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Memorandum of understanding between the Attorney General of Ontario and the Ontario Human Rights Commission

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MEMORANDUM OF UNDERSTANDING
between The Attorney General of Ontario and
The Chief Commissioner, Ontario Human Rights Commission,
on behalf of the Commission

Preamble

The Minister and the Chief Commissioner share a commitment to the principles captured in the preamble to Ontario’s Human Rights Code, which recognizes the importance of and the need to reflect relevant international human rights principles, and agree that a strong and independent Ontario Human Rights Commission, capable of fulfilling its mandate efficiently and effectively, contributes substantially to the realization of those principles.  (Appendix I sets out, for convenience, the relevant portions of the preamble to the Code.)  To that end, the Minister and Chief Commissioner share the goal of establishing a relationship that ensures the responsible administration of the Commission and the fulfillment of its legislative mandate in a manner consistent with the effective and efficient use of public resources and with the Commission’s independent role in facilitating compliance with the Code.

The Minister and the Chief Commissioner are also committed to ensuring the flow of appropriate information between the Ministry and the Commission to assist each in fulfilling its proper role in respect of the Code.

1.0. Definitions 

In this Memorandum of Understanding:

“AEAD” means the Management Board of Cabinet’s Agency Establishment and Accountability Directive;

“Chief Commissioner” means the Chief Commissioner of the Ontario Human Rights Commission appointed by the Lieutenant Governor in Council pursuant to section 27 of the Code and includes any Acting Chief Commissioner appointed temporarily under section 28 of the Code;

Code” means the Human Rights Code, R.S.O. 1990, c. H.19, as amended from time to time;

 “Commission” means the statutory body known as the Ontario Human Rights Commission and comprising the appointed members of the Commission and the public servants appointed under the Public Service of Ontario Act to carry out the Commission’s administrative and operational powers and obligations;

“Commissioners” means the members appointed by the Lieutenant Governor in Council to the Commission pursuant to section 27 of the Code;

“Deputy Minister” means the deputy minister of the Ministry;

“Executive Director” means the Executive Director of the Commission;

FIPPA” means the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended from time to time;

“MBC” means Management Board of Cabinet;

“MOU” means Memorandum of Understanding;

“Minister” means the Attorney General of Ontario, or such other minister to whom the Lieutenant Governor in Council may subsequently assign ministerial responsibility for the Code;

“Ministry” means the ministry led from time to time by the Minister;

PSOA” means the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Schedule A, as it may be amended from time to time;

“TB” means the Treasury Board of Ontario; and

“Tribunal” means the Human Rights Tribunal of Ontario.

2. Purpose

The purpose of this MOU is to:

  1. clarify the financial, administrative, human resources and reporting relationships between the Minister and the Commission through its Chief Commissioner;
  2. clarify the roles and responsibilities of the Minister, the Chief Commissioner, the Deputy Minister, the Executive Director and the Commission; and
  3. set out the expectations for the administrative, financial, auditing, human resources and reporting arrangements between the Commission and the Ministry.

3.  Commission's legal authority and mandate 

  1. The Commission’s legal authority derives from the Code.
  2. The Corporations Act and the Corporations Information Act do not apply to the Commission.
  3. The Commission does not have independent legal personality and cannot sue, be sued or hold property in its own right.
  4. The Commission’s mandate is to protect, promote and advance human rights in Ontario.  Its functions are those set out in section 29 of the Code, as it may be amended from time to time.  Appendix I sets out, for convenience, the functions prescribed for the Commission in the Code at the time this MOU comes into effect.

4.  The Commission's classification

  1. The Commission is classified under the AEAD as a regulatory agency without a governing board.
  2. Sections 1 and 2 of Ontario Regulation 374/07 designate the Commission as a public body and a Commission public body for purposes of the PSOA.
  3. The Commission is an agent of the Crown in right of Ontario within the meaning of the Crown Agency Act, R.S.O. 1990, c. C.48, as amended.

5.  Guiding principles

The parties acknowledge and agree to the following principles.

  1. The human rights system in Ontario comprises the Commission, the Tribunal and the Human Rights Legal Support Centre.
  2. The principles set out in the preamble to the Code (and reproduced for convenience in Appendix I) are at the foundation of Ontario’s human rights system.
  3. The Commission exercises powers and performs duties in accordance with its legal mandate.  The Commission plays a meaningful role in the development, as well as the delivery, of the policies and programs of the government.
  4. The Commission’s decisions relating to regulatory, litigation, public education and policy matters must be made and be seen to made impartially and independently of the government.  Government interference with the choice or conduct of any Commission inquiries, with the formulation or publication of any Commission policies, with Commission determinations under section 14 of the Code or with the Commission’s decisions about involvement in or initiation of any Tribunal or other legal proceedings would compromise the Commission’s capacity to function independently and impartially, and would be inappropriate.
  5. In carrying out its statutory mandate, the Commission may take positions that are publicly critical of, or that challenge, legislation and current government policies, positions and/or practices.
  6. The Attorney General is the guardian of the public interest in respect of the rule of law and the administration of justice.  He or she has statutory obligations to ensure that the administration of public affairs is in accordance with law and to superintend all matters connected with the administration of justice in Ontario.
  7. The Attorney General and the Chief Commissioner shall engage in meaningful, good faith consultation about matters that either may reasonably consider to be of importance to both.
  8. Accountability is a fundamental principle to be observed in the management and administration of the Commission.
  9. The Commission is to conduct itself in accordance with the management principles of the government of Ontario.  These include: ethical behaviour; prudent, efficient and lawful use of public resources; fairness; high quality service to the public; and openness and transparency to the extent allowed under law.
  10. The Commission shall conduct its business and administrative affairs in accordance with all relevant government policies and with generally accepted management and accounting principles.
  11. The Ministry and the Commission shall avoid duplication of services wherever possible.

6.  Interpretation

This MOU is to be construed and applied in a manner consistent with its guiding principles, with the Code and any relevant regulations and international human rights principles that guide development and protection of effective national institutions for the protection and promotion of human rights and of ensuring the pluralism of their membership and their independence.  It does not modify, limit or interfere with the responsibilities of any of its parties as established by law.  In case of conflict between this MOU and any statute (including the Code) or regulation, the statute or regulation prevails to the extent of the conflict.  Section 47(2) of the Code gives the Code presumptive primacy over other legislation in case of conflict

7.  Duration, review and amendment

  1. This MOU takes effect on the date it is signed by both parties.  In accordance with AEAD requirements, the Chief Commissioner’s signature shall precede the Minister’s.  It expires five years from the date it comes into effect unless replaced by a new MOU before that date, but shall remain in force on a strictly temporary basis until a new MOU replaces it.
  2. Either the Minister or the Chief Commissioner may initiate a review of this MOU at any time by written request to the other.
  3. In any event, the Minister and the Chief Commissioner shall initiate and cooperate in a full review of this MOU on the earlier of the following dates:
  1. within thirty days of the date any significant change to the Commission’s statutory mandate, authority or governance structure, other than those already scheduled to come into force by January 1, 2009, takes effect;
  2. the date the Lieutenant Governor in Council assigns ministerial responsibility for the Code to the minister of a different ministry, unless that Minister and Chief Commissioner agree by letter that this MOU will continue in force without review or amendment; or
  3. four years from the date this MOU takes effect.
  1. The Minister and the Chief Commissioner may, at any time, by mutual agreement after a review of this MOU, revise or amend it without affecting its ordinary termination date, or replace it with a new MOU.

8. Periodic reviews

  1. The Code requires the Minister to appoint a person to conduct a review of “the implementation and effectiveness of the changes resulting from the enactment” of the 2006 amendments to the Code three years after the effective date of those amendments. That person’s review may consider any aspect of the human rights system affected by the amendments, including the Commission’s mandate, powers, governance structure and/or operations.
  2. In addition, the Minister or TB/MBC may direct periodic reviews of the Commission; Treasury Board/Management Board Directives require such a review of each classified agency every five years.  The Minister and the Chief Commissioner shall consult with one another as appropriate during any such review. 
  3. The Chief Commissioner and the Executive Director shall cooperate in any such review.

9.  Accountability relationshiops

9.1 Minister
  1. The Minister is responsible to the Legislative Assembly for the Code.  The Minister is accountable to the Cabinet for reporting on whether the Commission is conducting itself in a manner consistent with its legal authority and with relevant and appropriate government policies.
  2. The Minister is answerable for inquiries about the Commission in the Cabinet and its committees and in the Legislative Assembly.
9.2  Chief Commissioner
  1. The Chief Commissioner shall ensure
  1. that the Speaker of the Legislative Assembly receives the Commission’s annual report for one fiscal year not later than June 30 of the next fiscal year; and
  2. that the Minister receives a copy of the annual report at least thirty (30) days before the Speaker receives it

and shall appear, where invited or permitted, and respond to inquiries about the affairs of the Commission before committees of the Legislative Assembly.

  1. The Chief Commissioner is accountable to the Minister for the Commission’s financial and administrative performance, for carrying out the roles assigned to the Chief Commissioner under this MOU, TB/MBC and Ministry of Finance directives and the Commission’s approved annual business plan, and for ensuring that the Commission’s performance reflects and respects the law and its statutory mandate.
9.3 The Commission
  1. The Commission is accountable to the people of Ontario in reports on its own affairs and on the state of human rights in Ontario.
  2. The Commission is accountable annually to the Legislative Assembly for the affairs it undertakes and the manner in which it carries them out.
  3. The Commission acknowledges that it is accountable in financial and administrative matters for compliance with this MOU, with TB/MBC and Ministry of Finance directives, and with its approved business plan, and generally for ensuring that its performance reflects and respects the law and fulfills its statutory mandate, and that this means accountability to the Legislative Assembly through its annual reports and, through its reports on financial and administrative matters, to the Minister.
9.4  Deputy Minister

The Deputy Minister is accountable to the Minister for the performance of the Ministry in providing administrative support to the Commission in fulfilling its mandate and for carrying out the roles and responsibilities assigned to him or her by the Minister, by TB/MBC and Ministry of Finance directives and by this MOU.

9.5  Executive Director
  1. The Executive Director is accountable to the Commission through the Chief Commissioner on the functions of the Commission and to the Deputy Attorney General on financial and administrative matters.
  2. The Executive Director works under the direction of the Chief Commissioner to implement policies and operational decisions, and reports to the Chief Commissioner on the performance of Commission staff every ninety days, at a minimum.
9.6  Commission Staff

Commission staff report and are accountable to the Executive Director for their performance.

10. Conflict of interest

The Chief Commissioner is responsible for ensuring that appointees and staff of the Commission are informed of the conflict of interest rules, including the rules on political activity, that govern the Commission.

11. Roles and responsibilities

11.1 Minister

The Minister is responsible for:

  1. monitoring, through the Chief Commissioner, the Commission’s activities in relation to its mandate;
  2. responding to inquiries about the Commission in Cabinet and its committees and in the Legislative Assembly;
  3. reporting and responding to the Cabinet on the Commission’s performance and compliance with government policies and policy directions;
  4. receiving and reviewing an advance copy of the Commission’s annual report before the Commission submits it to the Legislative Assembly;
  5. meeting with the Chief Commissioner, as needed, to be kept informed of the Commission’s affairs, including such matters as budget, objectives, plans, results and overall policy and public education activities;
  6. meeting with the Commissioners at least once a year;
  7. determining the need for any review and recommendations to TB/MBC on the status of the Commission, its mandate or on any changes to the arrangements needed to assist it in fulfilling its existing statutory mandate;
  8. recommending to TB/MBC, after consultation with the Chief Commissioner, the powers to be given to the Commission when a change in the Commission’s mandate is being proposed;
  9. meeting with the Chief Commissioner or the Commissioners to discuss, propose or recommend corrective action if, in his or her opinion, serious questions of public importance arise in respect of the Commission’s operations;
  10. ensuring, through the Deputy Minister, that the Commission operates in an efficient and effective manner in accordance with TB/MBC directives and guidelines;
  11. informing the Chief Commissioner of any preferences the government may have in respect of the Commission or its mandate;
  • advising the Commission through the Chief Commissioner, as appropriate, of Ontario government public education or communications initiatives that relate to the Commission’s responsibilities;
  1. consulting as early as practicable, with the Chief Commissioner (and others) when the government is considering regulatory or legislative changes affecting Ontario’s Human Rights Code, and as appropriate on significant and relevant new government directions;
  • monitoring for compliance with the Code in the development of government policy;
  • developing MOUs for the Commission with the Chief Commissioner and signing them into effect;
  1. recommending to TB/MBC any provincial funding to be given to the Commission;
  2. directing periodic review of the Commission in accordance with Part 8 of this MOU and making subsequent recommendations to TB/MBC;
  3. recommending this MOU to TB/MBC for approval once there is agreement on text but before it is signed by the parties; and
  4. reviewing and considering the advice of the Chief Commissioner on candidates for appointment or reappointment to the Commission.
11.2 Chief Commissioner

The Chief Commissioner is responsible for:

  1. keeping informed of human rights issues and trends, domestic and, as appropriate, international, and of the activities, performance and expenditures of the Commission in order to advise and make recommendations to the Minister;
  2. submitting the Commission’s annual report to the Speaker of the Legislative Assembly in accordance with section 31.6(2) of the Code and, in accordance with section 31.6(3) of the Code, to the Minister at least thirty (30) days before submitting it to the Speaker;
  3. keeping the Minister informed about the affairs of the Commission and about issues or events that may concern him or her in the exercise of his or her responsibilities;
  4. providing the Minister with such information about the Commission’s administrative management as the Minister may require for reports to Cabinet, the Legislative Assembly and its committees and for the development and review of government policy, programs and administration;
  5. meeting with the Minister to discuss possible corrective action if the Commission forms the opinion that serious questions of public importance have arisen about the government’s compliance with the Code;
  6. attending and/or making presentations, when invited or permitted, before committees of the Legislative Assembly on matters affecting the Commission’s operations;
  7. ensuring that the Commission carries out its affairs in accordance with the Code;
  8. providing leadership to the Commission;
  9. presiding at meetings of the Commissioners;
  10. developing performance measures and targets for the Commission;
  11. monitoring the performance of the Commission to ensure the implementation of the Commission’s goals and long-term vision;
  • directing corrective action, as needed, in respect of the Commission’s operations and execution of its functions;
  1. reviewing and approving the Commission’s business plan and budget proposals and its annual report and financial reports and submitting them to the Minister by the times and dates specified in TB/MBC and Ministry of Finance directives and in this MOU;
  • ensuring that public funds are used with integrity and honesty;
  • providing both the Minister and the Minister of Finance with copies of every audit report and with the Commission’s response to each such report and to any recommendations contained within it in a timely manner;
  1. advising the Minister annually on any outstanding audit recommendations;
  2. ensuring that Commissioners are informed of their responsibilities under the PSOA in respect of ethical conduct (PSOA, Part III) and political activity (PSOA, Part IV);
  3. recording any declared or apparent conflicts of interest and advising the Minister and the Conflict of Interest Commissioner of these conflicts promptly;
  4. hiring the Executive Director, in consultation with the Deputy Minister ;
  5. ensuring through the Executive Director that:
  1. appropriate management systems (financial, information technology, human resources) are in place for the Commission’s effective administration;
  2. the Commission fulfills its mandate and operates within its approved budget allocation;
  3. performance measures and targets are developed for the Commission;
  4. there is an appropriate framework for orienting and training Commissioners and staff;
  5. Commissioners and staff are aware of and comply with TB/MBC and Ministry of Finance Directives;
  6. the Commission has a process for responding, in a timely manner, to media inquiries and resolving promptly complaints or other concerns raised by the public that relate to the Commission’s operations;
  7. conflict of interest rules, approved by the Conflict of Interest Commissioner, are in place for Commission staff; and
  8. Commission policies are publicly available;
  1. carrying out effective public communications as the Commission’s chief spokesperson;
  2. cooperating with any periodic review undertaken in accordance with §8 of this MOU;
  3. keeping the minister informed of pending appointment vacancies and offering recommendations for appointments and reappointments;
  4. reviewing and approving Commissioners’ claims for per diems and expenses;
  5. ensuring that the Executive Director’s performance contract is in place and that it sets out the Executive Director’s responsibilities and reporting obligations and the standards he or she is to meet in carrying them out;
  6. in consultation with the Deputy Minister,
  1. developing performance criteria for evaluation of the Executive Director; and
  2. evaluating the Executive Director’s performance against those criteria;
  1. communicating Commission policy and strategic directions to the Executive Director;
  1. monitoring the Commission’s performance to ensure ethical behaviour, accountability and excellence in management, sound use of public resources, value for money, openness and transparency;
  2. working with the Minister to minimize duplication of services; and
  3. advising the Minister promptly of, and attempting to consult with him or her in advance about, any Commission plans or initiatives that may affect materially government policy, unless such advice or consultation would compromise the Commission’s mandate, independence or ability to function.
11.3 The Commissioners

The Commissioners are responsible for:

  1. ensuring that the Commission fulfills the functions assigned to it by section 29 of the Code;
  2. fulfilling their responsibilities under the PSOA in respect of ethical conduct (PSOA, Part III) and political activity (PSOA, Part IV); and
  3. consulting, as appropriate, with interested and affected parties on the Commission’s goals, objectives, strategic directions, rules and procedures.

Individual Commissioners are also responsible for carrying out such responsibilities of the Chief Commissioner as he or she may delegate to them under section 27(12) of the Code, subject to such conditions as the Chief Commissioner may prescribe.

11.4 Deputy Minister

The Deputy Minister is responsible for:

  1. the operation of the Ministry, including human resources policies, and the implementation of corporate policies, including policies concerning freedom of information and equal opportunity;
  2. providing, in consultation with the Executive Director, a framework for ascertaining whether the Commission is fulfilling its mandate, and assisting the Minister in conducting that appraisal;
  3. advising the Minister on the requirements of the AEAD and other directives that apply to the Commission;
  4. advising the Minister on the Commission’s operation and on any proposals that could affect its status;
  5. establishing a framework for reviewing and assessing the Commission’s business plans and other reports;
  6. advising the Minister on documents the Commission submits to the Minister for review or approval, or both;
  7. undertaking and cooperating with any review of the Commission as directed by the Minister or TB/MBC in accordance with Part 8 of this MOU;
  8. monitoring the Commission as requested by the Minister while respecting the Commission’s independence and authority; identifying, where warranted, occasions for corrective action and recommending to the Minister ways of resolving issues;
  9. negotiating a draft MOU with the Chief Commissioner as directed by the Minister;
  10. consulting with the Chief Commissioner, as needed, on matters of mutual importance, including: the Code; TB/MBC directives; Ministry policies; and services the Ministry provides;
  11. meeting with the Chief Commissioner as needed or as the Minister directs;
  • arranging for the administrative, financial and other support for the Commission that this MOU prescribes;
  1. meeting regularly with the Executive Director to discuss matters of mutual importance to the Commission and the Ministry;
  • receiving information from, and sharing information with, the Executive Director on emerging issues and events that concern or could reasonably be expected to concern the Commission, the Minister or the Deputy Minister in the exercise of their responsibilities; and
  • consulting with the Chief Commissioner on the performance evaluation of the Executive Director and, pursuant to paragraph 11.2.s, about recruitment and selection of an Executive Director.
11.5 Executive Director

In addition to being the ethics executive for the Commission for purposes of the PSOA, the Executive Director is responsible for:

  1. establishing, in consultation with the Chief Commissioner, performance measures and targets for the Commission and a performance review system for Commission staff;
  2. arranging for audits, as needed;
  3. managing the Commission’s day-to-day operations in accordance with the Code, TB/MBC, Public Service Commission and Ministry of Finance directives, accepted business and financial practices, and this MOU;
  4. applying policies so that public funds are used with integrity and honesty;
  5. establishing and applying a financial management framework for the Commission;
  6. establishing systems to ensure that the Commission operates effectively within its approved business plan;
  7. ensuring that the Commission has an appropriate risk management framework and mitigating strategy, to help provide sufficient assurance that program or service delivery objectives are met;
  8. supporting the Chief Commissioner and the other Commissioners in meeting their responsibilities including  delivery  of orientation and training;
  9. carrying out in-year monitoring of the Commission’s operational performance and reporting on it to the Chief Commissioner;
  10. advising the Chief Commissioner and Commissioners on the Commission’s compliance with the Code, TB/MBC and Ministry of Finance directives and Ministry policies and procedures;
  11. seeking support and advice from the Ministry, as appropriate, on day-to-day management issues;
  • consulting with the Deputy Minister, as needed, on matters of mutual importance, including services provided by the Ministry, TB/MBC and Ministry of Finance directives, and Ministry policies;
  1. cooperating with any periodic review undertaken in accordance with §8 of this MOU;
  • establishing a system for the retention of formal Commission documents and for making such documents publicly available, as appropriate;
  • receiving information from the Deputy Minister on emerging issues and events that concern, or could reasonably be expected to concern, the Chief Commissioner and the Executive Director in the exercise of their responsibilities;
  1. keeping the Chief Commissioner and the Deputy Minister advised about operational matters;
  2. preparing annual reports and business plans for the Commission as directed by the Chief Commissioner;
  3. ensuring that the Commission fulfills its mandate and operates within its approved budget allocation in doing so;
  4. preparing financial reports for the Commission;
  5. meeting performance objectives approved by the Chief Commissioner and the Deputy Minister;
  6. ensuring that Commission staff abide by the Canadian Charter of Rights and Freedoms and by all applicable federal, provincial and municipal laws, orders, regulations and bylaws, including, but not limited to, the Code, the Financial Administration Act, FIPPA, the French Language Services Act, the Pay Equity Act, the PSOA and the Accessibility for Ontarians with Disabilities Act;
  7. ensuring that the Commission has a process for responding, in a timely manner, to media inquiries and resolving promptly complaints or other concerns raised by the public that relate to the Commission’s operations; and
  8. ensuring that the Commission policies contemplated by section 30 of the Code are publicly available.

12.  Reporting requirements

12.1 Business Plan
  1. The Chief Commissioner shall ensure that the Minister is provided with the Commission’s annual business plans within the timelines the Minister establishes in accordance with the Ministry’s annual funding cycle.  
  2. The Chief Commissioner shall ensure that the Commission’s annual business plan fulfills the requirements of the AEAD.
  3. Every business plan requires the Minister’s approval.  The Minister shall review the Commission’s annual business plan and shall advise the Chief Commissioner promptly whether he or she concurs with the directions the Commission proposes and of such concerns as he or she may have about it.
  4. The Chief Commissioner shall ensure that the Commission’s business plan includes a system of performance measures and reporting on the achievement of the objectives set out in the business plan.  That system shall specify performance indicators, targets and time lines, indicate how they will be achieved, and implement annual base line reporting and, where appropriate, quarterly monitoring.
  5. The Minister may be required to submit an approved annual Commission business plan for review.  If this happens, the Minister shall notify the Chief Commissioner of the requirement.
12.2 Annual Reports
  1. The Chief Commissioner is responsible for ensuring that the Commission’s annual reports fulfill the requirements of the Code.
  2. In accordance with section 31.6 of the Code, the Chief Commissioner shall ensure that the Speaker of the Legislative Assembly receives for tabling in the Legislative Assembly the Commission’s annual report for a given fiscal year not later than June 30 of the next fiscal year.
  3. The Chief Commissioner shall give a copy of the report to the Minister at least 30 days before it is submitted to the Speaker.
12.3  Other Reports and Documents
  1. The Chief Commissioner is responsible for ensuring that financial and administrative reports and documents required by TB/MBC directives are submitted to the Minister for review and approval according to the prescribed time lines.
  2. At the request of the Minister or Deputy Minister, the Chief Commissioner shall supply such specific financial and administrative data and other related information, not including identifying information about any individuals, as may be required from time to time for purposes of the Ministry’s administration.

13. Communications

The parties to this MOU recognize that the timely exchange of information on the operations and administration of the Commission is essential to the Minister in meeting his or her responsibilities to report and respond to the Legislative Assembly on the affairs of the Commission.  They recognize, as well, that it is essential that the Chief Commissioner be kept informed about government initiatives and broad policy directions that may affect the Commission’s mandate and functions.

The Minister and the Chief Commissioner therefore agree as follows.

  1. Nothing in this section of this MOU shall require any discussion or exchange of information between Commission personnel and the Minister, Deputy Minister or Ministry staff about specific current, past or future inquiries or determinations that lie within the Commission’s statutory authority.
  2. The Minister’s office shall redirect to the Commission without comment inquiries it receives about specific human rights matters in progress at the Commission.  Any response the Minister’s office makes to the inquiring party shall indicate that the inquiry has been forwarded to the Commission and that the Minister cannot interfere with a Commission proceeding.
  3. Except where doing so would compromise the Commission’s independence in the exercise of its statutory mandate or its ability to function quickly and effectively, the Chief Commissioner shall keep the Minister advised, in a timely manner, of all planned events and issues that concern or can reasonably be expected to concern the Minister in the exercise of the Minister’s responsibilities.
  4. The Minister shall consult with the Chief Commissioner, as appropriate, on government policy initiatives or legislation being considered by the government that may affect the Commission’s mandate or functions.
  5. The Minister and the Chief Commissioner shall consult with one another, as appropriate, on public communications strategies and publications relating to human rights in Ontario and shall keep one another informed, as appropriate, of the results of relevant consultations and discussions, focused and general, with the public.
  6. The Minister and the Chief Commissioner shall meet at least quarterly, or more frequently as requested, to discuss issues relating to the fulfillment of the Commission’s mandate.
  7. The Deputy Minister shall meet at least quarterly with the Executive Director and/or the Chief Commissioner to discuss issues relating to the efficient operation of the Commission and the provision by the Ministry of services to the Commission.
  8. The Commission’s annual business plan shall include a communications strategy.  Commission staff shall respond promptly to public and media inquiries, complaints and concerns about the Commission’s operations and activities.
  9. The Commission shall provide the Minister, as early as possible but, unless the Minister or the Deputy Minister consents to some shorter length of time, always at least three (3) days before public release, with advance copies, of any Commission-approved report or policy that the Commission proposes to make public.

14.  Administrative arrangements

 14.1 Government of Ontario Directives

The Chief Commissioner shall ensure that the Commission and its staff operate in accordance with the Code, TB/MBC and Ministry of Finance directives, Public Service Commission directives under the PSOA and Ministry financial and administrative policies and procedures.

14.2 Legal Services
  1. The Commission employs its own counsel but may, in rare cases, require private legal services.  Where these services do not involve litigation or an inquiry connected to its mandate under the Code, including services involving contractual negotiations for IT services or a civil action claim for damages against a Commission member or employee, the Commission shall retain counsel in accordance with the Ministry of the Attorney General's Corporate Operating Policy on Acquiring and Using Legal Services and related guidelines.   Where these services involve an inquiry under section 31 of the Code or litigation connected to the Commission's exercise of its mandate under the Code, such as cases in which the Commission has initiated an application or is an intervener in legal proceedings at the Human Rights Tribunal of Ontario, the Commission shall retain counsel in accordance with the principles set out in the above noted Corporate Operating Policy and guidelines.  For greater certainty, this means that the Commission will determine for itself whether to retain, and whom to retain as, private sector counsel but will do so only where circumstances indicate a conflict of interest, cost efficiency or a need for specialized expertise and only in accordance with the rates set out in the Private Sector Retention rates chart. The Commission agrees to retain, for audit purposes, a list of the instances in which it retains private sector legal services, the reasons for the retention, the nature of the work performed and cost.  This list shall be produced to the Ministry upon request, in a way that would not interfere with the solicitor-client relationship or ongoing litigation.  It can also be reviewed by both parties at any time upon agreement and it shall be reviewed by both parties at the time that this MOU is subject to revision or renewal.
  2. Lawyers employed by the Commission are recognized as members of the Association of Law Officers of the Crown.
  3. Where the Commission is awarded legal costs in a Court or Tribunal proceeding it shall forward those costs to the Consolidated Revenue Fund in accordance with the Proceedings Against the Crown Act.  Where the Commission is ordered to pay legal costs by a Court, or by a Tribunal and the Tribunal Order is filed with the Superior Court of Justice, the Commission shall notify the Director of the Crown Law Office, Civil, who will make arrangements for the amount to be paid from the Consolidated Revenue Fund in accordance with section 22 of the Proceedings Against the Crown Act.
  4. Where the Commission, the Chief Commissioner, a Commissioner or an employee of the Commission is named as a party in an action for damages, the Agency shall notify the Director of the Crown Law Office, Civil and a decision shall be made as soon as practicable as to whether or not that office shall deal with the matter.
14.3 Delegation of Human Resources Management Authority under the PSOA
  1. Sections 44 and 55(1)(c) of the PSOA authorize the Public Service Commission to delegate human resources authority in respect of Commission public bodies to the Deputy Minister and/or to an individual prescribed by regulation.  Regulation 376/07 designates the Executive Director as the individual to whom such authority may be delegated in respect of Commission employees.  In Appendix A1 of the document entitled Subdelegation of Powers, Duties and Functions Templates, attached for convenience as Appendix II of this MOU, the Public Service Commission has delegated some human resources authority in respect of Commission employees to the Executive Director and some to the Deputy Minister.
  2. The Executive Director and the Deputy Minister are responsible for exercising this authority in compliance with any relevant legislation, directives or policies, in accordance with the Commission’s mandate, and within the parameters of the delegated authority.
14.4 Freedom of Information and Protection of Privacy
  1. Section 1 and the Schedule of Regulation 460, R.R.O. 1990, as amended, designate the Attorney General as the institution head of the Commission for purposes of FIPPA.  The Minister has delegated his authority as institution head to the Chief Commissioner.
  2. The Commission, as represented by the Chief Commissioner, warrants and agrees that any personal information, as defined under the FIPPA, that it collects shall be used and disclosed only in pursuit of the Commission’s objects and for no other purposes.  The Commission further warrants that it will have reasonable measures in place to ensure the security and confidentiality of all the personal information it holds.
14.5 Records Management
  1. The Executive Director is responsible for ensuring that:
  1. a system is in place for the creation, collection, maintenance and disposal of records; and
  2. the Commission complies with the TB/MBC Management of Recorded Information Directive and the Archives and Recordkeeping Act, 2006, S.O. 2006, c. 34, Schedule A.
  1. The Commission has been designated under FIPPA and is required to meet the standards set out there for the creation, collection, maintenance and disposal of records.  The Executive Director shall ensure that the Commission has a system for meeting these standards in doing these tasks.
  2. The Commission shall keep and maintain, in a manner consistent with generally accepted accounting principles and clerical practices, all financial records, invoices and other financially relevant documents related to its activities or to funding provided by the Ministry.  The Commission shall manage such records and keep them available for the Ministry’s review for seven years from the date of the creation of the records.
  3. The Commission shall maintain and manage all non-financial documents and records relating to its activities or to funding received from the Ministry, including any records it receives or creates relating to report subjects, in a confidential manner pursuant to defined processes of retention and disposal consistent with the TB/MBC Directive on Management of Recorded Information, the Archives and Recordkeeping Act, and other applicable legislation.
  4. The Commission shall collect and use personal information, as defined in FIPPA, in accordance with Part III of FIPPA.
  5. The Commission shall permit the Ministry, upon reasonable notice, to inspect and copy any financial records, invoices and other financially-related documents, and any non-financial documents in the Commission’s possession and control that do not disclose identifying information about individuals, that relate to Commission funding or otherwise to the Commission’s administrative activities.
  6. If, after execution of this MOU, the Commission’s mandate in relation to information management expands, the Commission shall, at the Ministry’s request, submit to a Privacy Impact Assessment.
  7. The Commission shall ensure that every contract it enters on behalf of Her Majesty the Queen in right of Ontario for data collection and processing is specific about sources, entities and transfer from collection to destruction.
14.6 Client/Customer Service

The Commission has in place a formal process, consistent with the government’s service quality standards, for responding to complaints about the quality of the services it provides.  Its annual business plan shall include performance measures and targets in respect of customer service and complaint response.  This process is separate from any statutory provisions about review or reconsideration of any exercise of the Commission’s statutory powers.

15. Financial arrangements

15.1 Funding
  1. The Commission is funded from the Consolidated Revenue Fund pursuant to an appropriation authorized by the Legislative Assembly.
  2. The Chief Commissioner shall prepare and deliver to the Minister, in sufficient time for the Minister to analyze and approve them, annual estimates of the Commission’s expected expenditures for inclusion in the Ministry’s Results Based Plan. The Minister may, after appropriate consultation with the Chief Commissioner, alter these estimates as required.
  3. The Commission’s financial procedures shall accord with the Code, TB/MBC and Ministry of Finance directives and guidelines, and other applicable government direction.
  4. The Commission shall obtain the Minister’s approval and, pursuant to section 28 of the Financial Administration Act, the written approval of the Minister of Finance before entering into any financial arrangement or commitment, guarantee, indemnity or similar transaction that may increase, directly or indirectly, the indebtedness or contingent liability of the government or the Crown in right of Ontario.
  5. When the Minister of Finance orders it pursuant to section 16.4 of the Financial Administration Act, the Commission shall pay into the Consolidated Revenue Fund any money that the Minister of Finance determines to be surplus to its needs.
15.2  Financial Reports

The Chief Commissioner shall provide, on instruction from the Minister of Finance, the Commission’s financial information for consolidation into the Public Accounts.  In addition, he or she shall provide annual financial statements to the Minister and shall include them as part of the Commission’s annual report. 

15.3  Goods and Service Tax (GST)

The Commission is not required to pay GST.

16.  Audits and review arrangements 

  1. The Ontario Internal Audit Division may carry out internal audits as authorized by the Ministry’s Audit Committee or the Corporate Audit Committee.  Under the Auditor General Act, the Auditor General of Ontario may audit any aspect of the Commission’s operations at any time.
  2. The Chief Commissioner may request, at the Commission’s expense, an external audit of the Commission’s financial transactions or management controls.
  3. The Minister and the Chief Commissioner agree to share with one another the results of any audit of the Commission, regardless of which of them receives it first.  The Commission shall give the Minister a copy of its response to the audit report and to any related recommendations and shall advise the Minister annually on any outstanding audit recommendations.

17.  Staffing 

  1. The Commission is staffed by persons employed under Part III of the PSOA.
  2. Permanent, full-time Commission employees participate in the Public Service Pension Plan.
  3. The Commission, in its dealings with staff employed under the PSOA, is subject to the Code, TB/MBC human resources directives, and Public Service Commission directives authorized by the PSOA.

18.  Liability protection and insurance

The government’s Protection Program covers the Commission.

Original SIGNED:

Barbara Hall, Chief Commissioner

The Honourable Chris Bentley,
Attorney General of Ontario

 

Appendix I
Relevant provisions of the Code

Preamble

Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario;

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

 . . .

Part III: The Ontario Human Rights Commission

The Commission           

27.  (1)  The Ontario Human Rights Commission is continued under the name Ontario Human Rights Commission in English and Commission ontarienne des droits de la personne in French.  2006, c. 30, s. 4.

Composition

 (2)  The Commission shall be composed of such persons as are appointed by the Lieutenant Governor in Council.  2006, c. 30, s. 4.

Appointment

 (3)  Every person appointed to the Commission shall have knowledge, experience or training with respect to human rights law and issues.  2006, c. 30, s. 4.

Criteria

 (4)  In the appointment of persons to the Commission under subsection (2), the importance of reflecting, in the composition of the Commission as a whole, the diversity of Ontario’s population shall be recognized.  2006, c. 30, s. 4.

Chief Commissioner

 (5)  The Lieutenant Governor in Council shall designate a member of the Commission as Chief Commissioner.  2006, c. 30, s. 4.

Powers and duties of Chief Commissioner

 (6)  The Chief Commissioner shall direct the Commission and exercise the powers and perform the duties assigned to the Chief Commissioner by or under this Act.  2006, c. 30, s. 4.

Term of office

 (7)  The Chief Commissioner and other members of the Commission shall hold office for such term as may be specified by the Lieutenant Governor in Council.  2006, c. 30, s. 4.

Remuneration

  (8)  The Chief Commissioner and other members of the Commission shall be paid such remuneration and allowance for expenses as are fixed by the Lieutenant Governor in Council.  2006, c. 30, s. 4.

Employees

 (9)  The Commission may appoint such employees as it considers necessary for the proper conduct of its affairs and the employees shall be appointed under the Public Service Act.  2006, c. 30, s. 4.

Note: On the later of the day the Statutes of Ontario, 2006, chapter 35, Schedule C, section 132 comes into force and the day the Statutes of Ontario, 2006, chapter 30, section 4 comes into force, subsection (9) is amended by the Statutes of Ontario, 2006, chapter 35, Schedule C, subsection 132 (5) by striking out “the Public Service Act” at the end and substituting “Part III of the Public Service of Ontario Act, 2006”.  See: 2006, c. 35, Sched. C, ss. 132 (5), 137 (1).

Evidence obtained in performance of duties

 (10)  A member of the Commission shall not be required to give testimony in a civil suit or any proceeding as to information obtained in the performance of duties under this Act.  2006, c. 30, s. 4.

Same, employees

(11)  An employee of the Commission shall not be required to give testimony in a civil suit or any proceeding other than a proceeding under this Act as to information obtained in the performance of duties under this Act.  2006, c. 30, s. 4.

Delegation

 (12)  The Chief Commissioner may in writing delegate any of his or her powers, duties or functions under this Act to any member of the Anti-Racism Secretariat, the Disability Rights Secretariat or an advisory group or to any other member of the Commission, subject to such conditions as the Chief Commissioner may set out in the delegation.  2006, c. 30, s. 4.

Divisions

 (13)  The Commission may authorize any function of the Commission to be performed by a division of the Commission composed of at least three members of the Commission.  2006, c. 30, s. 4.

Acting Chief Commissioner

 28.  (1)  If the Chief Commissioner dies, resigns or is unable or neglects to perform his or her duties, the Lieutenant Governor in Council may appoint an Acting Chief Commissioner to hold office for such period as may be specified in the appointment.  2006, c. 30, s. 4.

Same

 (2)  An Acting Chief Commissioner shall perform the duties and have the powers of the Chief Commissioner and shall be paid such remuneration and allowance for expenses as are fixed by the Lieutenant Governor in Council.  2006, c. 30, s. 4.

Functions of Commission

 29.  The functions of the Commission are to promote and advance respect for human rights in Ontario, to protect human rights in Ontario and, recognizing that it is in the public interest to do so and that it is the Commission’s duty to protect the public interest, to identify and promote the elimination of discriminatory practices and, more specifically,

            (a)       to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;

            (b)       to develop and conduct programs of public information and education to,

            (i)         promote awareness and understanding of, respect for and compliance with this Act, and

            (ii)        prevent and eliminate discriminatory practices that infringe rights under Part I;

            (c)        to undertake, direct and encourage research into discriminatory practices and to make recommendations designed to prevent and eliminate such discriminatory practices;

            (d)       to examine and review any statute or regulation, and any program or policy made by or under a statute, and make recommendations on any provision, program or policy that in its opinion is inconsistent with the intent of this Act;

            (e)       to initiate reviews and inquiries into incidents of tension or conflict, or conditions that lead or may lead to incidents of tension or conflict, in a community, institution, industry or sector of the economy, and to make recommendations, and encourage and co-ordinate plans, programs and activities, to reduce or prevent such incidents or sources of tension or conflict;

            (f)        to promote, assist and encourage public, municipal or private agencies, organizations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination;

            (g)       to designate programs as special programs in accordance with section 14;

            (h)       to approve policies under section 30;

            (i)         to make applications to the Tribunal under section 35;

            (j)         to report to the people of Ontario on the state of human rights in Ontario and on its affairs;

            (k)        to perform the functions assigned to the Commission under this or any other Act.  2006, c. 30, s. 4.

Commission policies

30.  The Commission may approve policies prepared and published by the Commission to provide guidance in the application of Parts I and II.  2006, c. 30, s. 4.

. . .

Annual report

 31.6  (1)  Every year, the Commission shall prepare an annual report on the affairs of the Commission that occurred during the 12-month period ending on March 31 of each year.  2006, c. 30, s. 4.

Report to Speaker

 (2)  The Commission shall submit the report to the Speaker of the Assembly no later than on June 30 in each year who shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session.  2006, c. 30, s. 4.

Copy to Minister

 (3)  The Commission shall give a copy of the report to the Minister at least 30 days before it is submitted to the Speaker under subsection (2).  2006, c. 30, s. 4.

Other reports

  31.7  In addition to the annual report, the Commission may make any other reports respecting the state of human rights in Ontario and the affairs of the Commission as it considers appropriate, and may present such reports to the public or any other person it considers appropriate.  2006, c. 30, s. 4.

See: 2006, c. 30, ss. 4, 12 (2).

Appendix II

Subdelegation of powers, duties and functions templates

Public Services of Ontario Act, 2006
Public Service Commission
August, 2007
[excerpts]

. . .

 

APPENDIX A1

Public Service Commission
Delegation of powers, duties and functions
to
prescribed individuals and chairs and deputy ministers
in respect of public servants appointed to work in
Commission public bodies
Pursuant to subsections 44(4), (5), (9) and (10) and clause 55(1)(c) of the

Public Service of Ontario Act, 2006 (PSOA)

NOTE

PARAGRAPHS 1 AND 2, AND ONLY ONE OF PART A, B, C OR D, SHALL APPLY TO ANY
ONE COMMISSION PUBLIC BODY (THEREFORE, PARTS A, B, C AND D EACH BEGINS
WITH PARAGRAPH #3)

. . .

 

Delegation to deputy ministers and prescribed individuals in respect of public servants appointed to work in a Commission public body pursuant to PSOA subsections 44(4), (5), (9), (10)

1. This instrument sets out the Delegation of Authority under the Public Service of Ontario Act, 2006, (the Act) made under subsection 44(4) of the Act by the Public Service Commission (PSC) to the persons described in Parts A, B, C and D of this document effective the date that the Act is proclaimed.

2. All references to section numbers in this document refer to section numbers of the Act.

PART A: For use where delegations are to a PSC delegate who is a public servant in the Senior Management Group and to a deputy minister

Delegation to prescribed PSC delegate in the Senior Management Group

3. Pursuant to clause 44(4)(a), the PSC delegates to the individual prescribed under clause 55(1)(c), if that person is in a position classified within the Senior Management Group, the PSC’s powers, duties and functions in respect of public servants appointed to work in the Commission public body for which that person was prescribed, as follows:

PSOA Powers, Duties and Functions

In Relation To

Subsections 32(2), (3)

and (4)

Appointing persons to employment by the Crown, for a fixed term or otherwise, to work in a Commission public body, as prescribed under clause 8 (1)(b) of the Public Service of Ontario Act, 2006, in classifications other than Senior Management Group 3 or 4, Information Technology Executive 3 or 4, Financial Management and Control Group 3 or Crown Counsel 5

 

Reappointing for one or more further terms persons appointed for a fixed term

Section 34

Imposing disciplinary measures for cause (including suspension but not dismissal)

Subsection 36(1)

Conducting an investigation to determine cause for the purposes of section 34

Subsection 36(2)

Pending the conclusion of an investigation, suspending the public servant for a period not exceeding the period prescribed under clause 55(1)(a)

Subsection 36(3)

Withholding the public servant’s salary, wages or any other remuneration, including benefits, during the suspension under  section 36; if he or she considers it appropriate to do so, and at  the end of the investigation, reimbursing amounts that were withheld if he or she considers it appropriate to do so

Subsection 37(1)

Where a public servant is appointed to employment for a term that is not fixed, directing that the public servant be on probation for a period of not more than one year

Subsection 41(1)

Receiving at least two weeks’ notice in writing from a public servant of his or her intention to resign from his or her position

Subsection 41(2)

Receiving from a public servant notice in writing of his or her withdrawal of the notice of intention to resign at any time before its effective date if no person has been appointed or selected for  appointment to the position held by the public servant; and Approving the withdrawal of the resignation

4. Dismissal Delegation to Deputy Minister

a. Pursuant to subsection 44(4), the PSC delegates to the deputy minister of the ministry whose minister is responsible for a Commission public body the power to dismiss a public servant under sections 34, 38 and 39 appointed to employment under subsection 32(2) to work in that Commission public body.

b. Pursuant to subsection 44(10), a deputy minister shall obtain PSC permission to exercise his or her discretion in respect of subsection 38(1) for a regular employee who is employed in the Senior Management Group 2, 3 or 4, Information Technology Executive 2, 3 or 4, Financial Management and Control Group 2 or 3, Crown Counsel 5 or Ontario Provincial Police Commissioner 1 classifications.

c. Pursuant to subsection 44(10), the deputy minister may not subdelegate the delegation in paragraph 4a) of this document with respect to subsection 38(1).

5. Abandonment of Position Delegation to Deputy Minister

Pursuant to subsection 44(4), the PSC delegates to the deputy minister whose minister is responsible for a Commission public body the power under subsection 42(1) to declare in writing that a public servant appointed to employment under subsection 32(2) to work in that Commission public body has abandoned his or her position and that his or her employment by the Crown is terminated.

6. Pursuant to subsection 44(9), the PSC imposes the following restriction on a deputy minister’s entitlement under subsection 44(6) to subdelegate to one or more public servants employed under section 32 who work in his or her ministry any of the powers, duties or functions delegated under subsection 44(4) in respect of public servants appointed to work in a Commission public body:

  • A deputy minister may only subdelegate the powers, duties and functions set out in paragraphs 4 and 5 to one or more public servants in positions in classifications within the Senior Management Group or Crown Counsel 5.

. . . 

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