Litigation and inquiry strategy

The Ontario Human Rights Commission works to promote, protect and advance human rights in Ontario.  The Human Rights Code provides a range of different tools that the OHRC may use, including, among others, policy development, research, public education and training, human rights inquiries and legal action.

The OHRC has unique legal powers under the Human Rights Code.  We may conduct inquiries, make an application (a complaint) directly to the Human Rights Tribunal of Ontario to allege discrimination and seek a Tribunal order, or intervene in applications before the Tribunal. The OHRC may also take part in cases before other administrative tribunals and courts.  (For our powers under the Code, see here: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h19_e.htm#s29).

This Litigation and Inquiry Strategy sets out when and how the OHRC decides to conduct an inquiry or take an application to the Human Rights Tribunal or when to intervene in a legal proceeding. 

What is an Inquiry?

The Code says the OHRC can conduct an inquiry to:

  • look into incidents of or conditions of tension or conflict in a community, institution 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.
  • look into programs, policy and practices made under statute for consistency with the Code and make recommendations.

Inquiries can be large or small, simple or complex.  They could include:

  • private letters to an organization asking about an issue and requesting a response or more information
  • public meetings
  • online-questionnaires or feedback forms
  • fact-finding, investigation, and requesting and obtaining information

What are Commission-initiated Applications?

The OHRC may make its own applications directly to the Tribunal to allege discrimination and ask for a Tribunal order, or intervene in other applications before the Tribunal.  Section 35 of the Code says the OHRC may intervene as a full party to an application at the Tribunal if the applicant gives their permission.  The OHRC can then participate in all stages of the proceeding, including calling evidence, cross-examining witnesses, presenting written and oral submissions and any negotiations or mediation. 

How do we choose which cases to be involved with?

Every year the Commission sets high level goals and priority issues to meet our statutory mandate.  However, human rights cases and issues for inquiry often emerge that are clearly important but may not fall within our current priority areas.

We look at new issues on a case-by-case basis to decide if any response is needed or whether an inquiry, intervention or Commission-initiated application at the Human Rights Tribunal is called for. We consider:

  • Would this support our statutory mandate, high-level strategic goals and priority areas of work?
  • would it complement current, future or potential activities of the Commission?
  • Will it have a broad, systemic impact?
  • does it raise significant  issues of public policy or public interest from a human rights perspective?
  • will it benefit vulnerable or marginalized people protected by the Code?
  • what is the likely outcome?

o   Will it shape, clarify or advance human rights law in Ontario?

o   Is it an issue of such importance that Commission involvement is required because of:

  • the seriousness or importance of the matter?
  • the complexity of issue?
  • Could it be done within current OHRC resources?

How do we spot emerging issues?

Our Issues Management team monitors developments in human rights and related social issues, proposed provincial legislation, noteworthy Tribunal and court decisions, and other factors that could affect human rights in Ontario. We identify potential matters for litigation or inquiry through:

  • issues raised in news media and other electronic publications
  • cases scheduled to be heard by courts or tribunals as well as court and tribunal decisions
  • notices from the Tribunal of applications that may raise significant human rights issues through, for example, interim decisions identifying opportunities for potential Commission intervention
  • requests for Commission initiated-applications, inquiries or interventions from the public. To make a request contact legal@ohrc.on.ca
  • issues identified by staff and Commissioners 
  • information from the Canadian Association of Statutory Human Rights Agencies about potential inquiries and legal proceedings
  • opportunities from the Human Rights Legal Support Centre (which provides free legal advice to individuals who think they may have a discrimination claim)
  • stakeholders or other partners also identify opportunities 

Some examples of OHRC Inquiries and Litigation

  • The Commission intervened as a full party in JT. v. Hockey Canada, an HRTO application about locker room access for trans amateur hockey players.  The Commission and applicant negotiated a settlement requiring Hockey Canada to allow all players in Ontario to access locker rooms in accordance with their gender identity, review and revise its procedures to protect privacy about players’ trans status, and provide training to all Ontario coaches as trainers about gender identity and related discrimination and harassment.
  • Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) at the Supreme Court of Canada, involved a student with severe dyslexia whose specialized learning program was cut by the school district because of budgetary constraints.  The OHRC argued that the selection of a comparator group was not required and the service at issue was general education, not special education.  Both arguments were adopted by the Supreme Court, which ultimately held that the school district’s action amounted to discrimination.   
  • Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII) at the Court of Appeal for Ontario,  involved two Black lawyers who were singled out and approached in an aggressive manner by a librarian in the Peel Law Association lounge.  The OHRC’s argument about the three-part test for a prima facie case of discrimination was confirmed by the Court of Appeal, which rejected the stricter test of discrimination applied by the Divisional Court.  The decision also made clear that racial profiling is a form of everyday racism.
  • We intervened in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (CanLII) to further access to justice.  The Tribunal considered the interpretation and application of section 45.1 of the Code in the context of previously filed public complaints under the Police Services Act (“PSA”) to the Office of the Independent Police Review Director about the conduct of police officers.  The Tribunal accepted the OHRC argument that the reasonable expectations of the parties had to be considered. It exercised its discretion not to dismiss the Tribunal applications under section 45.1 and confirmed that discipline under the PSA and relief to victims of discrimination under the Code can both be pursued. 
  • Jahn v. Ministry of Community Safety and Correctional Services, at the Tribunal, dealt with mental health and the corrections system. We addressed the systemic issues that Ms. Jahn raised in relation to appropriate mental health services and the placement of people with mental illness in segregation. The settlement between the OHRC, Ministry and Ms. Jahn will help to ensure the proper identification and care of women with mental illness in provincial correctional institutions.

o   In August of 2013, the Commission intervened in TB, MSB, and JBS v. Halton District School Board and Halton Student Transportation Services at the Tribunal.  Following settlement negotiations with the applicants and the OHRC, the school board and transportation service agreed to move the children’s bus stop closer to the family home, seek the Commission’s involvement in preparing and delivering training on human rights accommodation and inclusivity, amend their transportation policies to accommodate parents with Code-related needs, and recommend similar policy amendments to the Halton Catholic District School Board.

  • We held an inquiry into a rental housing licensing bylaw in the City of Waterloo in 2012, which imposed, among other things, per-person floor area requirements, gross floor area requirements, and minimum separation distances on certain rental units with three or more occupants.  As a result of the inquiry and subsequent negotiations, the City made a number of changes including requiring that the impact on tenants be considered before it revokes or suspends a licence, committing to monitoring the impact of the bylaw on Code-protected groups with the assistance of an expert, and making changes that make it easier for people to share bedrooms.    
  • In January 2014, the OHRC participated in an inquest into the deaths of three individuals with mental health disabilities, and issued a report in February of 2014 to help raise public awareness about how police use of force uniquely affects people with mental health disabilities. 
  • OHRC litigation has led to  partnerships to create and sustain human rights organizational change with the Ministry of Community Safety and Correctional Services. 
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