Update on Human Rights Reform – Ontario Human Rights Commission Introduces Pilot Project for Processing Complaints
By Fay Faraday
Bill 107 – An Act to Amend the Human Rights Code – which makes substantial changes to how human rights are enforced in the province received Royal Assent in December 2006. With the amendments, human rights claims will be filed directly with the Ontario Human Rights Tribunal rather than the Human Rights Commission, a new Human Rights Legal Support Centre will be created to provide assistance, support and representation to claimants, and the Ontario Human Rights Commission’s mandate will be re-oriented to focus on pro-active efforts to secure compliance with the Code and eliminate discrimination. Our analysis of that legislation and its implications for unions and human rights advocates is available see below.
Most of the substantive changes introduced by Bill 107 will not come into effect until a date to be named by proclamation. In the meantime, however, the Ontario Human Rights Commission has announced other changes that will affect the current enforcement of human rights.
Until Bill 107 is proclaimed in effect, human rights complaints continue to be filed with the Ontario Human Rights Commission. In March 2007, the Ontario Human Rights Commission announced a pilot project that is underway to speed up the processing of complaints that are filed with the Commission. This is being done by setting strict time lines for mediation and fact-finding and requiring parties’ participation failing which a complaint may be referred for decision without further notice to the party.
Under the pilot project, when a complaint is served, the parties will be given set dates for a mediation and a fact-finding meeting. Parties are expected to attend at the set dates, although requests for extensions will be considered in cases of extreme personal hardship or for reasons that require accommodation under the Code.
If a party does not attend for mediation, the complaint may be dealt with under s.34 if a request has been made to dismiss it under s. 34, or the complaint could be referred for investigation. The parties are required to collect and produce all documents and other information requested by the investigator in advance of the fact-finding meeting.
The fact-finding meeting is part of the investigation process and involves both investigation and conciliation. It will usually be scheduled within six to eight weeks after the scheduled mediation meeting. If the respondent has not provided a response to the complaint, the investigator will give a deadline of 10 calendar days. If the respondent has not filed a response within that period, the complaint may be referred for decision by the Commission without further notice to the respondent.
If either party fails to attend at the fact-finding meeting, fails to cooperate in the fact-finding meeting, fails to produce the documents requested by the investigator, or cannot be located to complete the processing of the case, the complaint may be dismissed or referred to the Human Rights Tribunal without further notice to that party.
Further information about the Commission’s pilot project is posted on the Commission website.
In other developments directly connected with Bill 107, Ontario Human Rights Tribunal Chair Michael Gottheil is continuing to develop the Tribunal’s new processes and approaches to adjudication and has been holding “targeted advice sessions” with stakeholders on key elements of the Tribunal procedures. Before the Human Rights Code reforms are proclaimed in effect, the Tribunal will make its Draft Rules available for public review and comment. Further information can be obtained on the Human Rights Tribunal website.
Finally, Helena Birt has been appointed as the Transition Director of the Human Rights Legal Support Centre. Ms Birt was formerly the Manager of Family and Civil Duty Counsel Services for Legal Aid Ontario. As Transition Director, she will collaborate with the Human Rights Tribunal and Human Rights Commission to design and develop the new Human Rights Legal Support Centre.
Updates
A. Keays v. Honda
On 29 March 2007, the Supreme Court of Canada granted leave to appeal in the case of
Keays v. Honda Canada which deals with a disabled employee who was terminated without just cause. In particular, the employee was awarded significant punitive damages because of the employer's bad faith and discriminatory conduct.
B. Employment Equity
Employment Equity also remains a priority for Ontario workers. The Ontario Federation of Labour is holding an Employment Equity Roundtable on May 31, 2007.
In the absence of specialized employment equity legislation in Ontario, efforts are being made to develop new workplace strategies to address the need to create workplaces and conditions of work that reflect the diversity of Ontario’s working population. For racialized persons, persons with disabilities, aboriginal peoples, women and other vulnerable workers, there is a need to negotiate employment equity provisions in collective agreements. Alternatively, or in addition, existing anti-discrimination provisions in collective agreements must be used to require employers to take proactive steps to remove barriers and take positive measures to improve the representation of disadvantaged workers at all levels of the job hierarchy in workplaces.
C. Pay Equity
Pay Equity continues to be an important agenda item for the labour and human rights movement. On May 2-3, 2007, the Pay Equity Network composed of trade unions and women’s groups will be meeting in Ottawa to discuss the way forward at the Federal level.
With globalization leading to women making up the dominant proportion of ever more precarious forms of employment – including home-based work, dependent and independent contracting – efforts need to be made to expand the scope of pay equity in order to end the discrimination in the diverse forms of women’s work. See below to view “Closing the Global Gender Pay Gap: Securing Justice for Women’s Work”, Mary Cornish’s article in the most recent volume of the Journal of Comparative Labour Law and Policy.
D. Human Rights
Mary Cornish has recently completed a Chapter “Securing Sustainable Human Rights Justice for Workers” for the forthcoming ILO Book on Labour Law in the 21st Century edited by Arturo Bronstein. The Chapter focuses the areas of gender and racial equality, equality for persons with disabilities and the protection of religious freedom and the right to privacy in developed and developing countries to provide guidance to the equality-seeking community for translating the human rights of workers into sustainable and just outcomes. A copy of the Chapter is available by below.