Section 29 of the Code gives the OHRC broad powers to further human rights in the province of Ontario. Pursuant to this mandate, the OHRC is initiating a broad, open, and transparent dialogue about Ontario’s human rights system and its guiding principles, as a precursor to discussions of solutions and the potential for reform.
While the OHRC is generally the focus of the greatest public attention, there are many players in Ontario’s human rights system. The Human Rights Tribunal of Ontario (“the HRTO”) plays a vital role; as does the government which funds the system, and to which the OHRC and HRTO are accountable; the legal clinics and private lawyers who provide representation and advice to individuals and institutions on compliance with the Code; the numerous administrative tribunals and government bodies which deal with related issues; and the various non-governmental organizations (“NGOs”) and advocacy groups which represent the interests and needs of those protected by the Code. The system is a complex and multi-faceted one.
The OHRC is the oldest human rights commission in Canada, and has been in existence for well over 40 years. During that time, there have been many changes to the protections offered by the Code, however, the basic model for human rights in Ontario has remained essentially unchanged.
There have been many successes under this human rights model, and on several fronts, the OHRC is internationally recognized as a leader in its field. However, along with these successes, the OHRC currently finds itself facing significant challenges. In the face of increased demands on all of the OHRC’s services, its budget remains at essentially the same level it was at a decade ago. Further, the OHRC is limited in its ability to control its own processes and target its resources by outdated legislation. The HRTO has also faced challenges.
Over the years, stakeholders have expressed concerns about the functioning and effectiveness of the current human rights system in Ontario. Not surprisingly, given the diversity of these stakeholders, a wide range of views, sometimes conflicting, have been expressed at different times. For example:
- Timelines for complaints resolution are long; at the same time, some consider OHRC investigations of complaints insufficiently in-depth to reflect the complexity and subtleties of the manifestations of discrimination;
- Complainants and their advocates state that they have too little control over the complaint process, while respondents feel that the system is biased against them;
- The OHRC is too rigorous in screening complaints and prevents access to the HRTO; alternatively, the OHRC is not rigorous enough in screening complaints;
- Either too much, or insufficient attention is accorded to the OHRC’s public education and advancement functions;
- Systemic issues are not adequately addressed;
- The system is costly and inefficient; alternatively, the system is inadequately funded;
- The complaints resolution mechanism is insufficiently transparent (for example, the parties’ submissions to the Commissioners are not cross-disclosed), but privacy issues are raised which prevent improved communications;
- While some advocate direct access to the HRTO, critics note that the HRTO’s process is overly judicial and too formal, thereby disadvantaging those who cannot retain legal counsel; HRTO hearings are unduly lengthy and excessively complex; the HRTO takes an inordinate amount of time to issue its decisions; and the lack of transcription services of Tribunal proceedings makes it extremely difficult for parties to appeal decisions and leads to a denial of natural justice.
It is essential for the effective functioning of a human rights system that it has the confidence of stakeholders and the broader public. Negative perceptions of the system, right or wrong, must therefore be given serious and thoughtful consideration.
At the same time, the state of the current system should also be analysed objectively based on a rational assessment of its strengths and weaknesses in light of current standards.
In recent years, the OHRC has made great efforts to address the challenges it faces to the extent possible through internal reform. To maintain current successes, and to further advance human rights protections in Ontario requires action beyond the OHRC’s capacity to implement alone. The Ontario government has as part of its agenda a commitment to create safe, strong communities, and to increase the efficiency and effectiveness of the services it provides to the public. The Ministry of the Attorney General, which has responsibility for the Code, has indicated that it is committed to reviewing and strengthening Ontario’s human rights system, and that it intends to develop a blueprint for change in the upcoming months.
The OHRC therefore believes that there is a need, as well as an opportunity, to review the functioning of Ontario’s human rights system, and to consider changes that will strengthen human rights protections in this province.
 The functions of the OHRC under section 29 include:
- Forwarding the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;
- Developing and conducting programs of public information and education, and undertaking, directing and encouraging research designed to eliminate discriminatory practices that infringe rights under the Code; and
- Examining and reviewing any statute or regulation, and any program or policy made by or under a statute and make recommendations on any provision, program or policy that in its opinion is inconsistent with the intent of the Code.
 In the fiscal year 2004-2005, the average age of active cases at the OHRC was 11.2 months, up from 10.8 months in the previous year. Of course, complaints that are resolved through up-front mediation have shorter processing times, while those that proceed through investigation to a decision under section 36 will take longer, particularly if they are complex cases. During this period, the approximate average age of cases closed by a decision under section 36 of the Code was 28.8 months. Complaints closed by a section 36 decision make up a relatively small proportion of all complaints closed: 440 out of 2,215 in 2004-2005.
 For example, concern has been raised that the HRTO requires parties to file a factum and generate case law on straightforward interim motions, such as amending a complaint to reflect the proper name of the corporate respondent, or ordering parties to provide detailed particulars in a manner that slows down the process. The concern is that these expectations not only make hearings more legalistic, expensive, and time-consuming, they also make the process more akin to civil litigation.
 An OHRC review of twenty-six of the most recent cases litigated to completion indicates that hearings before the HRTO are lengthier and more complex than before. The average human rights case requires approximately 10 hearing days in front of the HRTO. Of the twenty-six cases reviewed, fourteen (54 percent) took more than a year to complete from the first to last hearing date. One case before the HRTO has spanned more than 150 hearing days, over a period of years.
 Subsection 41(5) of the Code states that the HRTO is to make its decision within thirty days after the conclusion of a hearing. The Divisional Court has held that this time period is directory, not mandatory. In only one of the twenty-six cases reviewed did the HRTO issue its decision within the thirty day timeframe. On some occasions, the HRTO has taken more than a year from the last hearing date to issue its decisions (e.g. Deroche v. Yeboah-Koree (2005), CHRR Doc. 05-411, 2005 HRTO 26; Cugliari v. Telefficiency Corporation et al. (BI-0388-01 - decision pending)).
 In the ten years since the HRTO adopted its policy to not transcribe its proceedings, there have only been four appeals of HRTO decisions, two by the respondents and two by the OHRC: Leroux v. Ontario (Human Rights Comm.) (1999), 35 C.H.R.R. D/338 (Ont. Div.Ct.), Jones v. Amway of Canada Ltd., (2002), CHRR Doc. 02-177 (Ont. Sup.Ct.); Brockie v. Brillinger (No. 3) (2002), CHRR Doc. 02-238 (Ont. Sup.Ct.); Smith v. Mardana Ltd. et al. (2005), CHRR Doc. 05-094 (Ont. Div.Ct.). Only one of these four appeals was successful: Smith v. Mardana Ltd. et al. (2005), CHRR Doc. 05-094 (Ont. Div.Ct.), where counsel’s notes were used to make an informal record of proceeding.