Much of the Report thus far has focussed on broader issues in the Ontario human rights system. At this point, the discussion will turn to the individual complaints process, which is an area of primary concern for many who participated in the consultation process. The complaints process is the most visible of the human rights system’s functions, and most of the OHRC’s and HRTO’s resources are devoted to it.
While there are many other functions performed by the human rights system, such as research, public inquiries, education, and policy development, these were not a specific focus of discussion, except insofar as consultees felt that any reform of the human rights system should increase the focus on these types of activities.
Many feel that the complaints resolution process is not working as well as it should be, and that problems with this aspect of the system are impeding the effective functioning of the system as a whole. Criticisms of the current complaint resolution system include:
- The process is too slow to be meaningful;
- It is open to abuse by both respondents and complainants, particularly through the refusal by parties to cooperate in the process and disclose relevant information in a timely manner; and the excessive use of procedural tactics to cause delays and wear the opposing parties down;
- Parties do not have sufficient access to the decision-maker;
- The process is overly litigious;
- The process is excessively complex and thereby inaccessible; and
- The system is sometimes poorly administered and at times fails to provide good customer service to parties.
Some consultees pointed out that the system cannot be expected to tackle systemic issues effectively, and to create and maintain a culture of human rights unless the complaints resolution process can be made to function better.
This is a contentious area. There are many competing principles and issues at stake. As well, one’s perspective is likely to be influenced by one’s role in the system: respondent counsel will be likely to perceive different problems and suggest different solutions than complainant counsel, for example. There are many different ideas about how to improve the complaints mechanism. For example, while many may agree that the system should be simplified, fewer would agree on how that might best be done.
The issues affecting the complaints resolution process are complex. For simplicity’s sake, the issues have here been broken down into a number of themes: timeliness, simplicity and fairness, flexibility, being heard, administrative and adjudicative processes, and gatekeeping. However, all of these issues are intimately linked. One cannot, for example, expect to create a more timely system without simplifying and streamlining it. As well, many consultees recognized that there are tradeoffs between these concerns: for example, some stated they would be satisfied with a simplified system with fewer procedural safeguards, if it meant that more complaints could be heard by a decision-maker.
Two principles were identified that should be kept in mind when considering all of these themes. These two principles will often support each other, but sometimes will compete. The first is that the complaints resolution process should be first and foremost about the people: any system design should consider the experiences of those who actually use the system, and how it feels to them:
I really think that whatever decision is made or however it is approached, it really has to start with the complainant and the respondent…[Y]ou have to start with the people that … are the people for whom the Code is designed, which is all the people of Ontario and everyone who might be affected by discrimination and harassment.
Some consultees also emphasized a second principle, that while the complaint resolution process is concerned with resolving individual disputes, it is not only about that. There is also a public interest at stake in the resolution of these issues.
Finally, a few consultees cautioned against focussing on the “efficiency” of the system to the detriment of its effectiveness:
While we are sure one can always find numerous ways to improve the efficiency of any bureaucracy – the Commission is no exception – we want to add a word of caution about the blind pursuit of efficiency, particularly by an organization presumably dedicated to the promotion of human rights. .. Better efficiency, per se, will not resolve any of the current challenges faced by the Commission. On the other hand, the pursuit of efficiency has the potential of making the Commission even less accessible and less responsive to the needs of those it purports to protect.
1. Timely Resolution of Complaints
The ability of a human rights system to provide meaningful and timely resolutions to human rights complaints is a key factor in assessing not only the operational efficiency of a human rights system, but its accessibility and its ultimate effectiveness. As many consultees pointed out, decisions rendered years after the events in question are no longer meaningful to the parties involved.
[O]nce a resolution is reached so far removed from the events, the outcome has often lost any meaning to the parties… Justice delayed is justice denied, and in taking so long to have a complaint resolved, the system has failed to adequately protect our clients’ basic human rights in a timely manner. The delay in the system is not only frustrating to complainants that have launched complaints but may also act as a deterrent to potential complainants who never end up filing a complaint, due to the prospect of a multi-year delay. Knowledge of the delays in the system can also influence a complainant’s decision to accept a poor settlement offer at mediation.
The OHRC also heard that these concerns are particularly pressing for those who are most vulnerable, and simply cannot afford to wait around for a decision. The loss of housing, or employment, for example, can have an immediate and devastating impact on those with limited financial, social or psychological resources, and who are struggling simply to survive.
For poor people and recent immigrants it is just a joke if you are saying that you file something now and three years from now – I mean, these are my clients, so I can tell you they can’t stick around for a legal process that takes that period of time.
As well, in some cases, a timely resolution may enable the parties to salvage or restore an important relationship; for example, in the workplace.
[I]f it is a workplace accommodation issue or a harassment in the workplace issue, it becomes critically important to see if that relationship can be repaired and sustained going forward. And the nature of the process can be quite critical to salvaging that relationship, and the more quickly the Commission can intervene in that regard and probably the less formal the process is, at least in the initial stages, the more successful that may be.
However, a cautionary note was sounded by one consultee, who pointed out that a quick process is not in itself the be-all and end-all of a human rights system, and the quest for timeliness should not be pursued to the detriment of the ultimate goal.
Many stakeholders raised concerns regarding the slowness of the current compliance system. The average age of complaints at the OHRC is currently 12.1 months. Those complaints that do not settle, and are fully investigated and receive a decision under section 36 of the Code take considerably longer: the average age of cases at the time of a section 36 decision is currently 28.8 months. Approximately 20% of complaints reach this stage. Hearings at the HRTO add an additional period of time, which may range from months to years, depending on the complexity of the case, and there may be an additional lengthy wait for the issuance of a decision following a hearing. The consensus is that even at its best, this process is simply too slow.
A process that takes twelve months as a standard is not appropriate. You know, even if you met that a hundred percent of the time, it is too long. It is too long. No one in the real world is going to accept that.
Many reasons were identified for the slowness of the process, including lack of resources, too many steps in the process, poor administration, a lack of power at the OHRC to compel parties to cooperate in the process, and excessive proceduralism at all levels.
Most consultees agreed that the human rights compliance process must be streamlined all the way through the system, at both the OHRC and HRTO levels. Suggestions ranged from minor adjustments, such as allowing complainants to themselves serve complaints on the respondents and consolidating the settlement processes that now take place at several points in the system, to broad ranging reforms to the powers of the OHRC and the roles of the OHRC and HRTO. These suggestions are dealt with throughout the following sections.
As well, many felt that there must be more emphasis on resolving simple cases quickly, at the front end of the system. Some consultees referred to the Early Settlement Initiatives that are undertaken by some human rights commissions and have been carried out in the past (and to some degree at present) by the OHRC. These involve commission staff intervening and seeking settlements in human rights issues that have the potential for quick resolution, immediately after, or even prior to the filing of a complaint.
I think it would be fantastic to have a group of people who, after it goes through an inquiry and intake process, end up acting not so much mediators, but almost advocates for settling an issue in a very short-term framework.
The same person suggested that structural changes must be made to the system to allow for early, quick, and informal resolutions.
It is simply unrealistic to expect the formal process to respond to the kind of urgent issues that were raised… because it simply can’t do it; it is not resourced to do it; and under the current structure, it is simply not realistic. But I think it can be resourced to deal with these issues effectively, and that involves an investment of time and money and in essence, a new structural function that the Commission has not been mandated to do in the past.
Some also suggested a more flexible system, which could deal with simple cases in an expedited fashion. This proposal is discussed at more length in the section on Flexibility.
The timeliness of the current human rights compliance system is a key element of concern for stakeholders, and impacts on the accessibility, efficiency, and effectiveness of the current system. Consultees recommended that consideration be given to creating a more timely complaint process through streamlined and simplified processes, a more flexible approach, and early interventions.
2. Simplicity and Fairness
As discussed in the section on Accessibility, many consider the current system to be too complex, both at the OHRC and the HRTO. They pointed out that a simpler complaint resolution process is likely to be a more timely one, which has significant benefits for all parties to a human rights complaint.
As soon as we get into this formal process, no one wins; we have a dispute. We can save relationships if we solve things fast…
Simplicity of process is also an accessibility issue, particularly when we consider that many potential human rights complainants are among the most vulnerable members of our society. Processes that are overly complex will exclude those who are poor, are new to Canada, have literacy issues, have disabilities, or are marginalized in other ways:
For persons with learning disabilities and individuals who are marginalized in society, procedural simplicity is more important than an overly legalized system which they would not understand.
Although there may at times be a trade off between simplicity of process and procedural fairness, this will not always be the case. Some consultees pointed out that sometimes greater simplicity can lead to greater fairness. For example, many pointed out that respondents at times use procedural motions at both the OHRC and HRTO to delay the process and wear down complainants, and that reducing such proceduralism may benefit complainants as well as the complaints resolution mechanism as a whole.
Certainly lawyers sometimes, from a strategic point of view, want to litigate another party to death… but I don’t think your right to a fair hearing is undermined because you are not allowed to call irrelevant evidence.
The power imbalance between the parties, one consultee suggested, should be considered when determining what is fair: if the process feels fair to the most vulnerable party, it probably is fair enough.
However, one consultee cautioned against excessive simplicity:
You can certainly go too far down the road of simplicity and give up fairness.
A few consultees felt that the key issue was not simplicity of process but the lack of adequate checks and balances throughout the process. From this viewpoint, there are currently inadequate mechanisms for the judicial review and appeal of decisions regarding a complaint: it is indicated that the courts have awarded excessive deference to the decisions of the OHRC, so that there is insufficient scrutiny and opportunity for review.
Fundamentally, the reconsideration doesn’t operate effectively and judicial review is almost meaningless in Ontario given the huge discretion granted to the Commission to toss a complaint.
Those who hold this viewpoint believe that what is needed is not greater simplicity of processes, but adequate, affordable representation for all complainants. An oral hearing, with proper representation, could balance out many accessibility barriers.
For people who don’t have good English language skills, who may be illiterate, any written hearing process is problematic. It may seem simple, but it is not simple if you don’t have the language skills. So the oral process works well in terms of removing barriers for large numbers of people.
This issue is further discussed in the section on Administrative and Judicial-Type Decision Making.
However, the majority of the consultees felt that a simplified process could have benefits, at least for some cases, as is further discussed in the section on Flexibility.
A number of cautionary notes were sounded regarding any attempt to significantly simplify the human rights complaints process. Given the stigma attached to any finding that a respondent has breached the Code, there is a substantial incentive for respondents to make strenuous attempts to resolve the matter on a procedural basis, rather than on the merits:
[N]o matter how often when I was teaching public law I said “Human rights legislation is not punitive, it is remedial” , there is no one in the world who believes it. There is nothing that seems more stigmatizing than to be a discriminating human being. It makes you evil to be a person who discriminates. So because they can’t stand the stigma of the result, you fight to the death to make sure you never get to that.
As well, the use of procedural motions and objections may be perceived to be the most effective way for respondents to deal with some complaints.
[T]he only way the lawyers on the respondent’s side are able to avoid the 50-day or 60 day hearings is to bring the procedural motions, because they are not going to settle for some complaint they feel is not meritorious.
Counsel for respondents and complainants
Finally, as one consultee pointed out, the balance between fairness and simplicity is not ultimately in the hands of administrative bodies, it is in the hands of the courts.
We are not going to decide it [the balance between fairness and simplicity]; the courts are going to decide it by common law principle. And my guess is you would have a more efficient system if you couldn’t have procedural complaints at every damn level, delay, disclosure, access to witnesses, expert right to lead evidence at the investigation. The fewer the processes, the less procedural fairness will slow us down … We can’t solve what the courts are going to do in procedural fairness. The best you can do is to get an expertise clause that allows for more deference.
Many feel that the current process is too complex, procedural and legalistic, and that a simpler system would be more accessible, more timely, and could be equally fair, particularly for cases that are themselves simpler. Some cautionary notes were struck, however, as to the ability of a human rights system to achieve this. On the other hand, some feel that the core issue is not simplicity, but the lack of checks and balances on decision-makers and of adequate representation for complainants.
A number of consultees pointed out that the human rights complaints mechanism deals with different kinds of cases. There are large and small cases; those dealing with complex issues and those dealing with more straightforward ones; cases involving only the parties and those with systemic ramifications; cases that turn on issues of credibility and those that require extensive investigation.
Many felt that part of the difficulties under the current system is that all cases are treated the same. Generally settlement is attempted, and where settlement is unsuccessful, an investigation is conducted, a case analysis is drafted, a section 36 decision is made, and where evidence warrants, a full hearing is held before the HRTO. Some believed that this fulsome process is neither necessary nor appropriate in all cases.
Part of the problem is treating each complaint as the same kind of complaint, and you are putting far too many resources … into the average simple complaint. [Y]ou got bogged down in that and didn’t deal with the systemic.
Counsel for respondents and complainants
These consultees indicated that some cases, which involve individual rather than systemic issues and are relatively uncomplicated, could be dealt with through a much simpler process than the one that currently exists. As one consultee put it, “the forum should fit the fuss”. For simpler cases, we may not need an extensive process with elaborate safeguards in order to meet the duty of fairness.
Where that trade off [between fairness and simplicity of process] exists in any individual case depends on its complexity and various other things, and I think one of the challenges here of trying to build a system in which there is the same process for everything is wrong …maybe there is a way of looking at how you would expect cases could reasonably be streamed so that the process fits the nature and complexity of the case.
Some put forth the view that a benefit to this kind of streaming would be the ability to allocate more resources to those cases that have broader ramifications.
The ability to take the small claims cases, small claims type cases that don’t need to be fought to the death, that can be mediated and go through a small claims process and … have those move forward and then free up a qualified set of investigators and the policy staff working together … the way they did in the last couple of years on the autism cases.
A number of criteria were suggested for determining how to stream cases. Some suggested looking to the nature of the issues at stake:
[In determining criteria to determine the level of process required] it really depends on the nature of the case, and to me the criteria is what are the issues, the relevant issues, that are involved in the case.
Many suggested that the so-called “he said/she said” cases, which hinge on determinations of credibility, could be streamed into a simpler process. That is, the essential determination in streaming would be the nature and extent of the investigation required, if any:
[T]here are a whole lot of cases in the Commission that are he said/she said cases, that are simple, factual, credibility cases and they are not very complicated and they need a couple of days where people will tell little stories, and at the end of the day the adjudicator will say, “I believe you but not you”. .. I wonder whether one could have a direct access model for those cases that proceed in a much more summary way, and for those cases which require an investigation, because somebody is going to have to do an investigation, that they stay behind.
A few suggested that consideration also be given to whether there are ongoing relationships at stake that could be salvaged:
One of the critical factors is the existence and importance of an ongoing relationship between the parties…The nature of the process can be quite critical to salvaging that relationship. If you go to a formal hearing, you are either going to have a winner and a loser, or in some cases, a loser and a loser where you eliminate the possibility of a win-win situation.
A wide range of options was put forward as to what this simpler process could look like. As discussed below, some felt that certain steps of the current process, such as investigation, could be omitted in some cases. Some suggested a combination of fewer steps and a scaled-down hearing process, as is further discussed in the section on Administrative and Judicial-Type Decision-Making.
Some OHRC staff members cautioned that it may be difficult to make a clean distinction between individual and systemic cases. One said:
[I]f you try to carve up what type of representation is afforded – for instance, some have suggested the Commission should be more involved in systemic complaints than in individual complaints … it is very difficult to actually make that clean cut because you can have an individual coming in with an individual complaint, and when you start investigating, you realize that there are systemic ramifications.
This issue is closely linked to the earlier discussion under Addressing Systemic Issues.
In a similar vein, a few raised concerns regarding the current legislated requirement that the OHRC attempt settlement in all cases, noting that public interest issues may not be addressed through settlement that deal only with individual redress.
b) Investigation and Disclosure
Part of the discussion around streaming of complaints involves a consideration of the value of investigating human rights complaints, and when and how it should be done. Here, there was no clear consensus among the variety of perspectives and concerns raised.
To begin, there was no apparent dispute that there must be some process, in at least some cases, of compelling parties to disclose information, and bringing all relevant facts to light prior to a hearing. Early and thorough disclosure of information can assist parties to reach resolution. As one lawyer who does private investigations noted,
[M]y experience as an investigator is that when you actually sit down with a thorough report, with parties who started with one position, at the end, and people are rational, when they read it, if it’s all there, they’ll come to grips with the reality of what your findings are and they’ll come to grips with what their own self-interest is.
Tactics used by parties to delay or avoid disclosure, such as the refusal of some respondents to file a response to a complaint, were identified as significant barriers to the effective functioning of the complaints process. There was general consensus that the system must have effective processes for compelling early and full disclosure.
Consultees question whether investigation is required in all cases; whether a simpler process be designed for those cases that require little or no investigation; and whether there is a better way of conducting investigations?
There was significant agreement that there are some complaints that do require thorough and effective investigation, such as systemic complaints, and some that require little or no investigation.
There are many, many cases where no investigation is required at all. You can go straight to the Tribunal; you can call your person who says they were sexually harassed; the respondents call their person who says they weren’t and whatever other witnesses there may be; and you get it over with and you move on.
One way to help move matters forward more quickly and enhance the cost-effectiveness of the process, while ensuring other complainants are not denied access due to lack of resources, is to make the investigation by the OHRC optional. If the complaint is relatively straightforward or the complainant has gathered all of the evidence needed, they should be able to opt-out of the investigation stage. For complaints that are more complex and require a lot of resources to gather all of the evidence and documentation, the OHRC should still handle the investigation.
This supports the notion of a flexible approach to complaints, and streaming based on the nature of the complaint.
However, there is significant dispute as to how investigation is best carried out. There seemed to be two models at play in the discussion. One might be termed an “administrative investigation model”, as is used in the protection of employment standards, environmental protection, and currently by the OHRC, for example. While the powers given to such investigators vary, the model generally involves a neutral person or persons who have a variety of means at their disposal to compel information, including the powers of production, search, and interviewing witnesses. Persons in favour of such a model in the human rights context generally advocated strengthening the powers given to human rights investigators, in order to make the process more effective.
The other model might be termed a “civil litigation model”, in which investigation is carried out by representatives of the parties, and enforced by the adjudicator through motions for production and disclosure. It should be noted that most, though not all of those advocating for a civil litigation investigation model in the human rights context did not advocate it in all cases; for example, in complex systemic cases, there could still be a need for a neutral, effective third-party investigator.
Some object to a civil litigation investigative model on the basis that it would unfairly shift the burden to complainants.
Under the Human Rights Code, as long as we have had one, complainants in human rights cases have been guaranteed two things: they have been guaranteed specific statutory equality rights, and they have been guaranteed a statutory right to have complaints … investigated. That second right has not been sufficiently honoured because of the combination of the underfunding and the administrative issues and perhaps the opportunities for legal impediments to be put in the way. I think that right needs to be fixed, and I fundamentally disagree with those who would frankly take it away or privatize it or give it to others hoping the Government will give them money. Government won’t… I think this is going to be lose-lose. I think it is going to be very destructive for those equality complainants who are already underserved.
On the other hand, those advocating for a civil litigation investigation model saw it as streamlining the process, and avoiding waste and duplication.
If the case goes to Tribunal, what happens to that entire investigation is we take it all up, scrunch all the paper up, throw it in the garbage, and we start afresh before a Tribunal; we call all the same witnesses; we call all the same documents; and we go through this process where we are repeating everything that happened in the investigation process … the investigation serves absolutely no purpose in the process.
One must factor into this discussion the concerns that were outlined elsewhere regarding the quality of some of the investigations that are currently carried out by the OHRC. That is, a few who might in theory prefer an administrative investigation to a civil litigation model feel that it might be simpler to move to the latter model than fix the flaws in the current investigation process.
c) Who Decides on the Stream?
If complaints were in fact to be dealt with flexibly, and placed in various streams, who should decide what stream a complaint should fall into? A number of consultees felt that it should be the complainants who decide, based on the notion of choice, as well as the belief that complainants are in the best position to make a decision.
Complainants usually are pretty aware of whether they think they are talking about something systemic or individual, and they know what kind of allegation they are making and whether they want it to be a narrow case or a much bigger one.
Others advocated caution. One legal clinic pointed out the pressures that complainants are under, such that systemic issues could be lost in favour of individual resolutions:
This is not to say that the OHRC should be moved out of the advancement of individual cases … The OHRC has played a significant role in advancing human rights jurisprudence in Ontario through the prosecution of complaints before the HRTO and, before that, the Boards of Inquiry, and the pursuit of appeals and reviews before the courts. This role is distinct from that of individual litigants, who, by the fact that they are seeking remedies for the discrimination they suffered personally, tend to prioritize individual solutions over systemic relief. Rare is the individual who is willing to reject a settlement that is favourable to them on an individual level, in order to pursue a systemic principle or remedy through ongoing litigation. Similarly, these systemic issues tend to be secondary concerns for individuals when framing the relief they seek. Indeed, individuals should not have that responsibility; it is too much to ask of those people who have, typically, been disadvantaged in society already.
As well, counsel with experience in the B.C. system noted that although there is an expedited process available, it is rarely used.
You have to have the ability in the tribunal or adjudicative body to force the bodies into a particular stream, because if you leave it to say that we have this expedited process here and the simpler complaints can go there, the reaction of many respondents will be “we don’t want to go. If we want to do the procedural objections, we are going to go and pull it into the more complex stream” or there are also complainants out there who will take a little thing and view it as a universal thing.
As well, one consultee noted that, in a situation where a human rights commission is involved in only some cases, complaints in which the commission is not involved may face a disadvantage.
We thought in Quebec that there was going to be a real rush to use this direct access, now you can decide to go to court or not. But there was a stigma, if you will, attached to the Commission having made the decision, that had it not been for the direct access provisions, that the matter would not in fact have been able to move forward, and so most of the complainants would in fact have dropped their cases.
Many consultees were interested in the development of a more flexible complaints processing model, where complaints could be dealt with according to their complexity and the nature of the issues that they raise. They suggest that “simple” cases could be dealt with through a simpler, expedited process, while more resources could be allocated to complex, systemic cases. However, beyond agreement on the broad concept, there was less consensus on how such a system could work.
4. Being Heard
Many believe that one of the fundamental human needs that is not sufficiently being met by the current system is the need of those who believe their rights have been violated to have their stories truly heard.
[J]ust based on experience, there are times when people come to the table and, honestly, all they want is the respondent to know how they felt.
I actually think we have to look at a system where there is going to be the right for somebody to talk about the discrimination they have experienced… there has to be a way and that’s why process is important, because process is often more important than substance, where people feel like they have been heard. They are not feeling like that at the Commission right now, and I can tell you that they are not feeling like that before the Tribunal now either. The whole system is a mess.
A paper process for assessing a complaint, some feel, cannot provide complainants with the sense that their story has been heard.
[E]ven though, strictly speaking, the Commission’s process complies with the duty of fairness … the reality is parties, all parties, feel fundamentally alienated from the process because they don’t have direct access to the decision-maker. They don’t have an opportunity of interaction with the decision-maker. They get these reasons that are incomprehensible because they are so brief, and they don’t understand why the decision has been made against them or for them.
“Being heard” does not, however, necessarily mean an adjudicative process, or one that is formal, procedural or litigious. Many felt that what is needed is a system that is focussed on the essential issues, and allows those to be heard.
I think that what many complainants are looking for is some kind of hearing … and that kind of hearing could be effected in a regional storefront kind of structure, not necessarily in front of an adjudicator or whatever we want to call that person, arbitrator, adjudicator, decision-maker, that sort, but that their concerns are heard by the other party in a forum which is safe, not necessarily neutral, but safe for them and allows them the opportunity to have their concerns heard.
Some offered the OHRC’s mediation process as an example of a process that offers complainants the opportunity to tell the essence of their stories in a way that is simple, fair, and not overly formalized.
Based on this, many felt that the OHRC’s processes for making determinations under section 34 and most particularly under section 36 of the Code are overly paper-based, and do not sufficiently give parties this opportunity to feel heard on the substance of their stories, with the effect that the process is ultimately unsatisfying to them.
Many who participated in the consultation process felt that the human element of a human rights system should be a primary consideration. A process that allows parties to talk about the essence of their stories can be more meaningful and satisfying to them. This does not necessarily mean full and formal hearings.
5. Administrative and Judicial-Type Decision-making
The courts have recognized that a decision-maker’s duty of fairness can be met in variety of ways. Depending on the circumstances, either administrative or judicial-type decision-making may be appropriate. Administrative decision-making is generally intended to be speedier, simpler, and more accessible. Judicial-type decision-making offers a higher-level of procedural safeguards, but generally is more complex and slower.
It is important to keep in mind that this is not a dichotomy, but a spectrum. There are numerous decision-making methods in the realm of public law, each with its advantages and disadvantages. For example, decisions may be made by hearings officers, who essentially issue orders following a fact-finding meeting. In the labour relations context, a single arbitrator may conduct both mediation and arbitration together. Small claims courts provide a very simple hearings process, with a minimum of technicality. Hearings need not be lengthy, inaccessible, or technical.
It is also important to keep in mind that the discussion of decision-making forums need not be tied to the structure of the current system. That is, one need not assume that only a body like the OHRC could do administrative-type decision-making, or that only a Tribunal could hold hearings. There are Tribunals that provide both more administrative and more judicial type decision-making, and administrative agencies that do the same. The workers’ compensation system was offered as an example of a system that provides many forms of decision-making, tied to the nature of the dispute at issue.
Many consultees expressed enthusiasm for the idea of simpler hearings for simpler cases, reserving the large hearings like those currently done by the HRTO for more complex cases. For example, a significant number of consultees expressed interest in processes currently used in employment standards and health and safety, whereby officers hold fact-finding meetings with the parties, and can issue orders at the end of that meeting; those against whom an order is issued have a right of appeal. Such a process, proponents felt, can offer speed, accessibility, simplicity, and a hearing for the parties.
The Human Rights Code must be amended to give the Commission powers to impose fines and penalties, as well as compliance orders, without the necessity of an independent arbitrator. An analogy is the power of the Ministry of the Environment to impose orders, fines and penalties without going to court… Respondents fight back precisely because there is no advantage in doing otherwise. Whereas, if there was a short investigation, and the facts obtained, and a fine or penalty and an order established, the wrong can be rectified much more speedily and more fairly.
Others pointed to the labour arbitration system:
Maybe there is another type of forum that would mirror the arbitration system for non-union employees that could be approved by the Commission but could be faster, that employers could buy into, that employees could buy into, that would allow relationships to be maintained in the workplace in a positive way.
Human Resources Professional
Such a process, some felt, should be as non-legalistic as possible:
Litigation is not the panacea. That is television. I tell my clients if you can resolve it, resolve it, because you will be hurt through the litigation process. You will not be vindicated; you will not be nurtured; you will not be acknowledged. You will be hurt very deeply in most cases.
I don’t want the lawyers to have an incentive to litigate. The only one that wins in litigation is the lawyers, as far as I am concerned.
I think that problems that people have between themselves are easier to solve earlier on in the process. I’m concerned about positional bargaining and congealment of positions and polarized positions between the parties as more and more legal layers become associated with complaints.
As noted elsewhere in the section on Simplicity, some consultees felt that such simplified processes may be difficult to achieve when dealing with human rights, and a few expressed concerns that the nature of the right might not be amenable to more modest forums:
Although we have all been gushing over the labour relations arbitration system, I think part of the reason labour relations arbitration and arbitrators have been so successful in mediations and resolutions is because they are dealing with a different kind of right; they are dealing with contractual rights and they are dealing with the fundamental principle that there has to be trade-offs. Whereas you have to be very careful when you are adjudicating human rights issues, because those are quasi-constitutional rights and these are not things that are to be traded off.
Others noted that no system should move too quickly towards an adversarial, positional process, and that a variety of other forms of dispute resolution, such as mediation, must be available early on in the process.
There was considerable, though far from unanimous, interest in designing a hearing process for the less complex human rights complaints that would be simpler, quicker, and much less formal. This could be done by strengthening the powers of investigative officers, similar to those of employment standards officers, or by moving to something closer to an arbitration process for these cases. Many felt that complex hearings should be reserved for complex cases.
6. Admissibility and Assessment of Complaints
In most human rights complaint systems there are a number of steps, or turning points, at which a decision is made as to whether a complaint is admissible according to stipulated criteria. This may involve a stage of assessment and decision on the evidence, to determine whether a full hearing on the merits of the case should be held.
There was considerable discussion among consultees on the admissibility and assessment function of state human rights institutions, much of it centred around activities of the OHRC. Discussions about these issues was challenging because of the complexity of the issues involved and because of difficulties in the terminology. There were a number of terms in use to refer to this function such as “triaging”, “screening”, and “gatekeeping”, and these terms were often used interchangeably to refer to a variety of functions and processes. In order to have a meaningful discussion, it is important to clarify terms.
In discussing admissibility and assessment functions the following five different processes were referred to by consultees:
- Informal barriers to accessing the system, such as lack of knowledge of one’s rights and of the system, language barriers, and lack of confidence in the system. These prevent potential complainants from even attempting to exercise their rights. These have been considered in this Report in the Accessibility section.
- Informal triaging and filtering at the point of contact with the system. Not every contact with the human rights system results in a formal complaint. For example, based on advice from front-line staff or from legal counsel, potential complainants may decide not to pursue the matter, or to seek assistance from another body, or they may be discouraged by the formality and the administrative requirements associated with filing a complaint.
- Determining admissibility of complaints on jurisdictional criteria: that is, complaints that do not fall within the scope of human rights legislation are not proceeded with.
- Determining of admissibility of complaints on policy criteria: there may be criteria for refusing to deal with complaints that respond to concerns such as fairness of process, or efficiency. For example, there may be time limits on the filing of complaints, or the human rights institutions may be given the ability to defer or refuse to deal with complaints that could be dealt with by other bodies or processes.
- Assessment and determination of complaints on an evidentiary basis: there may be criteria requiring that complaints meet a certain evidentiary standard prior to a full hearing on the merits.
While the informal triage and filtering at the front-end raises important issues, it received relatively little attention from consultees. This discussion will therefore focus on determination of admissibility on the basis of jurisdictional and policy criteria, and assessment and determination on an evidentiary basis.
In the current system, the determination of admissibility of complaints on jurisdictional and policy criteria are set out in the application of section 34 of the Code by the OHRC. Also in the current system, assessment of complaints on an evidentiary basis is manifested in the application of section 36 of the Code by the OHRC. Given the current context, many consultees tended to refer to the OHRC’s application of these sections of the Code directly rather than to the generic types implicit in the discussion.
a) Is it Necessary?
There appears to be general consensus that some determination of admissibility and assessment of complaints is inevitable somewhere in the system, even if for some it is not desirable in an ideal world. In order to ensure that the system is reasonably efficient and can continue to function, there must be, for example, some way of determining at an early stage whether or not a matter is even within the ambit of the Code.
[T]he Paris Principles state quite clearly that a national institution should have a defined jurisdiction and should have the authority to investigate any matter that falls within their jurisdiction. And someone has to determine whether the matter does fall within the jurisdiction
[T]here is the need I think for a triage system to help decide what may be well-founded and not well-founded in the beginning stages, the initial stages. Otherwise, there is the risk … that that process could be abusive to responding parties by putting through – quite often a responding party will incur tens of thousands of dollars of costs going through the defence, the response process and the investigation process, only to have the complaint go nowhere.
There is, however, less agreement on the appropriate criteria for admissibility and assessment of complaints, and how it should be done.
b) The Process
One of the areas in which there was significant divergence of opinion was on whether the best process for making these types of admissibility and assessment decisions was an administrative or an adjudicative one. There was no consensus on this issue.
Some were less concerned with the forum than with the expertise of the decision-makers. One consultee pointed out that the deciding factor should be the effectiveness of the process:
[I] personally think the real issue here is speed and fairness and access, and whether it happens adjudicatively or administratively is I guess a policy question.
The debate is a complex one. Those who advocate for an adjudicative decision-making process before a tribunal indicate that such a process is more open, more transparent, and more likely to lead to an effective decision because arguments can be made directly to the decision-maker. As well, the parties would have broader opportunities to appeal the decision, leading to greater checks and balances.
[T]he Commission does a horrible job in dealing with that gross gatekeeping section 34 function. I believe that that function would be improved, not in a judicialized setting, but in a Tribunal where people had direct access to the individual who is the decision-maker, who is actually making the decision, could interact with that person, have an exchange so that they would promote an understanding of why their case is being dismissed.
Those who are in favour of retaining an administrative process believe that an adjudicative process would be lengthier, more costly to both the system and the parties, and more lawyer-driven, as well as exacerbate the power imbalances for complainants, who tend to have fewer financial and psychological resources than do respondents.
I know of no evidence that suggests that the Tribunal will discharge the gatekeeping function more quickly or more efficiently. I do know that the Tribunal could not undertake the gatekeeping function without both a significant infusion of resources and a dramatic change in their roles… I also don’t know that judicializing it is going to make it any better. It will make it more expensive. It will make it take longer. It will provide more opportunities for anyone who wants to slow it down or grind people down with motions. That it will do. But I don’t believe it will make it any better or any fairer in the long run.
Some pointed out that an adjudicative process for admissibility and assessment would only work if representation was provided for parties:
Putting all of that stuff in front of a judicial or an adjudicative tribunal, in my view, will only work if the human rights tribunal has duty counsel that are appointed, that are in place, that are state-subsidized to make sure that accessibility is not compromised.
c) The Criteria
(1) Jurisdictional and Policy Criteria
There was a general agreement that the criteria for admissibility must be clear, transparent, adjudicable, and communicated.
There was also general agreement that there must be determinations made on jurisdictional criteria. However, concerns of one degree or another were raised with all of the policy criteria currently contained in the Code.
For example, a number of participants raised concerns about filtering out complaints that could be appropriately dealt with under another Act, and particularly with how this is applied to complaints arising in unionized environments.
I know when section 34 was put in place, the perception was that if you were a unionized worker, you had less rights to access the Human Rights Code than a non-union worker because you were bounced back, and there were all of these assumptions over the power of a union local of 30 people.
Concerns were also raised regarding the impact of a time limit on filing complaints on persons with disabilities:
The current six month rule for initiating complaints is also a barrier to those who have mental health and other disabilities, as their disability may interfere with their capacity to proceed with a complaint within the required time frame.
Some participants were concerned, not so much with the criteria themselves, than with whether they were being properly applied. Some in the complainant community indicated that the criteria are too expansively applied; while some in the respondent community feel that the OHRC is admitting too many complaints without merit.
(2) Evidentiary Assessment and Disposition
A number of participants reacted particularly strongly to the concept of a assessment of complaints on the merits to determine which ones warranted a full hearing. Some referred to this as a “veto power”. For these participants, this was the core issue at stake in any reform of the current human rights system.
[T]he Commission can do the early settlement and all of that stuff at the front end. I don’t care really whether it is at the Commission or at the Tribunal, frankly, but the one piece I’m objecting to is the Commission having a veto over the right of the claimant, the equality-seeker to have a hearing. If the Commission doesn’t want to take it, fine, but should the person have the option of taking their own run at it at a hearing?
There were opposing views on this issue. Some supported the retention of this type of assessment and disposition function in order to ensure efficient use of resources and to protect the system from abuse.
[T]here also has to be, in terms of transparency and gatekeeping … a specific level of evidence raised. You can’t just make allegations … without a foundation there. There has to be some level of evidence that is raised; otherwise the system will fall into disrepute because the respondents are going to have to deal with complaints that have marginal or no value.
One legal clinic made the suggestion that the evidentiary threshold be lowered, to whether there is some evidence that could support a finding of discrimination.
Those who opposed an assessment and disposition on the evidence by the OHRC tended to be in favour of what they termed “direct access”. While some consultees conceived of this discussion as one between two opposing viewpoints –“direct access” vs. the status quo – there were actually a broad range of positions and nuances on this issue. The term “direct access” meant different things to different people. Some conceived of it as a system in which individual complaints should be referred directly to a tribunal for a decision. Others conceived of it as a system in which an administrative body continues to receive complaints but where an option of some type exists to arbitrate some matters somewhere within the administrative process or to take the matter to a tribunal as an alternative. A number of variations of this latter type of “direct access” were raised in the consultation.
Many made it clear that their position on this issue was dependent on whether the system would include funding for adequate, affordable representation for all complainants (and potentially for some respondents).
Discussions on this topic were lively and heartfelt. There was no consensus; rather, strong disagreements. There were certainly differing viewpoints depending on relationship to the system (e.g., respondent, complainant), as well as within communities.
The determination of admissibility based on policy and jurisdictional criteria and assessment and disposition of complaints based on the evidence is the area of the consultation in which there was the greatest divergence of opinions. While there was general agreement that determinations of admissibility of complaints must be done based on jurisdiction, there was no agreement on other criteria, nor on the appropriate process for such determinations.