A. The Paris Principles
Changes to any human rights system must be weighed against guiding principles that increasingly underlie all contemporary human rights models. Since the Universal Declaration of Human Rights in 1948, the international community has been involved in an ongoing process to identify and detail the nature of these principles. The basis of this strategy has been the development of a body of international standards and rules aimed at guiding the formation of human rights systems across the world. These standards and rules have formed key elements of international treaties and thus have become embodied in the corpus of international law. When countries ratify these treaties they undertake to make their laws and human rights provisions comply with these universal human rights principles. Canada has ratified or acceded to all key United Nations instruments related to human rights.
State human rights institutions, referred to as “national institutions” in United Nations (“U.N.”) documents, play a central role in the wider human rights system envisioned by U.N. treaties. Such institutions include government-established human rights commissions and agencies and ombudsman offices. In recognition of this vital role, the U.N. has convened a number of gatherings focused on clarifying and strengthening the role of such institutions, and has developed guidelines establishing appropriate standards and goals. These efforts culminated in the endorsement of the Paris Principles by the U.N. General Assembly on December 20, 1993.
The Paris Principles affirm that state institutions are to be vested with competence to promote and protect human rights and be given as broad a legislative mandate as necessary to fulfill this aim. The Paris Principles identify key responsibilities and roles that may be fulfilled by national institutions for an effective human rights system to operate, and provide detailed guidelines on the structural makeup of such institutions.
The Paris Principles represent the collective wisdom of the international community regarding the effective operation of state institutions in the context of a wider human rights system, and establish legal obligations for countries, like Canada, which have affirmed these principles at the U.N.
B. Effectiveness Factors Requiring Consideration
The Paris Principles were established to provide guidance for the development and enhancement of national institutions in a wide variety of contexts. They do not directly provide guidance on ways to reform mature human rights systems like that found in Ontario. However, supporting these Principles are a number of “effectiveness factors” for state institutions that have been advanced by the United Nations Centre for Human Rights. These effectiveness factors are adapted below to help inform the discussion on reform of Ontario’s human rights system. The specific effectiveness factors that are relevant to this discussion are:
- Defined jurisdiction
- Adequate Power
- Operational Efficiency
In keeping with Canada’s international commitments, these seven effectiveness factors represent principles against which any reform to Ontario’s human rights system should be measured. Any alteration of the existing human rights system will need to ensure that each identified effectiveness factor and the sum of all factors is adequately preserved and optimally fulfilled.
An effective human rights system requires the establishment of state institutions that are capable of acting independently of power brokers in society, particularly government. Otherwise, they are prone to being dominated by the interests of governments and powerful stakeholders.
By definition, state institutions are constituted by government and hence are not fully independent. However, measures need 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 can be formulated to include three elements: legal and operational autonomy, financial autonomy, and appointment and dismissal autonomy.
Legal and operational autonomy is necessary to allow an institution to exercise independent decision-making and operation. Measures aimed at providing legal and operational autonomy include the granting of separate and distinct legal personality to an institution. Ideally, this will include a mechanism of direct reporting to a legislature.
Financial autonomy is necessary to ensure that government funders do not employ financial punishments or inducements to inappropriately direct human rights activity. Measures aimed at financial autonomy commonly include identification of the source and nature of funding in the founding legislation and the ability granted to state institutions to independently draft budgets secure from the interference of affiliated ministries or arms of government.
Appointment and dismissal autonomy is necessary to ensure that members and staff of state institutions are independent and qualified individuals who are able to exercise, both individually and collectively, independent judgment and action. Measures aimed at this type of autonomy include the specification of terms and conditions of membership in the founding legislation of institutions.
Under the current system, the OHRC operates under the Code, legislation that establishes the OHRC as an independent agency of government affiliated to a government ministry, currently the Ministry of the Attorney General. The Code specifies terms and conditions for OHRC members. The OHRC does not directly report to the legislature, a concept that is advanced as the ideal by international guidelines. Customarily, the OHRC has been granted considerable deference in its activities by affiliated Ministries. For example, the government has not interfered with the OHRC’s ability to pursue complaints in which the government is the respondent, or to raise controversial issues regarding government policies and programs. The OHRC is subject, however, to the government protocols and mandates regarding hiring, management of its budget, and control over its resources. For example, where the government has placed restrictions on hiring, the OHRC cannot chose to manage the demands on its resources by hiring more staff, while cutting back on other expenditures.
From the perspective of this effectiveness factor, concern could be raised with regard to whether the OHRC should be reporting directly to the legislature, as is the ideal, and whether current Ministry control of the OHRC’s finances allows the OHRC sufficient financial autonomy to fulfill its broad human rights mandate.
2. Defined jurisdiction
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. The Paris Principles outline the following 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.
These functions have been incorporated in varying ways in different states, depending on their context and the level of maturity of the human rights system.
Defining jurisdiction is essential to effectively direct resources towards priorities, empower constituencies served, and coordinate the activities of related institutions with other actors in the human rights system.
Most state institutions have their jurisdiction defined for them in founding legislation. Such legislation must clearly identify subject matter jurisdiction that is adequate to fulfill minimum international obligations and contextually appropriate objectives and priorities. In addition, the legislation must identify specific functions that are sufficient to fulfill the objectives and priorities established.
In the current system, the OHRC and the HRTO carry out a wide range of interdependent functions. Section 29 of the Code gives the OHRC a broad mandate to advance the vision of the Code. Currently the emphasis of the OHRC is on the following functions:
- Educating the public through presentations, publications, public awareness campaigns and cooperation with key stakeholders;
This includes making presentations to employers, unions, educational institutions, professional associations and conferences, as well as public awareness campaigns. Information is also provided to the public through plain language publications and the website, as well as through press releases, news conferences, and media interviews.
- Advancing understanding of human rights through research, public consultations, and policy development;
This includes public consultations on issues of concern, such as racial profiling, age discrimination, or the experiences of students with disabilities; as well as the production of policies and guidelines that provide guidance to the public as well as guide the resolution of complaints received by the OHRC ; and the development of research papers on topics such as intersectionality of grounds, and social and economic rights.
- Preventing discrimination through proactive initiatives to seek voluntary compliance;
Each year, the OHRC conducts 10-12 inquiries of varying degrees into issues of public interest. These involve informing parties about potential human rights concerns, and seeking voluntary compliance with the requirements of the Code. For example, in the OHRC’s restaurant initiative, 24 major restaurant chains agreed to take voluntary measures to improve accessibility beyond the Building Code requirements, in order to meet the standards of the Code relating to disability.
- Advising government, institutions and individuals on issues related to human rights;
Through its Inquiry office, the OHRC provides written and telephone human rights advice to close to 50,000 individuals each year, including advice to potential complainants and respondents as to steps they can take to prevent and resolve human rights issues . The OHRC provides government and major institutions with advice on human rights issues of concern, such as mandatory retirement, police complaints systems, and the education of students with disabilities.
- Initiating complaints regarding human rights issues;
The OHRC has the power to initiate its own complaints, and has recently done so with regard to the impact of safe schools legislation and discipline policies on racialized students and students with disabilities, and restaurant accessibility.
- Receiving and screening complaints to identify those that merit a full hearing;
Through its Inquiry and Intake office, the OHRC provides advice to potential complainants on whether their complaints fall within the Code, or could be dealt with elsewhere. As noted elsewhere, the OHRC has the power to dismiss complaints without investigation under section 34 of the Code, for example, where the complaint is outside the OHRC’s jurisdiction, or is more than six months old. Following investigation and attempted conciliation, the OHRC dismisses those cases where it appears that the evidence does not warrant a hearing or the procedure would not be appropriate. Of the 440 cases decided under section 36 in 2004-2005, 150 were referred to the HRTO for a hearing; 290 were dismissed.
- Providing mediation and conciliation services to assist individuals in resolving their human rights disputes;
The OHRC provides mediation services prior to investigation of complaints, which give parties the opportunity to resolve matters using formal mediation techniques. As well, conciliation is offered throughout the investigation process. In 2004-2005, 73% of all cases in which mediation was attempted were settled. On average, close to 40% of all complaints filed with the OHRC are successfully mediated or conciliated.
- Investigating human rights complaints;
Investigations range from the simple to the complex. In keeping with Ontario’s increasing diversity, and advances in understanding of human rights, the complaints that come to the OHRC have become increasingly complex, and more challenging to investigate. Investigations generally involve witness interviews, and the collection of documentary evidence. In systemic cases, this may involve the gathering of considerable statistical and expert evidence, and extensive witness interviews. Investigations at the OHRC are carried out in coordination with the policy and legal functions, so that case law and the OHRC policies and guidelines inform the investigation and final recommendations.
- Litigating human rights complaints to provide individual redress, address systemic issues and advance the case law;
The OHRC represents the public interest in hearings into complaints before the HRTO, and has advanced the case law in a number of areas, ranging from drug and alcohol testing, to balancing of rights, to poisoned workplaces. As well, the OHRC intervenes in court cases where key public interest issues are at stake, such as religious accommodation and same-sex marriage.
- Protecting the public interest in the resolution of complaints;
Most settlements reached under the guidance of the OHRC include some form of public interest remedy, such as training, development of internal policies to prevent the recurrence of the issue, or commitment to invest in more accessible facilities or equipment.
- Enforcing the orders of the HRTO.
The HRTO currently:
- Adjudicates human rights complaints to determine whether a right of a complainant has been infringed, and who infringed the right. Where an infringement has been found, it decides on remedies to be ordered to achieve compliance with the Code and make restitution for losses arising from the infringement.
The OHRC’s various functions are interdependent. For example, the policies adopted by the OHRC are integrated into the complaints process to ensure a consistent approach. These policies, together with case law, frame the submissions of the OHRC at the HRTO and before the courts, effectively promoting human rights, and resulting in sector-wide remedies. As well, the OHRC’s regular exercise of its ability to speak out on human rights matters and deliver public education is enhanced by its compliance role.
Although the main emphasis of the compliance mechanism is on individual complaints, all of these roles can, and at times have been, used to address systemic issues.
All of these functions are important elements of a human rights system. It is, however, open to debate as to whether all of these roles are best performed by a human rights commission.
From the perspective of this effectiveness factor, the concern could be raised that the subject matter jurisdiction provided by the Code is limited in comparison with international conventions that broadly afford protections to economic, social, cultural, and political rights. For example, protected grounds identified in the Code do not include items like social class and political affiliation, grounds to which international conventions clearly refer.
The current mandates of the OHRC and the HRTO appear to cover the full range of functions identified above for effective human rights systems by international standards. It is important that any reform to the current human rights system preserve these functions, and the ability to carry them out fully and effectively.
An effective human rights system requires the establishment of state institutions that are willing and able to establish and strengthen cooperative relationships with other organizations and groups involved in the system. Such cooperation needs to be extended to the full range of stakeholders who play a vital role in the human rights system, including NGOs, other human rights bodies and state institutions, and international human rights organizations.
Under the current system, the OHRC is uniquely placed to act as a communication hub and catalyst for human rights activity. It is involved in promotional, educational and policy development activities that include consultation and cooperation with a wide range of stakeholders and the wider human rights community, both nationally and internationally.
This effectiveness factor is incorporated as an actual aspect of the OHRC’s structure. The integration of the OHRC’s legal, policy and investigative functions facilitates cooperation throughout the full exercise of the OHRC’s operations.
The fulfillment of this effectiveness factor requires that a state institution act to coordinate human rights activity. It is difficult to envision this factor being fulfilled effectively without the existence of a human rights institution that in some manner encompasses a range of functions.
4. Adequate Power
An effective human rights system requires state institutions that are vested with adequate power to accomplish objectives and functions established in legislation. It is important to emphasize that both excessive and insufficient power to carry out functions may be dangerous and counterproductive to the effective functioning of state institutions. For example, where a human rights institution is charged with investigating human rights issues, it is essential that it be vested with sufficient powers to enable it to effectively obtain information from powerful institutions, while at the same time, care must be taken to prevent abuse of the rights of respondents. Adequate power requires a careful balancing of powers in relation to mandated functions.
In the current system, the OHRC is vested by the Code with the power to inquire into and investigate a wide range of human rights matters, including complaints from the general public alleging violations of the Code. Accordingly, the Code entrusts the OHRC with a range of powers related to these inquiry and investigation functions. In addition, the HRTO is vested with a wide range of remedial powers. These powers have been used to ensure public interest remedies and to prevent potential future human rights violations.
A number of questions arise from the perspective of this effectiveness factor. Are the powers afforded to the OHRC and HRTO adequate to address the range of current human rights issues? For example, have the investigatory powers afforded to the OHRC been adequate to compel cooperation from large institutional respondents to human rights complaints? Also, where may the intake, screening, mediation, and investigation of human rights complaints be best effected? For example, some have suggested that all of these functions could be performed by the HRTO. Others have suggested that such a shift would be very costly, and inhibit access to justice by having this function performed by a more judicialized body.
An effective human rights system requires that state institutions are readily accessible. All aspects of institutional and organizational design and structure affect accessibility. 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.
In the current system, the OHRC has central headquarters in Toronto and human rights officers investigating and mediating human rights complaints across the province. The OHRC provides a toll free central inquiry phone service and responds to electronic and surface mail. Human rights complaints can be filed without the need to come to central facilities, and forms and procedures are designed to minimize the need for legal support. The HRTO conducts hearings at its headquarters in Toronto and in regional centres. Both the OHRC and the HRTO provide accommodation to the point of undue hardship for service delivery when special needs are identified.
From the perspective of this effectiveness factor concerns have been raised about whether:
- the OHRC’s services are sufficiently culturally attuned to the needs of disadvantaged and vulnerable communities including particularly, First Nations, racialized groups, disability groups, and impoverished individuals,
- the current system, under which the OHRC performs the gatekeeping function rather than the HRTO, may be an undue barrier to access, and
- the complexity of the human rights system may act as a barrier to individuals who are marginalized.
Another crucial aspect of accessibility relates to the capacity of financially disadvantaged individuals to access the system, and to seek and receive redress for human rights violations. Leaving complainants to their own resources to fund the search for redress may constitute a significant barrier. The cost of having to seek remedies for a human rights violation should not be a barrier to the universal protection provided by the Code. This includes an individual’s ability to affirm his or her rights in spite of the inevitable power imbalance that occurs when challenging large organizations or institutions that have ample access to legal resources. In these circumstances, it becomes the responsibility of the human rights system to ensure a uniform application of the Code and its principles across all sectors of society.
Accessibility issues are a fundamental concern that should be accounted for in any human rights system.
6. Operational Efficiency
An effective human rights system must ensure that state institutions are efficient and effective in operation. Lack of operational efficiency can have the effect of undermining public confidence and utilization of human rights services. Efficiency is a requirement in all aspects of an organization’s operation including structural design, interpretation and implementation of procedure, project and program design and management, staff training and development, and human resource matters.
A critical component in operational efficiency for state institutions is the provision of adequate resources. Adequate and continuous funding is a prerequisite for operational efficiency. Insufficient funds will undermine the work of any organization, no matter how efficiently it is administered and managed. Adequacy of funding needs to be measured against the functions and procedural requirements imposed by founding legislation.
Over the past decade, the OHRC has repeatedly expressed concerns about its funding levels. During this time concern was also raised about long delays in the handling of human rights complaints, which led to a number of major administrative and management initiatives to enhance the OHRC’s operational efficiency. The implementation of these operational efficiency initiatives has significantly reduced the long delays in the handling of human rights complaints.
From the perspective of this effectiveness factor, concern continues to be expressed that complaints still take too long to handle, especially complaints that pass the mediation phase and enter into the investigation phase of the OHRC’s process. Significant increases in the number of complaints being filed in the last two years also threaten to lead to the re-development of a backlog situation.
Operational efficiency, with adequate resources being an integral factor, is key in considering any reform to the human rights system in Ontario.
An effective human rights system requires that all state institutions are accountable to the state, to the public, to groups and communities, and to the individuals that use its services. Measures to maintain accountability include formal and informal reporting requirements and responsibilities, and practices of transparency and consultation.
In the current system, the OHRC is required by the Code to formally and annually report on its activities to the Minister of Attorney General. In addition, it provides regular reports of its activities on its website and through issuing news releases and statements. The OHRC also consults with stakeholders on a wide variety of issues dealing with its own procedures and practices as well as on the development of substantive human rights policies.
Concerns have been expressed about the appointment process for both OHRC Commissioners and HRTO adjudicators, on the basis that the process lacks transparency. Some have indicated that human rights expertise is not given sufficient weight when selections are made, and that these bodies are not sufficiently reflective of the communities which they serve.
It is also of concern that general information about the HRTO, such as budget levels and operational statistics, is not available to the public.
From the perspective of this effectiveness factor, it is important that any government reform to the human rights system is seen as the result of a transparent consultative process with all relevant stakeholders, and that any reformation to the system maintains high standards for the accountability of all state institutions and private actors involved.
C. Principles of Administrative Law in the Human Rights Context
There are legal requirements and principles governing administrative agencies in Canada which complement and mirror the Paris Principles. These are encompassed in the area of administrative law.
To determine what principles and requirements of administrative law apply to the creation of a viable human rights model, it is important to understand the context in which administrative agencies are created. Much of government authority is delegated to legislatively-created agencies. This includes everything from school, library and police services boards, to various commissions and adjudicative tribunals. Both the OHRC and the HRTO are examples of such agencies.
1. Rationale for Administrative Agencies
Administrative agencies are usually founded to deal with realms of activity in which there is significant public interest in keeping the subject matter in question under government control. Such agencies have a number of inherent advantages. Establishing an agency to address a specific area of law provides an identifiable institution to focus attention, develop expertise, formulate and promote the public interest, and respond to public complaints and concerns. In addition, it is generally acknowledged that the delegation of powers to a specific agency is cost effective in comparison with retaining powers within a legislature.
Administrative agencies with adjudicative functions, are also created due to the recognition that the civil court system is inaccessible to most members of the public. The workings of the civil court system are governed by lengthy and complex rules, as well as by years of procedural jurisprudence. The civil court system traditionally offers little or no assistance to the unrepresented individual. As a result, the civil court system requires that individuals retain counsel to represent them through the process. This is prohibitively expensive for the average person. In addition, the ability of courts to award costs against a losing party creates a chilling effect on the would-be litigant. As a result of complexity and the associated costs, the civil court system has become overburdened, resulting in undue delay in the processing of cases. Even simple claims, such as those in the small claims court system, can take years to reach trial.
In contrast to the courts, administrative agencies are meant to offer a simpler streamlined process that allows for more speedy access to a hearing. Effectively designed administration agencies provide simplified operations and active support for individuals working through their processes. As a result they should allow greater access to the layperson and reduce disadvantage to unrepresented parties. Rarely are administrative bodies empowered to award costs like the courts. As a result individuals are not discouraged from pursuing their claims for fear of losing. Judges assigned to hear cases in the civil court system may or may not have the necessary expertise in the particular area of law being considered. Ideally, administrative agencies are staffed with individuals who are expert in the area of law covered by their statutory mandate.
2. Duty of Fairness and Retention of Procedural Simplicity
All decision makers in the arena of administrative law are under a duty to act fairly. The principle purpose of the duty of fairness is to:
a) ensure parties have adequate notice of the case that they have to meet;
b) provide a meaningful opportunity for those interested to bring relevant evidence and arguments to the attention of the administrative decision-maker; and
c) ensure that the decision-maker, in coming to a decision, fairly and impartially considers all evidence and arguments before it.
With regards to the decision-makers themselves, they must be both free from bias and appear to be free from bias. An important component of this is that the decision-maker be independent. They are also required to use their decision-making powers to promote the policies and objects of the governing Act.
What the foregoing actually entails will depend on context. The duty of fairness applies to a wide range of decision-making powers in the administrative law context ranging from issuing dog licenses to tribunal hearings on potential human rights breaches. Therefore, the precise procedural content of the duty of fairness will depend upon the particular administrative and legal context to which it is being applied.
Balanced against the need for procedural fairness is the need to retain the procedural simplicity that aids both speed and affordability, both to the parties involved and to the taxpayer.
As noted above, court systems are more expensive, cumbersome and complex than administrative tribunals. The civil court system has highly structured rules regarding all aspects of its process including: pleadings, disclosure, discoveries, preliminary motions, the presentation of evidence and arguments at trial and appeals of interim and final decisions. These have been created as elaborate safeguards to procedural fairness. However, the concomitant to extensive procedure is generally significant expense and delay. Inevitably, the closer a tribunal or commission comes to replicating a court system with its rules and procedural requirements, the more “expensive” that tribunal or commission will be in terms of money, delay and ultimately inaccessibility.
Taken as a whole, therefore, the principles of administrative law, coupled with the duty of fairness, require that any viable human rights model include the following:
a) accessibility to the public;
b) independence from government to ensure impartiality;
c) broad power sufficient to fulfil its mandate of forwarding human rights in Ontario;
d) operational efficiency in the speed with which claims are processed and the costs incurred in doing so; and,
e) fairness in ensuring that parties are able to present all necessary evidence and arguments to the decision-maker at each stage of the process and address in turn the evidence and arguments offered against them, and that the matter is decided by a decision-maker who is free from bias and appears free from bias.
Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3rd Sess., Supp. No. 13, UN Doc. A/810 (1948).
These include: International Covenant on Civil and Political Rights, 19 December, 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46; International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 195, Can. T.S. 1970 No.28; Convention on the Rights of the Child, 20 November 1989, GA Res. 44/25, Can. T.S. 1992 No. 3; Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, GA Res. 39/46, Can. T.S. 1987 No. 36.
 Please see Appendix 1 for full text of the Paris Principles.
 Centre for Human Rights, United Nations, National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion of Human Rights, Professional Training Series No. 4, (New York and Geneva: UN, 1995) Ch. II (A) at 66.
See sections 34 and 36 of the Code.
 See International Covenant on Civil and Political Rights, 19 December, 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47; and International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46.
 For greater detail, please refer to the section of this paper entitled “History of Internal Reform at the OHRC”.
 S. Blake, Administrative Law in Canada (Markham: Butterworths Canada Ltd., 2001) at 12
 S. Blake, supra, at 89-108
 Brown and Evans, supra, at Chapter 7:1330, pages 7-10 and 7-11
 Brown and Evans, supra at Chapter 7:1220 at pages 7-4 and 7-5