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Human Rights (Ontario) Law
(30 September 2009)

Chapter 21 - Transition from the Old Code


  1. Overview
  2. Transition Procedures
    (a) Overview
    (b) Early Shift to New Procedures [s.53(3) applications]
    (c) Late Shift to New Procedures [s.53(5) applications]
    (d) Complaints Already Referred to Tribunal Under Old Code
    (e) Additional Transition Provisions

------------------------------

1. Overview

This chapter addresses issues of transition from procedures under the old (complaint-based) Code to the new (application-based) Code, brought about by the Human Rights Code Amendment Act, 2006 (HRCAA) [in force in 2008]. It is worth noting that these amendments dealt overwhelmingly with procedural matters, and that for the most part the substantive law of the Code has not changed.

As readers are probably aware by now, my view is that the old Code procedures were poorly designed and horribly administered to the point that the Code has been a fundamentally useless piece of legislation since its inception in 1962. The old model basically placed the Commission in a 'vetting' role with respect to complaints, only referring them for hearing after they were satisfied that they were meritorious - while the new model is a much more (though certainly not fully) a 'right-to-hearing' model.

I am certainly in favour of that direction of change and hope for the best. I note that the Minister of the Attorney General is required by 30 June 2011 to appoint someone to review and, after public consultations, report to the Minister within one year as to the effectiveness of these amendments Code s.57].

In this chapter I am not going to devote much effort to explaining old Code procedures in detail, and not much more on the transition processes. Most of this short chapter therefore will simply refer readers to external Rule and related links published by the Tribunal.

Note that the Tribunal's Policies and Practice Directives apply to the transitional applications discussed in this chapter as well. They are linked at "Source Law" off the Human Rights (Ontario) Legal Guide homepage.


2. Transition Procedures

(a) Overview

Of course, whenever an administrative tribunal shifts from one set of processes to another, the issue arises of what to do with those cases 'in the pipe' [Code s.53(1)]. This section addresses that issue.

The Human Rights Code Amendment Act (HRCAA), 2006 (Bill 107) establishes two such transition processes for pre-existing 'complaints' that have not yet been referred to the Tribunal for hearing. These may simply be described as the "early" and the "late" transitions to the new procedures, and no applications based on the same subject-matter as the pre-existing complaint may be made except under these two provisions [Code s.53(8)] (ie. one of the two transition application processes must be used, and a 'brand new' Code application is barred).

The key date which defines these two transition processes is called the "effective date" in the legislation [Code s.49]. The "effective date" is the date that the two main (and new) procedural provisions of the HRCAA were proclaimed into force. These provisions are HRCAA s.4 (which replaces the old Code provisions which defined the Commission and its powers) and HRCAA s.5 (which replaces the prior Ontario Human Rights Tribunal and defines its authority).

The "effective date" is 30 June 2008.

Also considered in this chapter are rules for dealing with complaints that had already been referred to the Tribunal for mediation and hearing at the time of the changes to effect.

(b) Early Shift to New Procedures [s.53(3) applications]

On 30 June 2008 the old Code procedures went onto temporary life support. No new complaints (ie. under the 'old' procedure) could be taken after that date (though of course at that same date the door opened for new 'applications'). That said, the old Code procedures were given a six-month (30 June 2008-31 December 2008) temporary 'reprieve' to continue to process existing complaints made under the old Code regime [Code s.53(2)].

Any complaints that, during this six-month period, were referred by the Commission to the Tribunal for hearing are considered in (e) below.

As for ones 'still in the pipe', during that six-month period any complainant who wished to 'opt-out' of the old procedures and into the new ones could do so ("early shift"). The process involved a withdrawal of the old complaint and a re-filing ('election') of a new [Code s.53(3)] 'application'.

The following Tribunal 'Guide' discusses special 'expediting' procedures for these s.53(3) 'early transition' applications:

Transition Guide Re 53(3) Early Shift Applications

Further, the "Rules" discussed elsewhere in this Legal Guide do not apply to transition applications (either 'early' or 'late' shift), rather they are governed by their own set of Rules, linked here:

Transitional Application Rules

(c) Late Shift to New Procedures [s.53(5) applications]

At 31 December 2008 (six months after the "effective date"), those complaints that were not voluntarily shifted to the new procedures by a s.53(3) 'early shift' application, technically terminate as the old Code machinery is taken off of life support and DIES! (general applause).

However any such (otherwise) 'terminated' complaints may, within a further six months [01 January 2009 to 30 June 2009], be resurrected by way of a s.53(5) ('late shift') application.

A useful overview of the s.53(5) complaint-to-application transition process is located at this link:

Transition Management Notice

The following Tribunal 'Guide' also discusses these s.53(5) applications:

Transition Guide Re 53(5) Late Shift Applications

Further, the "Rules" discussed elsewhere in this Legal Guide do not apply to transition applications (either 'early' or 'late' shift), rather they are governed by their own set of Rules, linked here:

Transitional Application Rules

(d) Complaints Already Referred to Tribunal Under Old Code

Of course, despite it's general ineffectiveness, the old Commission did refer some complaints for hearing before the Tribunal, and some of those were referred to the Commission for hearing before 31 December 2008. They fall into two procedural categories, depending on when they were referred to the Tribunal.

Firstly, complaints that were referred to the Tribunal between 20 December 2006 up to (but not including) 30 June 2008 are - until 30 June 2008 - dealt with under the old procedures except that [Code s.52(3)]:
  • there is no statutory appeal from such a Tribunal decision;

  • the decision may be reconsidered under the new Code reconsideration provisions; and

  • judicial review is limited to situations of "patent unreasonableness".
Next, complaints that were referred to the Tribunal under the old Code between 30 June 2008 and 31 December 2008 (inclusive) shall, commencing at 30 June 2008 or the date of referral (whichever is later), be processed under the new Tribunal Code provisions and Rules [Code s.55(1,2)]. Note that Code ss.55(3-5) set out some complex transition rules that apply when the Commission was a party to the old Code proceeding.

The Tribunal has published a Guide for Commission-Referred Complaints, linked here:

Guide for Commission-Referred Complaints

Rules for these Commission-referred complaints are linked here:

Rules of Practice re Commission-Referred Complaints

(e) Additional Transition Provisions

Additional transition provisions include:
  • the new s.45.9 settlement enforcement provisions [see Ch.13, s.4: Pre-Hearing Procedures: Settlement"] apply to settlements signed and approved by the Commission on or prior to 31 December 2008 [Code s.54];

  • "special program" designations given before 30 June 2008 all expire on 30 June 2013 [Code s.50];

  • new Tribunal member appointment criteria under s.32(3) start to apply to appointments as of 20 December 2006 [Code s.51] (see Ch.7, s.2(b): "The Tribunal and its Powers: The Human Rights Tribunal of Ontario and its Structure: Members and Employees") [Code s.51].

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