Update on Human Rights Reform – Reforms to Take Effect 30 June 2008

By Fay Faraday

The Ontario government has proclaimed that the substantial reforms to the province’s human rights system will take effect on 30 June 2008. In anticipation of increased referrals to the Tribunal prior to that changeover date, the Human Rights Tribunal of Ontario has released draft Interim Rules of Procedure and is seeking input from stakeholders by 17 September 2007. Finally, the Ministry of the Attorney General has announced a series of “Human Rights Transformation Forums” which will take place around the province in November. Each of these developments is addressed in more detail below.

A. Significance of the Proclamation: What Changes Take Place on 30 June 2008

Bill 107 - the Human Rights Code Amendment Act, 2006 - overhauls the way human rights are enforced in the province. While Bill 107 received Royal Assent in December 2006, the Bill provided that the most significant reforms would not take effect until a date to be named by proclamation. That date has now been set as 30 June 2008.

For our detailed analysis of the substantive changes that will take effect on 30 June 2008 and the provisions governing the transition to the new regime, please see below.

Briefly, as of 30 June 2008, the following significant changes will come into effect:

(a) Human rights complaints will no longer be filed with the Ontario Human Rights Commission. Applications will be filed directly with the Human Rights Tribunal of Ontario. The party who made the complaint – be it an individual, group, union or the Commission itself – will have carriage of the complaint before the Tribunal.

(b) The Ontario Human Rights Commission will no longer investigate, mediate and settle human rights complaints which are made after 30 June 2008 nor will it determine whether such complaints can proceed for adjudication at the Tribunal. Instead, the Commission’s mandate will be re-oriented to focus on pro-active efforts to secure compliance with the Code and eliminate discrimination. A new Anti-Racism Secretariat and a new Disability Rights Secretariat will be established within the Commission.

(c) New provisions will take affect that address tribunals’ overlapping jurisdiction to address complaints raising human rights issues:

(i) Where the Human Rights Tribunal and another administrative tribunal have overlapping jurisdiction and cases are filed in both forums, the Human Rights Tribunal will continue to have jurisdiction over the application but can defer dealing with the merits until it determines on a case-by-case basis whether the other tribunal has “appropriately dealt with the substance” of the human rights claim.

(ii) However, applications to the Human Rights Tribunal will be barred where concurrent civil claims are made in court. The courts will also have an express power to award monetary damages where a human rights issue arises in the context of an existing civil claim.

(d) A new process will come into effect for programs that are designated as special programs to relieve hardship or provide assistance for disadvantaged persons. After 30 June 2008 special program designations will be time-limited and will need to be renewed every five years.

The provisions creating the Human Rights Legal Support Centre came into effect on Royal Assent in December 2006. The design and development of that Centre are taking place under the Centre’s Transition Director Helena Birt. Under the new enforcement system, the Legal Support Centre will provide information, support, legal advice and representation to those seeking a remedy under the Code.

B. Transition to the New Enforcement System

The proclamation of the effective date for the changes also establishes the schedule for the transition to the new enforcement system.

The following procedures will apply to complaints that are made before 30 June 2008:

(a) Where a complaint is made to the Commission before 30 June 2008, the Commission will, for a six-month period (i.e. until the end of December 2008), continue to deal with the complaint in accordance with the pre-Bill 107 Code procedures.

(b) During that six-month period from 30 June to December 2008, the complainant may elect to abandon the complaint and make a new application to the Tribunal.

(c) If, after the end of December 2008, the Commission has failed to deal with the merits of the complaint and the complaint has not been withdrawn, the complainant will have a further six months (i.e. until 30 June 2009) to make an application to the Tribunal with respect to the subject-matter of the complaint.

(d) Where before 30 June 2008 or in the six month period after that a settlement is signed by the Commission, it can be enforced under the new settlement provisions.

Where a complaint has been referred to the Tribunal by the Commission either before 30 June 2008 or in the six-month period following that, the following procedures apply:

(a) On or after 30 June 2008, the new provisions apply to the complaint as if it were an application made to the Tribunal and the Tribunal shall deal with it as an application under the new procedures.

(b) The Commission shall continue to be a party to a complaint that was referred to the Tribunal before 30 June 2008.

(c) The Commission shall not continue to be a party to a complaint that is referred to the Tribunal in the six months after 30 June 2008 unless (i) the complaint was initiated by the Commission; or (ii) the Tribunal sets a date for the parties to appear before the end of December 2008. Nothing prevents the Tribunal from adding the Commission as a party and nothing prevents the Commission from intervening in such a complaint.

For more information about the Bill 107 reforms, you are welcome to contact Fay Faraday, Mary Cornish, Kate Hughes or Jo-Anne Pickel.

C. Human Rights Tribunal of Ontario – Circulation of Draft Rules

Earlier this year, the Ontario Human Rights Commission implemented an “Enhanced Complaint Process” to speed up the processing of complaints that are filed with it. See the Commission’s Internal Guide for Processing Complaints below.

As a result of this new Commission process, the Human Rights Tribunal anticipates that an increased number of complaints will be referred to the Tribunal in the months leading up to the 30 June 2008 changeover. To enhance its capacity to accommodate this increased volume, the Tribunal has developed and circulated draft “Interim Rules” that will affect the procedure for new complaints that are referred to the Tribunal after the Interim Rules are adopted and before 30 June 2008.

The Tribunal has also circulated amendments affecting the existing rules relating to motions and reconsideration and a new practice direction regarding reconsideration.

Interested parties can submit comments on the Draft Rules by 17 September 2007. Copies of the draft rules and further information about how to make submissions are available on the Tribunal’s website.

The Tribunal is also developing comprehensive new Rules of Procedure. A draft of those comprehensive rules will be circulated for stakeholder input before 30 June 2008.

D. Human Rights Transformation Forums

On 7 September 2008, the Ministry of the Attorney General announced a series of human rights transformation forums that will be taking place in five different locations around the province in November. The dates and locations that have been set are:

Ottawa	6 November
London	8 November
Hamilton	9 November
Thunder Bay	14 November
Toronto	16 November

Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission, Michael Gottheil, Chair of the Human Rights Tribunal of Ontario and Helena Birt, Transition Director for the Human Rights Legal Support Centre will attend each of the forums to make presentations on the new roles of their organizations and the implementation progress to date. For more information on these forums, click here.