Dawn of a New Era of Ontario Human Rights Complaints: Transitioning from a Commission-Based to a Tribunal-Based Complaints Procedure

We are in the middle of a fundamental shift with respect to the treatment of Human Rights Complaints in the Province of Ontario. The Ontario Human Rights Code is a sort of quasi-constitutional provincial law which exists to recognize the dignity and worth of every person, and to provide the right to equal treatment and equal opportunities in employment, housing, goods, services and facilities, contracts, and membership in trade and vocational associations (such as Unions). The stated purpose of the Ontario Human Rights Code is to prevent discrimination against harassment on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed, sex (including sexual harassment), pregnancy and gender identity, sexual orientation, family status, marital status, age, receipt of public assistance in housing cases, and record of offences in employment cases.

As you can see, the scope and mandate of the Ontario Human Rights Code is massive and goes to the fundamental core of our belief system and our identity as Canadians.

Unfortunately, the system for dealing with human rights complaints in Ontario has not been working well for a considerable period of time. The system had been criticized by complainants, respondents, government, and even people working within the system, as being cumbersome, slow, and unresponsive. Further, due to a strong body of caselaw, most notably the decision of Seneca College of Applied Arts and Technology v. Bhadayria [1], an individual that felt that his or her human rights were being violated was almost certainly precluded from seeking recourse in the courts and had to go through the existing human rights system.

With the passage of Bill 107 in 2007, this system has now been fundamentally changed.

Under the old system, Human Rights complaints in Ontario were dealt with by two important and distinct entities: The Ontario Human Rights Commission and the Ontario Human Rights Tribunal. Under the old system, an individual that felt that he or she was facing discrimination had to file a complaint with the Ontario Human Rights Commission within 6 months of that discrimination taking place. A problematic area under the old system involved cases of ongoing sexual harassment, the end of the period of harassment in the workplace. In those cases, was the limitation the beginning of the period of harassment, the end fo the period of harassment, or at some point in between? This question had been the subject matter of considerable jurisprudence and led to some arguably unfair conclusions. The discoverability principle was also something that was hotly contested in the old system.

Under the old system, after the individual filed a complaint, the party that was allegedly guilty of discrimination was given the opportunity to file a response. At this point, the commission would normally offer some sort of a mediation procedure, which was successful in resolving a significant number of complaints. If the mediation process was unsuccessful, the commission would then retain and appoint an investigator to conduct an independent investigation of the alleged Human Rights violation. Unfortunately, due to lack of resources, it was not uncommon for it to take two years or more, for an investigator to be appointed in these cases. This led to significant problems.

At the same time, under the old system, the Respondent had the ability to raise preliminary objections to be considered by the commission for such reasons as limitation issues, arguments that the complaint was frivolous and vexatious, and other arguments that would urge the commission to dismiss the claim summarily.

At the conclusion of the preliminary complaint and investigation stage, the investigator would prepare a report for presentation to the commission and would recommend either that the complaint be referred to the tribunal for hearing, or dismissed. It is worth noting that although there were in excess of 2,500 complaints filed per year under this system with the Ontario Human Rights Commission, only 100 complaints or so per year were actually referred to the tribunal.

There was a significant concern that the delays in the system were creating a substantial impediment to Justice. Further, the then Commissioner of the Ontario Human Rights Commission, Barbara Hall, had indicated that the commission felt that it would be of more service to the community by focusing on systemic discrimination cases, such as alleged racial profiling by the Toronto Police Services Board, rather than having to focus most of its resources on individual complaints. As a result, Bill 107 was passed, which basically takes responsibility for individual Human Rights complaints from the Ontario Human Rights Commission and places it immediately with the Human Rights Tribunal.

In addition, the new legislation makes a couple of other important changes. For one thing, it increases the limitation from 6 months to one year. Also, there are modified definitions of what constitutes continuing discrimination and it is hoped that these modified definitions will make it easier for complainants subject to ongoing discrimination to proceed to the tribunal without fear of limitation arguments.

The new Rules of Procedure for the tribunal are effective for all complaints filed after June 30, 2008. Note that all rules, tribunal information, and forms are available on the tribunal website at www.hrto.ca

The tribunal now has the power, pursuant to Rule 1.6 H.R.C. s. 43(3), to do whatever is necessary to ensure fair, just and expedious proceedings, including:

• The determine and direct the order in which issues in a proceeding will be considered and determined;
• To define and narrow the issues in order to decide an Application;
• To make cause to be made an examination of records or other inquiries, as it considers necessary;
• To determine and direct the order in which evidence will be presented;
• To direct parties to produce evidence, produce witnesses, and otherwise provide documentation that is reasonably within a party’s control;
• To permit an opening statement before questions;
• To question a witness itself; To limit the evidence or submissions on an issue;
• To require a party to produce documents, information or a person;
• To require a party or person to provide reports, statements or affidavit evidence.

Please note that there are detailed forms which must be completed to fill out an Application, Response, a Reply, or to provide any form of substantive information. Parties should consult with the tribunal’s website where these forms can be easily downloaded.

Individuals seeking to make a complaint are required to do so using Form 1 (see Rule 6). The requirements to complete Form 1 are more onerous than under the previous system. Not only must the Form 1 Application provide the substance of the allegation, including dates and locations, but it must also propose a remedy including a systemic remedy, provide a list of all relevant documentation, and provide a confidential list of witnesses and Will Say of what those witnesses are expected to say under oath. Note that there is a different Form 1 version that must be submitted depending upon the particular area of discrimination (Employment, Housing, Goods and Services, Contracts, and Membership in an Association).

Responses must be filed using Form 2 (see Rule 8) within 35 days of service of the Application and must set out what the complainant stated about the matter, whether an investigation was conducted, whether the Respondent has a Human Rights Policy, a list of witnesses with Will Say statements, and a list of relevant documents.

Within 14 days of the Response being delivered, the complainant is permitted to file a Reply, which is limited to new matters raised in the Response.

It is important to note that the Human Rights Tribunal process basically requires that both parties to a dispute do all their work at the front end, including identification of all relevant documents and witnesses.

The tribunal also has the authority to make summary determinations if parties fail to respond, allow other interested parties to intervene, defer consideration if another relevant legal proceeding is dealing with the substance of the Application that has been dealt with in another proceeding (Rule 7.1), dismiss an Application that is outside of its jurisdiction (Rule 13), dismiss an Application that has been dealt with in another proceeding (Rule 22 code section 45.1), or direct that a Case Assessment be prepared to facilitate the fair, just and expeditious resolution of the Application. At this point, we are not aware of how the Case Assessment Directions will function on a practical basis.

Civil litigators who decide to operate in the Human Rights Tribunal milieu will likely file the early disclosure of documents and witness lists to be the most challenging adjustment. Within 21 days of the tribunal sending confirmation of a Hearing, Rule 16 requires that the parties deliver to each other a list of “all arguably relevant documents” in their possession, including those over which privilege is claimed, and a copy of each document on the list (except privileged documents). Further, within 45 days of the actual Hearing date, the parties must serve each other and file with the tribunal list of all documents upon which they intend to rely and a copy of each document. Rule 17 requires that a witness list be filed with the other party and the tribunal within 45 days prior to the Hearing. This list must include expert witnesses that the party intends to produce to the tribunal and must also include a brief statement summarizing the witness’ evidence and, in the case of an expert, the CV of that expert.

A fundamental change between the old system and the new system is that the Application to the tribunal is no longer going to be preceded by a commission-led investigation. It is widely felt that this will likely result in more cases going to adjudication before the tribunal. However, parties interested in this procedure should note that the tribunal does have the authority to appoint a person to conduct an inquiry if same is required to obtain evidence, or the tribunal determines such evidence may assist in the fair, just and expeditious resolution of an Application and it is appropriate to do so. It is unclear as to how this investigative power will work.

The parties should also be aware that the new Rules seem to contemplate wide-ranging powers to compel the other side to produce relevant documentation, and this should be utilized under the new procedure. The parties should also consider that they need to make a concrete proposal with respect to the remedies that they are seeking, including public interest remedies, and they will be required to do so at each step.

There are two additional points that lawyers should consider when looking at the current status of Human Rights Complaints in Ontario.

The first item worth considering is the fact that there is a significant number of transitional complaints that remain in the system. Unfortunately, due to backlogs, there are hundreds, if not thousands, of complaints that were files with the Ontario Human Rights Commission prior to June 30, 2008 that were not resolved prior to December 31, 2008. Some of these complaints have been in the system for a number of years.

Under the transitional provisions, individuals that filed complaints with the commission had two choices: Their first option was to abandon the complaint and file an Application with the tribunal pursuant to s. 53(3), and ask for what the tribunal had labelled its “expedited process”. The second option faced by complainants was to simply take the complaint that was filed with the commission and re-file the complaint with the tribunal with a request that the matter be dealt with in accordance with the formal tribunal resolution process.

Section 53(3) Complaints are subject to the expedited procedure. According to the tribunal’s website, the expedited procedure is best suited for Applications that:

• Do not raise significant public policy issues;
• Do not involve complex questions of fact or law;
• Do not require the addition of more parties;
• Do not require amendments to the complaint;
• Do not require expert evidence (other than medical reports);
• Do not require the intervention of the commission.

A complaint who chooses this option will basically be offered a mediation followed by something the tribunal has labelled a “Case Resolution Conference”.

Parties should be aware of the fact that a Case Resolution Conference is not a form of alternative dispute resolution or mediation, but rather is an information hearing that will result in a final and binding determination of a complaint.

The Case Resolution Conference will be conducted by a “member of the tribunal who has expertise in Human Rights Law”. No less than 20 days before the Case Resolution Conference, the parties are required to deliver to each other and file with the tribunal, a copy of all documents upon which they intend to rely, a list of their witnesses, and a Will Say for those witnesses, and a statement of any additional facts upon which they want to rely. Parties are required to file a Statement of Delivery (Form C) of those documents with the tribunal.

In my experience, the tribunal has been rigid in requiring compliance with the timing and filing deadline Rules. In fact, I have even faced the objection that it is improper for me to provide a factum and/or book of authorities to the Human Rights Tribunal member at a Case Resolution Conference, unless that caselaw had been filed at least 20 days before the Hearing. While I maintain the view that caselaw and legal arguments are not “documentation” as contemplated by the Rule, the fact remains that parties should err of the side of caution.

The decisions of the Case Resolution Conference, according to the tribunal’s own website, “are final and are not subject to appeal”. There are some limited circumstances in which the tribunal might be asked to reconsider its decision, but I would expect that those reconsiderations will likely be extraordinary remedies. Parties also have the option of applying to Divisional Court for Judicial Review, but the tribunal is protected by its strong privative clause and such arguments will be difficult to advance.

Note that there are no provisions at the Ontario Human Rights Tribunal with respect to the awarding of legal costs.

Transitional Claimants also have the option of continuing with a formal Complaint with the Ontario Human Rights Tribunal. Basically, an individual who filed with the commission prior to June 30, 2008 and has yet to have his or her matter dealt with, is forced to re-file with the tribunal under s.53(5). By re-filing, the Complaint will basically be moved to the front of the queue and will be dealt with by the tribunal under its formal Dispute Resolution process, which would include mediation, followed by a referral to the tribunal. The tribunal has indicated that is intends to schedule hearing dates in a “timely fashion”, which it currently defines as 4 to 6 months from the failed mediation date.

It is likely that the Dispute Resolution process before the tribunal will basically mirror the formal process, which would involve formal calling of witnesses, experts, filing of documentation, and other regular steps in front of an Ontario Human Rights Tribunal-appointed Adjudicator, who would make a final and binding decision concerning the appeal.

Finally, civil litigators might want to consider the fact that the revised Rules explicitly allow claims for violation and infringement of the Ontario Human Rights Code in certain cases, to be pursued in the civil courts. I note, however, that these complaints must “piggy back” on anther valid action, e.g. for wrongful dismissal.

Note that the legislation seems to give a Superior Court Judge authority to award more than pure damages for such a violation (see s.46.1 of the Code). In other words, the Bhadauria decision appears to have been legislated away by these amendments and it also appears that a Judge has the authority to do anything required to address the discrimination including making an Order for reinstatement.

In my office, we have proceeded with a handful of these new complaints which are still at the pleadings stage. Civil litigators interested in advancing such an argument, should consider including wording similar to the following in their prayer for relief:

1. The Plaintiff Claims:

1. ……….

2. Damages for infringement of part 1 of the Ontario Human Rights Code as amended, including compensation for injury to dignity, feelings and self-respect;

3. An Order requiring the Respondent, “X” corporation, to reinstate the Applicant to his former role as [job title]….;

4. …………

These allegations should be fully canvassed in the body of the Claim. We would also recommend alleging that the improper conduct “represents a clear breach of part 1 of the Ontario Human Rights Code and that such breach entitles the Plaintiff to damages including compensation for injury to his/her dignity, feelings and self-respect” and entitle him/her inter alia to damages and/or reinstatement.

Conclusion

The significance of Bill 107 to the adjudication of Human Rights and Complaints in Ontario cannot be exaggerated.

The limitation periods have been increased and the definition of continuing discrimination has been modified to make it easier to make complaints.

The complaints process has been streamlined, and it is likely that it will now be easier and faster to get a complaint before the Ontario Human Rights Tribunal. Also, the changes explicitly allow Human Rights violations to be raised in the civil courts and arguably expand the authority of Superior Court Judges to Order redress for discrimination with remedies including reinstatement.

Notes

[1] [1989] 2 S.C.R. 181 [Bhadauria]