situation was exposed time after time by numerous legislative committee reports, Royal Commissions and Ombudsperson's reports but was never substantially addressed until the 2008 Code amendments (discussed in s.3 below). The normal pre-2008 Commission response was another case management blitz, purporting to get more cases fully processed but in reality just pushing the gate-keeping to more hideous extremes. I call this the era of business-management, and it is during this time that the most outrageous and insulting re-categorizations of case 'outcomes' occured, with cases abandoned by complainants after 8 years of Commission foot-dragging being presented as successful 'resolutions' in order to bolster case closure quotas.
But ... the above would be something I could say with sincerity in 2008. I can only recall having one HRC case since then (a loss, with what I thought was an absurd evidence ruling).
So I had to search for a thoughtful, more-recent piece and found this by Martin A. Smith, Partner and Desneiges Mitchell, Associate Lawyer, McCague Borlack LLP apparently from 2013. It's nowhere near as critical of the OHRT as I would be, but it's thoughtful and thorough for what it does:
“Five Years Later: The Application of the Human Rights Code Today”
3. The Future
The 2008 Code regime removes from the Commission the role of case investigation and designating cases for hearing (vetting), a huge positive step.
That said, while the new s.34 'private application' (my term) process (which replaces the old 'complaints' process) is much more akin to typical administrative or civil legal commencement procedures, the new regime has created and perpetuated many, many techniques by which an application can be summarily dismissed prior to hearing. Further, 'hearings' - with the exception of oral submissions (ie. closing arguments) - can be ordered to be conducted in writing or by telephone, hardly the re-assertion of any robust traditional hearing process.
The 'new' Commission has largely been relegated a policy role, one which its' staff has always been more comfortable with in any event. If the new Code regime is going to resurrect the monster that past Commissions have been, it will be in the form of the Human Rights Tribunal ("Tribunal") itself. In Ch 7, s.3 ["The Tribunal and its Powers: Tribunal Rule-Making Powers"] I explain the unprecedented degree to which the new Tribunal has taken on, and exercised, pervasive and wide-ranging procedural rule-making powers. While most administrative tribunals have their governing procedures set down by regulation (a form of legislation typically delegating authority to the cabinet of the party in power) I can think of no administrative regime in Ontario with greater procedural authority over itself than the new Human Rights Tribunal itself. When it comes to the efficient and just operation of a tribunal system, this is very much a 'fox and hen-house' conflict of interest situation.
In illustration of this, in Ch.12 ["Summary and Related Proceedings"] I explore the numerous way in which the Tribunal and it's Rules can dismiss or side-track an application before a syllable of evidence can be called at hearing (the worst occuring after 2008). While many of these powers look innocuous enough on their face, they harbour huge potential to replicate and extend the draconian gate-keeping tactics that we experienced for so many tragic years under the Commission system. Given that past and prolonged record, a record repeatedly and authoritatively identified and critiqued, Ontarians are entitled to presume the worst of the new system until shown otherwise.
When these summary dismissal powers are supplemented (as they are) with additional mediation, case assessnemt [both in Ch.13: "Pre-Hearing Procedures"] and broad reconsideration authority [see Ch.19: "Reconsiderations"], the Tribunal is well-positioned to drag cases out indefinitely through either design or mismanagement, replicating a primary obstructionist tactic of the previous Commission regime.
In short, I am hoping for a lot in terms of change, but am not expecting much. Somebody please prove me wrong.