Human Rights Reform – Attorney General Announces Proposed Amendments to Bill 107 as Public Hearings Begin in Toronto

By Fay Faraday

Public hearings on Bill 107 – the proposed Human Rights Code Amendment Act – began in Toronto on November 15, 2006. Attorney General Michael Bryant led off the presentations to the Legislative Committee by announcing a number of significant proposed amendments to the Bill which he indicated aim to address a number of concerns that various parties had raised since the Bill received Second Reading in May 2006. The proposed amendments address four key themes relating to:

• establishing in the legislation a Human Rights Legal Support Centre to provide a range of legal supports and services to human rights complainants;
• ensuring the independence and expertise of the Ontario Human Rights Commission and Human Rights Tribunal;
• strengthening the Commission’s investigative and public interest powers; and
• protecting fairness in the Human Rights Tribunal processes.

Overview of the Bill

Drawing on the 1992 Ontario Human Rights Review Task Force Report, Bill 107 has proposed changes that would substantially reform how human rights are enforced in the province. The Bill significantly changes the existing roles of the Ontario Human Rights Commission and Human Rights Tribunal of Ontario to introduce a “direct access” model of enforcement. In addition, the Government promised to establish a publicly-funded human rights legal support centre, although the Second Reading version of the Bill 107 did not contain detailed provisions addressing this key “pillar” of the reform.

Under Bill 107, claimants will file applications directly with the Human Rights Tribunal rather than the Human Rights Commission. The Commission would no longer investigate, mediate or settle individual complaints; nor would it screen complaints to determine whether the complaint can be heard by the Tribunal. The Commission’s re-oriented mandate would focus on pro-active efforts to ensure human rights compliance and to eliminate systemic discrimination, including the power to initiate complaints and to participate in Tribunal hearings on issues of systemic discrimination.

The Human Rights Tribunal, which has the power to develop its practices and procedures, will address all complaints through either a hearing or an alternative dispute resolution mechanism which may be developed in its rules. The Tribunal’s remedial powers will be amended to eliminate the cap on monetary compensation for discrimination.

In introducing Bill 107, the Government also promised to provide “full access to legal assistance”, including information, support, advice and legal representation to all persons seeking a remedy. The Second Reading version of the Bill, however, contained only a brief provision granting the Government power to enter agreements to provide legal and other services which may be publicly funded.

The Government’s Proposed Amendments

(a) Human Rights Legal Support Centre

The Human Rights Legal Support Centre is a critical part of the proposed human rights reform and the fact that Bill 107 contained few details on this point was one focus of criticism of the Bill.

The proposed amendments announced on November 15 would amend the Bill to set out explicitly in the legislation that the Minister will establish a Human Rights Legal Support Centre and confirm public funding for the Legal Support Centre. The amendments would clarify and ensure that the Legal Support Centre will provide range of services “including information, support, advice, assistance and legal representation” which will be available, where needed, across the province. The changes would also provide that “any person who is, has been, or may be an applicant seeking a remedy at the Tribunal would be eligible for the Centre’s services.”

(b) Independence of the Commission

Because the government is frequently named as a respondent in human rights complaints, an issue has been raised over a number of years that the legislation should ensure that the Commission operates and is seen to operate independently of government.

The government’s proposed amendments aim to enhance the independence of the Commission by giving the Commission the power to report directly to the people of Ontario through the Legislature rather than by reporting to the Attorney General as is currently done. The Commission would deliver its annual reports to the Speaker who would lay the report before the Assembly. In addition to making annual reports, the Commission would also be given a new power to “make any other reports respecting human rights as it considers appropriate and could present such reports to the public or any other person it considers appropriate.”

(c) The Commission’s Investigative Powers

The Attorney General proposes to amend Bill 107 to strengthen the Commission’s powers to conduct investigations by making amendments to ensure that the Commission will have the powers:

• to inquire into any matter;
• to examine documents;
• to question people; and
• to compel cooperation in its inquiries.

The Commission would also be given the express right to intervene in any application before the Tribunal.

The Commission is also empowered to bring an application to the Tribunal if it is of the opinion that the application is in the public interest. This proposed amendment would remove provisions in Bill 107 that had set criteria for when the Commission could bring an application.

(d) The Human Rights Tribunal Process

Finally, the Attorney General’s proposed amendments address the process and procedures before the Human Rights Tribunal. They appear to be aimed at ensuring that the processes that are adopted remain focussed on what is fair and just in order to resolve the dispute on the merits and ensuring the applicants before the Tribunal have an opportunity to have an oral hearing.

The Tribunal has the power to make rules of practice and procedure, including alternatives to traditional adversarial or adjudicative procedures. The current Bill 107 provisions would be amended to require that the Tribunal rules “facilitate fair, just and expeditious resolution on the merits of the matters before it.”

The amendments would restrict the Tribunal’s powers to dismiss applications without a hearing. They would also ensure that all applications to the Tribunal that are timely and are within the Tribunal’s jurisdiction, “could not be finally disposed of without affording the parties an opportunity to make oral submissions.”

Applicants would also have more time to file complaints with the Tribunal. The time limit for filing an application would be extended from the current 6 months to one year.

The provision in Bill 107 that would have given the Tribunal the power to establish and charge fees would be eliminated.

Finally, amendments would require that members of the Tribunal have expertise in human rights.

Legislative Committee Hearings and Opportunity for Written Submissions

Bill 107 and the government’s proposed amendments will continue to be addressed as Legislative Committee hearings continue.

Three days of Legislative Committee hearings were held in London, Ottawa and Thunder Bay in August. The Toronto hearings commenced on November 15 and are currently scheduled to continue on Wednesday and Thursday mornings until the Legislature rises in December. Individuals or groups can also file written submissions until the end of public hearings on the Bill.

For further information about Bill 107, contact Kate Hughes.