Saturday, March 17, 2012

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.


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.

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