Some of the effectiveness factors supporting the Paris Principles were addressed directly and in some depth by consultees. These include independence, defined jurisdiction, cooperation, and accessibility. These considerations affect the operation of all aspects of the human rights system and are addressed below.
Other effectiveness factors were not addressed as explicitly; these include operational efficiency, adequate power, and accountability. These principles also have a broad impact, and surfaced as considerations and key factors in discussions regarding the human rights complaints mechanism, and will be referenced as appropriate in Section C of this Report
The Paris Principles indicate that independence is a cornerstone of any effective state human rights institution. An effective human rights system requires the establishment of state institutions that are capable of acting independently of power brokers in society, particularly government. By definition, state institutions are constituted by government and hence are not fully independent. However, this principle needs to be guaranteed, preferably in the founding charters of these institutions, to ensure that an institution maintains adequate independence to discharge its responsibilities effectively. Independence has been formulated to include three areas of autonomy involving: legal and operational, financial, and appointment and dismissal matters.
Many consultees felt that the OHRC is insufficiently independent, and that this has a significant impact on its effectiveness.
In my view the Commission is not independent of the “power brokers’ in our society … the Commission is vulnerable to political considerations and extraneous factors in its decision making process. As a result, the Code’s enforcement is ineffective and selective.
The most common recommendation for instituting further independence was the call for the state human rights institution to report directly to parliament, as opposed to the government and its ministries.
The OHRC appears to report to the Office of the Attorney General. There should be no perception that a government office could interfere with the operations of the Commission, even if this, in practice, does not happen. The Code should be amended to ensure that the Commission reports directly to Parliament.
Several consultees pointed to the lack of independence as exemplified by the inability of the OHRC to effectively deal with the issue of discrimination in funding for religious education in the province, where the Catholic school system is funded while other faith-based schools are not. They point to the United Nations confirmation of this practice as discriminatory and to the silence of the OHRC on this issue.
Other measures identified to enhance independence of the human rights system included: revising appointment processes for Commissioners and adjudicators; ensuring the Commission’s ability to control its own budget and resource allocations, and severing employees from the government public service.
Many stakeholders are concerned that the current human rights system does not ensure that state institutions maintain international standards for independence and that this has been detrimental to the effectiveness of the system, and believe that consideration should be given to reviewing and strengthening the independence of state institutions involved in the system.
2. Substantive Jurisdiction and International Obligations
Based on the Paris Principles and related guidelines, an effective human rights framework must have a clearly defined jurisdiction for established state institutions. Such a definition of jurisdiction should cover off a wide mandate to protect and promote human rights, including the following specific functions.
- Review legislation and administrative decisions;
- Examine alleged violations of human rights;
- Prepare reports;
- Express opinions on the position or reaction of government to human rights evaluations;
- Conduct research, education, and publicity programs;
- Promote and ensure the harmonization of legislation, regulations and practices with international human rights instruments; and
- Protect and promote the public interest.
A number of consultees suggested that a review of the substantive grounds covered by the Code was necessary, and that grounds indicated by international conventions but not currently included in the Code should be protected, such as social condition and political affiliation rights. As well, human rights institutions should be given the mandate to protect economic, social and cultural rights.
The … human rights system can only adequately fulfil its mandate when its subject matter jurisdiction is broadened to include the protection of economic, social, cultural and political rights. Canada is a party to at least two international instruments that seek to preserve and protect such rights: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Finally, although there were some dissenting voices, many suggested that direct and explicit reference should be made to international conventions in human rights legislation.
The Code does not refer to International Human Rights Treaties. Many Commissions reference International Human Rights Treaties directly in their mandating legislation. Even if the mandate of the Commission is not enlarged, it would be symbolically important to reference international treaties as the source of the rights being protected.
Some stakeholders are concerned that the current human rights system in Ontario does not afford protections for social condition and political affiliation, as called for by international conventions to which Canada is a signatory and that consideration should be given to how such protections can be implemented into the system.
3. Integration of Functions
As indicated above, the Paris Principles call for the establishment of state human rights institutions that possess a wide mandate to protect and promote human rights. It is generally recognized on the international level that promotion and protection functions build on each other and are most effectively fulfilled when intimately related to each other and integrated in a single institution.
Clearly, the Paris Principles, first of all, require promotion and protection, the guidelines for national institutions, for the promotion and protection of, so those two functions have to fall within any agency that hopes to meet the Paris Principles. The list of functions that are provided in the Paris Principles are there because they are mutually reinforcing … The investigative function informs education, or it should, in many ways, directly and in determining perhaps where education is, in what areas, what issues, as a requirement for a remedy. The same thing for policy. And the reverse is also true. And I think that if you don't have that symbiotic relationship in one body, then you lose something.
This support for an integrated approach for promotion and protection functions was echoed by a number of OHRC staff and some stakeholders.
In my experience, there is considerable benefit in the current integrated approach that combines the Commission’s different investigation, legal, and policy functions. The Investigation branch is able to draw on the combined expertise from the Legal and Policy branches when investigating and analysing a complaint, permitting shorter and more focused investigations; the policy branch has access to the pragmatic perspective of the other two branches in designing policies, and the legal branch, having been involved in the creation of Commission policies, is better able to promote advancement of human rights jurisprudence
Most consultees did not take a strong position on this issue. However, some felt that, at least in some realms, there were significant risks and downsides to integration, arguing that the processing of individual complaints inevitably swamps the ability to carry out other functions.
So keeping and fixing the complaint-based model is the most conservative option that we could adopt, and if we are going to keep a complaints model, in my view, we need a separation of functions, not an integration of functions. So separation would allow the government-funded agency to be proactive in public advocacy, in complaints initiation, in inquiries, in broad issues.
Some referred to the potential biasing effects of the multiple hats currently worn by the OHRC, particularly the housing of a disposition function within the same body as an advocacy function.
Under the current system, there is an institutional conflict between the Commission’s role as decision maker and advocate. In a similar vein, there are the competing goals of advancing the public interest, on the one hand, and protecting and enforcing individual rights … Freeing the Commission of its investigatory function would allow it to embrace its role as advocate and champion of human rights unencumbered by the yoke of neutrality.
There would be many in the respondent community who would view the housing of advocacy, education and addressing systemic issues in the same house as the investigative or adjudicative gatekeeping function as a conflict of interest, as an abuse, as biased.
On the other hand, OHRC staff noted that the combined investigation/litigation role is common to government institutions. For example, employment standards, health and safety and labour relations officers all have the power to investigate and make determinations as to whether their enabling act has been breached, and where an order is challenged, lawyers from the Ministry of Labour defend the order before the Labour Relations Board.
Stakeholders are divided on the value of full integration of functions within a state human rights institution, so that careful consideration must be given to maximizing the strengths of integration and minimizing the weaknesses in any review and reform of the human rights system.
One of the functions cited by the Paris Principles and related guidelines is that of promoting and ensuring the harmonization of legislation, regulations and practices with international human rights instruments. In addition, one of the effectiveness factors identified in United Nations guidelines is that of “Cooperation”. Accordingly, an effective human rights system requires the establishment of state institutions that are willing and able to develop and strengthen cooperative relationships with other organizations and groups involved in the system.
Almost all consultees agreed on the value of “harmonization” of the system and tended to employ the term at different times referring to either or both aspects of harmonization of legislation, regulations, and practices with international instruments, and the fostering of cooperative relationships and coordination of key elements of the human rights system. As a result, several areas of emphasis arose around the theme of harmonization.
a) A Cooperative Approach to Promotion and Education
Some consultees called for greater cooperation with other bodies on the promotion and education of human rights, such as the Ministry of Citizenship’s Policy Services Branch, the Ontario Women’s Directorate, and the federal Office for Disability Issues.
The OHRC should consult with other government bodies to minimize duplication of information that each body provides about human rights and identify programs that are complementary to the programs provided by the OHRC.
As well, it was suggested that the OHRC could work more closely with NGOs and other community organizations.
Some union representatives called for the development of mandatory human rights committees in cooperation with the OHRC, as a further means at extending and harmonizing human rights enforcement into the daily activities of workplaces.
The Union recommends that the Code be amended to establish mandatory human rights committees in the workplace. We submit that such committees could operate in the same manner as mandatory health and safety committees under occupational health and safety legislation … With proper, education, training, and monitoring by the Commission, these committees could have a positive impact on preventing discrimination in the workplace and resolving issues without the necessity of the filing of a human rights complaint.
b) Harmonizing the Work of Administrative Tribunals
Much of the discourse around harmonization related to the relationship between other administrative tribunals and the provisions of the Code. Questions arose as to how far other tribunals are able to apply the Code and the Charter, especially where their legislation does not specifically authorize them to do so. Some pointed out that labour grievance arbitrators are already required to consider the Code in their decision-making processes by the Labour Relations Act. Most acknowledged that tribunals already had the ability to apply the Code and Charter and to some degree the obligation, but did not have the remedial powers of the HRTO.
In the end, most consultees indicated that the role of other tribunals in applying Code principles must be strengthened and clarified.
[T]here should be a mandate imposed on other statutory bodies who have the power to affect this to make sure that their decisions don't discriminate or create barriers or whatever. I also don't think it is a huge leap, though I think it would be good to codify it so they get it.
All administrative tribunals – indeed all public and private agencies – have a role in promoting human rights. In the case of administrative tribunals such as the Ontario Rental Housing Tribunal and the Ontario Labour Relations Board, etc. it is important that these tribunals be guided in all their decision-making processes by the principles of the Charter as well as the Code.
Some raised concerns as to the willingness of other tribunals to actually deal with human rights matters, due to rigid and narrow interpretation of their founding legislation.
I think it is clear that everyone who has a mandate under a specific statute kind of sticks to that and they have blinders on with respect to everything else. And it is problematic, there is no question.
Others cautioned that most tribunals lack understanding of human rights legal principles and are presently incapable of applying the Code and the Charter and, as a result, are reluctant to do so.
… it is a legal fact that every tribunal should be considering the Human Rights Code and every administrative tribunal should be considering the Charter and they should be making sure that their decisions are consistent with both, full stop. It is not complicated, but the kind of smoke and mirrors that you get met with when you try to advance. And of course, in many of these tribunals, they are non-lawyers, and so they are going, "Oh, my God, I can't look at the Code. I can't look at the Charter. Like there is no way I can consider that." And then their fear just gets fed into, and it is actually not even complicated adjudication to think about that I shouldn't make a decision which is going to negatively impact on somebody's rights. It is not so difficult, right. And I mean, I think they want to do it instinctively … the law is there; the common law is there to tell them that, but it is not being applied.
Discussion also considered whether human rights complainants should be able to choose between forums when raising human rights allegations or whether such choices should be limited. Some emphasized the needless expense, delays, and difficulties of having multiple forums for addressing a single issue, while others emphasized the importance of access to the human rights system and the ability of individuals to seek the most effective remedies.
Respondent counsel were most concerned about the ability of complainants to raise similar issues in multiple forums.
You deal with the Commission, and suddenly these complaints are alive for two years at a time, and there are quite often parallel, overlapping proceedings at the Ministry of Labour, civil litigation, the Worker's Compensation Board, all dealing with essentially the same case and all of those bodies taking the view that they are uniquely positioned to deal with that complaint and none of them are willing to throw it out, and so suddenly you are defending against three and four pieces of litigation at the same time all dealing with the same employee dispute.
Some respondent counsel argued for exclusive jurisdiction to be given to specialized tribunals in situations also involving human rights matters, because they have area expertise that allows them to better and more quickly deal with the central issues.
I would suggest that there are areas, such as special education, such as the workplace, where there are tribunals that are set up that do have expertise and who have a better understanding of the workplace and the context and the complexities and that it is important that those complaints be dealt with by (these) tribunals ... I would say that work-related complaints should end up at the Labour Board ...because they have an expertise.
Others from the complainant perspective argued for the right to ultimate recourse to the state human rights institution regardless of whether this represented “two kicks at the can”.
... I disagree with ... (the) suggestion that there be exclusive jurisdiction taken away from the Human Rights Tribunal and given to an employment or a labour tribunal or an educational tribunal with respect to these issues. That works to the benefit of respondents; it does not work to the benefit of complainants.
I don't think it is an either/or situation. I think it has to be part of everything that is done when you look at it through a human rights lens. But ultimately, if the issue is not dealt with, at whatever tribunal level, the person maintains the right then to go to a human rights complaint. And some people will argue that is two kicks at the can. Well, that's fine.
Union representatives argued for the right of ultimate recourse to the OHRC, even in the unionized context where the OHRC has taken the position that human rights matters adequately dealt with through the grievance arbitration process should not be allowed recourse to the OHRC complaints process.
It is essential, in our view, that public bodies like the Commission and Tribunal be accessible to all members of society. Denying unionized workers access to the Commission and Tribunal prevents them from utilizing services established for their benefit merely on the basis of their union membership. Having said that, we recognize that the re-litigation of issues which have already been tried and determined are not in the best interests of any party. Such duplication is costly for everyone involved, and needlessly expends scarce administrative resources. As a result, we recommend that the Commission’s role in dealing with complaints that could or have been heard in other forums be clarified.
A consultee from Quebec raised caution regarding suggestions made that human rights matters be dealt with in non-human rights tribunals, based on experience in that province.
The Quebec Commission has been systematically stripped of its jurisdiction by appeal court after appeal court saying that the equivalent of the special education and workplace grievance systems and so on have the sole jurisdiction to address these issues. And what has been happening is the Quebec Commission has been stripped of its capacity to address systemic issues and to take the case and say, "Yes, you have addressed the technical administrative issue in your tribunal, but we would like the capacity to address the human rights issue which has not been properly adjudicated in this forum and which can't be properly adjudicated in that forum", and they can't do it.
Some called for the development of a super tribunal or other structural changes to enhance competence of tribunal members to deal with human rights matters and to affirm and clarify jurisdiction. Some looked to structural changes, such as formal negotiated protocols, or cross-appointments as a way to better deal with these issues:
The idea I mentioned earlier of having the actual tribunals themselves have coordinating bodies for their intake processes I think would help the flow or the streaming of complaints to appropriate areas. And maybe having… have a legislative change that would allow a Human Rights member to sit on the tribunals of these other specialized bodies … So the important thing I think is to try to find systemic and structural ways of integrating that expertise into the tribunals.
There was general consensus that the OHRC should be involved in training and educating other tribunal members, and in monitoring activities of various tribunals to ensure competence and consistency.
Every tribunal should be looking at the aspect of human rights and constitutional rights, but they have received no training (and) ... I would argue that (training) is the role of the Human Rights Commission …
c) Other Forms of Harmonization
Some consultees approached harmonization from the perspective of enhancing legislative harmony with the Code and Charter. In this regard, some consultees suggested the development of mandatory legislative review committees that include a human rights expert.
… a legislative review committee, I would like to see that pressed very hard by the Commission, because that is public policy and education right there, and it is far better than trying to get legislators to talk about human rights. I mean, they are not interested. They are interested in getting votes. But if a review system is put in place for all their legislation, then maybe some of their legislation is going to have to be changed or amended.
A few consultees were concerned that human rights legislation is not harmonized across Canada.
.. is it in keeping with the UN covenants, the international covenants which Canada goes out like a boy scout and signs and they are applauded, but we don't see the implications for the province, let alone the federal Government. There is no integration between the feds and the provinces in reviewing this. When we go to Geneva for the Human Rights Committee to really look at our performance, it is left to the civil servants. I mean, the last time they had an intergovernmental meeting was 13 years ago.
Many stakeholders are concerned that the current human rights system lacks coordination, especially regarding the role, activity, and capability of specialized administrative tribunals. They suggested greater cooperation in human rights promotion and education. In addition, some stakeholders are concerned that legislation, regulations, and daily activity in key sectors are not harmonized with Canada’s international human rights obligations and norms and are not harmonized across the country.
5. An Accessible Human Rights System
Based on the Paris Principles and related guidelines, an effective human rights system requires that state institutions are readily accessible. Prominent factors affecting accessibility include physical location and design, employment of communication technology, receptivity of service, perception of service, timeliness of service provision, and representative composition of membership and staff.
Consultees employed the term accessibility in a variety of ways, and identified a number of concerns about perceived deficiencies and features in the current human rights system. One consultee, however, spoke of the fundamental accessibility to a set of principles and laws that a human rights commission was uniquely capable of providing.
… this speaks to accessibility, because the question really is, accessibility to what? You can get accessibility to adjudication through a whole range of forums, but it seems to me what we are particularly concerned about here is accessibility to a particular set of principles and laws around human dignity, respect, looking at different power cultures or imbalances of power … and that particular is uniquely, in my view, available in a human rights commission.
a) Legal Representation
One major theme on accessibility revolved around access to legal representation, which some felt was pivotal to a truly accessible human rights system. These consultees felt that no system could be accessible without adequate representation, at no cost, to all complainants and to respondents as required. Some felt that access to representation would resolve most if not all other accessibility issues, such as power imbalances and financial means.
… if you only have a certain envelope of money, it might be worthwhile considering whether the investigation bureaucratic money go to representation. And I don't know exactly how to fashion it. I don't have a complete model, but it deals with power imbalance if people get counsel
On the other hand, many questioned the feasibility and effectiveness of a system that was centred on the guarantee of legal representation, based on the expectation of high cost and the current environment of limited and inadequate access to legal aid that they believed was not likely to change.
I mean, the reality is community legal clinics are stretched to capacity and beyond, and Legal Aid Ontario has not had a funding increase in six years of any kind. And you know, CPI has had 2 percent, and LAO has got nothing in six years, in addition to which [LAO has] had to absorb the cost of an increased tariff to pay lawyers who are already paid well below market rate, who don't even have parity with the Crowns.
Some cautioned that a move to an improperly funded legal representation model would inevitably lead to a two-tiered complaint system.
… if you don't have a system that supplies full legal representation to everyone, you are going to have a two-tiered complaint system; you are going to have individuals who can't afford a lawyer and simply won't fare as well …. So the only way to address the power imbalance is you have to have full representation. I don't think we have a Government that has the money to provide that kind of expensive legal aid.
b) Timeliness and Complexity
As discussed elsewhere, many believe that excessive delay in the system represents a barrier to accessibility for many.
To me, a barrier to accessibility is actually the length of time it takes; you know, it isn't accessible to a child if they can't get an answer while they are still a child.
Similarly, many consultees indicated that the complexity of the current system is a barrier to many, not only because it contributes to delay but also for intrinsic reasons.
Consultees were divided on the complexity inherent in different human rights models and their implications for accessibility. Some indicated that the current model that centralizes human rights activity through a single administrative body is more complex than an alternative model that is centered on direct access to a tribunal.
And so even though the current process is strictly complying with what the courts have said is required in an investigative process, it is not working because it is alienating people and it is adding an extra layer of unnecessary complexity … by putting in place this investigation that is required in every single case, which when in reality … there are many, many cases where no investigation is required at all.
In response, some expressed concern that any system that included direct access to a tribunal had a natural tendency to “judicialize” the system and add increased complexity, which would not only increase barriers of financial cost, but also add further barriers of complexity to complainants employing the system. One consultee with first hand experience of the direct access model instituted in British Columbia referred to the increased judicialization that followed introduction of that system.
Human rights is about people and people getting along with people; that's people respecting other people for their values, whoever they are. And the system that we currently have in British Columbia is about paper; it is not about people. It is driving paper through, so there is no gatekeeping and it is grinding to a halt. It is becoming laden with rules. It has got 50 pages of rules. It has got 390 decisions as of the last time I checked, and 95 percent of those are procedural-based decisions. It has got an average of three to four days of hearings. It has got an average of 30-page decisions. ... It is not about solving people problems, and human rights is around -- I think it should be, but it isn't -- but it should be around solving people problems. And if you are moving to a system which is a more direct access model, it will grind to a halt if you just put it to paper and not have people.
c) Access to Information and Regional Barriers
One consultee indicated that a significant barrier to the human rights system was represented by the lack of knowledge of this system in the general population, especially outside of Southern Ontario.
. The larger problem is a lack of knowledge. Knowledge is power, and knowledge is access. People don't even know. And I think most of the folks in this room are of Southern Ontario, the Golden Horseshoe. Well, the folks here have a much greater idea of what is available and the remedies that they can access. Outside of here, best of luck to you, mate. It is tough. So anyway, I think geography is huge, and knowledge. I would love to see more resources devoted to education.
Human Resources Professional
Other consultees agreed that the current system did not provide uniform accessibility across Ontario. Commenting on the future he envisioned for the OHRC and HRTO, one consultee commented:
It would need to be more geographically accessible, in the way the Commission used to be. Do you remember when the Commission had regional offices?
Another consultee from the north of Ontario was in favour of major decentralization of the system.
Yeah, accessibility to the community is really crucial. I'm a fan of decentralization and I don't know if that is ever going to happen, and regionalism and I don't know if that is ever going to happen. That's because I live in Northern Ontario now and not in Toronto any longer. But you know, I think that this is part and parcel of my vision of early dispute resolution, is that I think what many complainants are looking for is some kind of hearing, which is the title of an old administrative law paper, and that kind of hearing could be effected in a regional storefront kind of structure.
d) Culture and Language
Some consultees indicated that there are significant barriers based on culture and language that are not currently being addressed by either the OHRC or the HRTO.
[T]he inaccessibility of the Commission is one of the biggest challenges facing our clients who lack proficiency in English or French...In our view, the barriers faced by these individuals are analogous to those faced by deaf or hard of hearing individuals. In either case, the individual is unable to communicate effectively with the mainstream society, due to barriers of one form or another. The result is the same – that they are denied the very services that they need to protect their rights and dignity as human beings. If the Commission is to remain relevant to the people of Ontario, then it must make itself truly accessible to all Ontarians, regardless of their language ability.
A lot more has to be done to deal with the issue of culture, because right now I wouldn't know how new immigrants would even know or understand how to gain access to the human rights system, whether it is the model we have now or later. Public education, I don't think that that's being done in a way that those community groups that are there now who would service those folks, have that information. Translation for folks who come in, back again in the late '80 and '90s, I mean, there was funding, lots of funding for that. I'm not even sure how much funding the current system has for that or if we have any at all.
e) Accessibility for Persons with Disabilities
Representatives from disability communities and organizations also indicated that accessibility for persons with disabilities, including both physical and other barriers, remained a concern.
The Commission lacks clear policies and procedures for providing access and accommodation for deaf, deafened, and hard of hearing participants in the human rights complain process. We have identified major barriers and gaps in accessibility for deaf, deafened, and hard of hearing individuals to the services of the Ontario Human Rights Commission and Human Rights Tribunal of Ontario.
f) Other Issues
One consultee indicated that the OHRC and HRTO and the human rights system as a whole are instruments of the dominant culture, or at the least are perceived by many marginalized communities as institutions of the dominant culture. From his perspective, the reality or perception of such an association with the dominant culture leads to barriers to use of these institutions by marginalized individuals and communities.
Further reflecting this idea, another consultee indicated that many marginalized communities don’t trust the OHRC and don’t see it as credible in dealing with their concerns.
In terms of the cultural piece of it, it is also about trust and communities' trust in the Commission and about making the Commission relevant to communities again. And that's a big factor, that communities feel that they are being heard; in systemic type issues, that communities feel that whoever is leading the charge at the Commission, that they are sensitive to the issue and they have an understanding, that they know how to relate and there is a relationship. And that's where the outreach and public education comes in. It is about building public trust and about building public confidence and relationships that will once again make the Commission relevant.
Stakeholders raised concerns regarding a number of barriers to accessibility, including lack of representation, complexity of judicial and administrative processes, cost, inordinate delay, lack of knowledge of the system, geography, culture, language, failure to accommodate disability, marginalization, and lack of trust.
6. Addressing Systemic Issues
There was broad, though not universal, agreement that any human rights system should have a stronger and more effective focus on addressing systemic issues. Consultees, to varying measures, included as systemic activities:
- maximizing systemic and public interest remedies in individual complaints,
- the processing and initiation of systemic complaints by the state human rights institution,
- developing and enforcing human rights standards,
- public education activities, and
- inquiries and research into human rights concerns.
Many criticised the current system as not adequately addressing systemic issues in society or even enforcing these when systemic remedies have been obtained.
In light of the importance of a pro-active approach to addressing issues of discrimination and harassment, we are concerned that the Commission has not adequately focused on pursuing complaints designed to eliminate systemic discrimination in the workplace.
... one of the problems that I'm seeing with systemic complaints where you get systemic remedies is an implementation function for the Commission, being able to have a sector or a team within the Commission that will look at effective implementation, particularly in those big corporations or public institutions that ….. will be able to, with the involvement of the Commission, eliminate some other potential human rights violations within those big public institutions and to work on the implementation or really successful implementation of those public remedies.
Some felt that the primary focus of the OHRC and the system as a whole on processing individual complaints compromises the ability of the system to address systemic issues.
..the problem with the current process and the problem that has plagued human rights, the system in this province for decades, is that the Commission has been burdened by the obligation to devote a considerable amount of its resources and energies towards the individual processing of complaints, and that has detracted the Commission away from the ability to devote resources to doing the kind of public advocacy, public policy and public education that properly the Commission should be doing …
Some felt that advancing the public interest in the course of processing and litigating human rights cases must be a primary role of any human rights institution.
We have to be concerned about advancing and protecting and representing the public interest, and the public interest in the advancement of human rights is, in large part, the mandate of the Commission, which again is always overshadowed by the individual complaint process. So I want to sort of give a resounding endorsement for keeping the public interest on the table as part of the definitional mandate of the institution.
Some indicated that individual complaints are not the most effective means of addressing systemic issues, and it was pointed out that individual complainants, and the clinics and lawyers representing them, have an overriding interest in the resolution of their individual dispute, and that systemic or public interest issues may therefore get lost. OHRC staff, in particular, indicated that one of the strengths of the current system is that it retains as a standard feature the advancement of public interest in individual complaints and thereby addresses systemic issues. They indicate that the public interest would be diminished as a factor in the human rights system if any change to the system did not involve one party that was acting principally in the public interest at the adjudication hearing.
… under the current system in Ontario, the Commission itself is a separate and distinct party at hearings before the Tribunal. And, even prior to referral of a complaint to the Tribunal, Commission mediators and investigators are trained to require broader public interest remedies beyond the self-interest of the parties.
… The private bar and clinics would have no real motivation to ensure that public interest remedies are part of any resolution or that public interest issues are argued at a hearing. Their interest, understandably, will be focussed on the individual client. While some lawyers and complainants may want public interest remedies to form part of a resolution of a case, they would surely focus on the individual interest especially where the public interest component may serve as deal breaker (in the case of a settlement) or as taking away from the individual’s argument (in the case of a hearing).
Stakeholders value systemic approaches to human rights promotion and protection and most are significantly concerned that systemic approaches are not being maximized in the current system. From this perspective, enhancing systemic approaches should be a priority in any human rights system review and reform.
7. Skills/Expertise/ Community Representation
Many consultees believed that the level of expertise and skill in human rights staff, commissioners, and tribunal members was insufficient and needed to be advanced. Several emphasized that much greater attention must be paid to skill and expertise in the appointment of Commissioners and HRTO members. As well, the appointment process should be open, transparent, and based on clear criteria.
[T]he Commissioners should be chosen from their communities. They should be accountable. We should have a representative Commission that guides the policy direction of the Commission… There has to be a really different appointment process.
One consultee indicated that regardless of where or how decisions are made, the skill and expertise of human rights workers and the decision makers will have the most significant impact on the quality of decisions reached.
… it is not a matter of what forum. It is a matter of expertise and understanding. That's the bottom line .. you are sitting there for months frustrated, in one case for years, frustrated sitting in a hearing where the adjudicator isn't getting it, is darn well not understanding it. And this person is the independent, objective arbiter and they have an agenda going here, and what, I have to tell this poor person who is sitting through this, this complainant, "You know, give me a team" -- and I have said this at the Commission, at the Tribunal -- "Give me a team of people who can investigate race cases and disability cases. Give me a team of people who can adjudicate and hear this. And give me a team of Commissioners who will understand the nuances of race and disability cases”.
In terms of the OHRC, there were particular concerns raised regarding front-line positions, such as inquiry and intake, mediation, and investigation. One consultee indicated that human rights issues have increased in complexity and therefore greater skills and expertise are required to adequately address these issues.
This whole Commission system the way we have it in Canada was really developed, you know, in the '40s and '50s in order to conduct investigations by people who sort of had, you know, relatively junior level public servants conducting investigations on facts on relatively simple matters that are susceptible of relatively easily resolution… I think the current social reality has out-stripped the structure for which the human rights system was created. In other words, I think it was a system that was designed in a time and in a space and in a demographic reality that does not exist today, and my personal view is that the balancing of that tension has to happen through a fundamental re-think of the level of staff who are doing the work at the Commission, of the type of work that is being done and the professional qualifications they have in order to do that.
Representatives from disability groups and organizations called for dedicated, trained staff to be hired to help facilitate accommodation of disabilities. For example, one consultee made the following recommendation in relation to the needs of the deaf, deafened, and persons with hearing impairments.
It is recommended that the OHRC and HRTO hire trained and specialized OHRC and HRTO staff who are to communicate using sign language and who have knowledge, understanding of and sensitivity to Deaf, deafened, and hard of hearing needs during intake, screening, scheduling of mediation meetings and investigation of human rights complaints
Some consultees were concerned that human rights staff and decision makers, including at the HRTO, must be more representative of the communities in order to better meet their unique needs and foster greater accessibility.
I think the Commission is generally inaccessible to Aboriginal communities... I think the Commission could bridge this gap by, first, acknowledging, acquainting themselves with, and giving appreciation to the various tribes that populate Ontario. This is best initiated through internal restructuring, hiring Aboriginal personnel at all levels, seeking an Aboriginal Commissioner, revisiting the barriers that have prevented these hires/appointments from happening in the past and adopting aboriginal-centred approaches to mediation and resolution.
Many stakeholders believe that skill and expertise levels of human rights staff, Commissioners, and adjudicators are not sufficient to fulfil the current demands of the work. Some are also concerned that human rights staff, Commissioners and adjudicators do not appropriately represent the communities that they serve. Consideration should be given to the appropriate skill levels and levels of community representation for human rights institutions in Ontario