African-Canadians call for overhaul to "broken" human rigths adjudicative process

A group of African-Canadians led by the African Canadian Legal Clinic met with with Mr. Andrew Pinto, a lawyer appointed by the Ontario Government to review the performance of the new Human Rights Tribunal of Ontario, on March 13th to provide their input on the current system's short-comings and how the system can be improved.

Margaret Parsons, Executive Director of the African Canadian Legal Clinic, pointed out that race and disability complaints represent the clear majority of complaints to the Tribuanl yet a significant number of these complaints are being summarily dismissed without a hearing on their merits. Ms. Parsons pointed a number of reasons for this unfortunate reality which included the following:

1. Inadequate training and expertise of staff
at the Human Rights Legal Support Centre with race
and disability complaints which lead to
"knee jerk" conclusions that complaints
have no merit thereby leaving many complainants
without legal representation;

2. The Government's decision to dispense with the
investigative function formerly carried out by
the Ontario Human Rights Commission has resulted
in an inordinate number of complaints based on
race lacking the evidentiary basis to establish
a prima facie case; and

3. The lack of coverage from Legal Aid Ontario for
complainants even though many of the complainants
can not afford legal representation.

Ontario's human rights legislation and adjudicative system - once the envy of other North American jurisdictions received a major overhaul which resulted in the discontinuance of the investigative and procecutorial function previously carried out by the Ontario Human Rights Commission. Under the previous system the OHRC was under a statutory duty to investigate and prosecute violations of the Human Rights Code. On a practical level this meant that complainants did not need a lawyer to advance their case. The OHRC's investigator's would investigate the complaint and if it was found to have merit its prosecutors would prosecute the case on behalf of the complainant before a tribunal.

The current system has been severely and justifiably critized by many affected groups and communities in Ontario including the writer. Critics of the current system argue that what are supposed to be quasi-constitutional rights have been rendered all but illusory. An analysis of the number of cases which get to the hearing stage compared to the overall number of complaints indicates that a significant majority of complaints are dismissed on various procedural grounds. The majority of those which are disposed of on their merits dismiss the complaints. Perhaps the most troubling issue with the Tribunal from a user point of view is that glaring lack of a consistent adjudicative policy. Some adjudicators follow the prevailing law on such fundamental issues as the assessement of witness credibility, the weighing of evidence and hearsay while others clearly do not.(see for example prior posts on Clennon v. Toronto East General Hospital and McKay v. Toronto Police Service) Another shortfall of the current system is the failure to provide a vehicle for complainants to recover their costs in some circumstances as under the unjust dismissal provision of the Canada Labour Code Part III.

COMMENTARY:

If the Ontario Government is truly committed to the principles articulated in the Ontario Human Rights Code and s.15 of the Canadian Charter of Rights and Freedoms it needs to immediately translate their talk into action. Dispensing with the investigative and prosecutorial model previously carried out by the Ontario Human Rights Commission is entirely inconsistent with the public policy articulated in the Code. Bringing the HRTO and various other tribunals under an umbrella tribunal termed "Social Justice Tribunal" does nothing to assist Ontario's victims of discrimination to bring to fruition the fundamental rights which are so eloquently laid out in the Code when the playing field to assert these rights are so disproportinatley skewed against them. Nothing short of a strong and independent investigative and prosecutorial body combined with a competent adjudicative tribunal which has the discretion to order costs to complainants where the circumstances justify it is capable of living up to the quasi-constitutional nature of human rights. We either respect human rights or we do not. The current system shows a total abdication of the principles set out in the Code and equality provisions of the Charter.

Note: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the Ontario Government's current review of the existing delivery of the adjudication of human rights complaints in Ontario.

RACIAL PROFILING FINDING AGAINST TORONTO POLICE UPHELD ON APPEAL

The Ontario Court of Appeal unanimously upheld a Human Rights Tribuanl of Ontario(HRTO)finding of liability for racial profiling against the Toronto Police Service on March 13th, 2012. The case involved an African-Canadian Canada Post employee, Ronald Phipps, who was stopped and questioned while in full uniform and delivering mail by Police Constable Michael Shaw - a 30 year veteran - because he was suspicious and thought that Mr. Phipps may have been wearing the uniform as a disguise. Surprisingly, P.C. Shaw's superiors had instructed him to look out for white Eastern European men with a vehicle.

Lawyers representing the police argued, amongst other things, that the HRTO adjudicator arrived at her conclusion on discrimination based on "unconscious discrimination". According to police counsel this concept improperly imposes a burden of disproof on Constable Shaw. The Court of Appeal correctly rejected this argument. They said:

"However, this was not a case where the Adjudicator
concluded, without supporting evidence, that because
discrimination can be unconscious, Cst. Shaw
unconsciously discriminated against Mr. Phipps. Indeed,
the Adjudicator did not assume discrimination, but drew
an inference of discrimination from a number of different
pieces of evidence. As the Adjudicator observed, in any
event, proof of Cst. Shaw's subjective intention to
discriminate is not a ncesssary component of the test.
There is seldom direct evidence of a subjective intention
to discriminate, because "racial stereotyping will usually
be the result of subtle unconscious beliefs, biases and
prejudices" and racial discrimination "often operates on an
unconscious level."

I have never seen an African-Canadian firefighter in Canada !: Impediments to equality in recruitment

After reading about the recent U.S. District Court ruling finding the New York City Fire Department liable for discriminating against African-American and Latino-American job applicants, it forced me to reflect on the situation in Toronto. Toronto is often touted as one of the most diverse cities in the world. Policy makers are always quick to suggest that Toronto is a model for the world in that everyone gets along so well here. This is far from the reality of life for the vast majority of African-Canadian and other non-whites in the Toronto area.

My observations lead me to conclude that our policy makers are seriously out of touch with the problem of rampant discrimination and inequality in public employment such as the police service, fire department, para-medic service, school board and the WSIB. I - for one - have never seen an African-Canadian firefighter in Toronto. This in my mind suggests a serious and fundamental flaw in their recruiting practices. I lived in Berkely, California for a period of time and during this time the Chief of their fire department was a 47 year old African-American woman. At the same time the Police Chief in San Francisco was an Asian-American woman - who incidentally had replaced an African-American man. Policy makers in Toronto can say what they wish but it is clear that the bulk of the jobs in the areas delineated above are somehow reserved for the following groups in this city: British, Scottish, Irish, German and Italian.

Policy makers who are serious about addressing this very serious problem in the Metropolitan Toronto area need to stop talking and need to start taking decisive and positive steps to eradicate the causes of this discriminaiton and inequality. They need to move away from their defensive posture of "We are not racist". The debate over intentional and adverse-impact discrimination was put to rest in the U.S. Supreme Court decision of Griggs v. Duke Power Co. 401 U.S. 424 (USSC) and this principle was accepted by all Canadian courts and tribunals . Although the issue is no longer about establishing the perpetrator's motive for their acts and omissions in establishing discriminatory practices - especially in hiring - you would never know that from listening to policy-makers. "We are not racist" and "They are not applying" are two common explanations for the problem.

As a lawyer representing victims of discrimination in Toronto, it is clear to me that all job applicants are not equal in the employer's eyes. "Outsiders" or those who do not have an inside connection to the place of employment do not get the same level of attention as those with a parent, relative or friend who can attest to their status as a "good guy or gal". Up until very recently this was the main recruitment tool for City of Toronto employment. If a father was a police officer his son or daughter was almost guranteed a job in the police force or elsewhere in the City. While the recruitment pool of candidates has been increased today this "insider" "outsider" factor continues to impeade the goal of equality in the recruitment process. A drink at the pub with the "insider" traditionally sealed the deal and there is nothing that the "outsider" could do to trump this. If there was an exam the "insider" would get full particulars on the exam and what to say. The "outsider" without this "knowledge" would always fail. Of course the bargaining agents would be a part of this "insider" culture so grievances on this issue do not go anywhere.

There are a number of other impediments to equality in public sector recruitment. I will make an effort to address them in anoter post !

NOTE: This piece is written for the sole purpose of drawing attention and discussion to an issue of public importance - the exclusion of the majority of the Metropolitan Toronto area's population base from well-paying public sector jobs.