Preliminary Response to the McGuinty Government's Human Rights Bill
May 11, 2006
Accessibility For Ontarians With Disabilities Act (AODA) Alliance Update
Preliminary Response to the McGuinty Government's Human Rights Bill
May 8, 2006
On Wed., April 26, 2006, the McGuinty Government introduced into the Legislature for First Reading Bill 107, the proposed "Human Rights Code Amendment Act, 2006." That bill is aimed at reforming the process for enforcing human rights in Ontario.
By introducing this bill at that time, the Government rejected the widespread claims from the AODA Alliance and many others, that it should not introduce a bill on this topic until it held a proper, open accessible public consultation on how to reform the Human Rights Code.
The bill itself is a substantial rejection of major concerns about the Government's plans that have been raised by so many voices in the disability community such as the AODA Alliance, racialized communities and by other sectors of our community.
Shortly we will make available the important documents from the Government concerning this bill. However, today as quickly as it can, the AODA Alliance is releasing its preliminary response to Bill 107. (See below.)
We have to act as quickly as we can, because unfortunately the McGuinty Government is rushing to proceed with this bill in the Ontario Legislature. We learned late last week, though not from the Government itself, that the Government is bringing Bill 107 forward for the first day of Second Reading Debates in the Legislature this evening from around 3:30 to 6:00 p.m. By rushing this bill forward to Second Reading debates just 12 days after the bill got First Reading on April 26, 2006, the Government is giving the public far too little time to digest all the bill's complicated provisions. It also is eliminating the possibility of sending the bill out for public hearings before the bill reaches Second Reading. Had this Government sent the bill out for hearings over the summer before Second Reading, we would have had a broader opportunity to have input into the bill before the Legislature voted on it at Second Reading. At Second Reading the Legislature votes whether to give the bill "approval in principle."
The Government says it will send the bill out for public hearings after Second Reading. While we need any chance for input we can get, the Government's rushed agenda puts us at a real and significant disadvantage. We hope the Government will give the community far more notice of any future proceedings in the Legislature on this bill than it has given to date.
You may wish to attend the Legislature today to watch this Second Reading debate, or you can watch it on your local cable TV service's Ontario Legislature channel. The Government has not advised whether it will provide American Sign Language interpretation, or alternative accessible accommodations at the Legislature today for anyone who can't get accessible seating in the few available in the House chamber itself.
Please send any feedback on the AODA Alliance's preliminary response to bill 107 to: email@example.com
We will do our best to get more information to you. We regret that because the Government is pursuing this issue in the way it has, we are having to struggle just to keep up. We regret that the Ontario Government is treating our community very differently from how it did during the very positive process leading to the enactment of the Accessibility for Ontarians with Disabilities Act.
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE PRELIMINARY RESPONSE TO BILL 107
May 6, 2006
On April 26, 2006, the McGuinty government introduced for the Legislature's consideration a proposed new law, Bill 107, to reform enforcement of human rights. If passed, it will significantly weaken the protection of human rights in Ontario. The Government is rushing Bill 107. It rejected widespread calls for proper, public consultations before a bill is introduced.
The Ontario Human Rights Code now bans discrimination in access to jobs, goods, services or facilities because of disability, sex, religion, race, or certain other grounds. If you believe someone discriminated against you, you can file a human rights complaint with the Ontario Human Rights Commission (OHRC). The OHRC now enforces the Code. It investigates human rights complaints and tries to negotiate a settlement. If the OHRC investigates, decides your complaint has merit, and can't work out a voluntary settlement, it can prosecute your case before the Human Rights Tribunal. It sends a publicly paid OHRC lawyer to prosecute the complaint. You can also bring your own lawyer, but don't have to.
Human Rights enforcement needs major improvement. The under-funded system takes too long.
The McGuinty government says Bill 107 speeds up human rights enforcement. However, it makes things much worse, not better. It takes away important rights the Human Rights Code guaranteed for decades. Bill 107 doesn't guarantee key features the McGuinty government says it includes. Under it, the McGuinty government reneges on an important commitment to 1.5 million Ontarians with disabilities.
2. IMPORTANT RIGHTS BILL 107 TAKES AWAY
* The right to have human rights complaints publicly investigated by the OHRC, a public law enforcement agency armed with legal investigation powers. Now, the Code gives everyone who files a timely, non-frivolous human rights complaint the right to have the OHRC conduct a public investigation of the case. Bill 107 abolishes that right. It doesn't require any public body to conduct a public investigation.
* The right to have each human rights complaint that goes to the Human Rights Tribunal for a hearing publicly prosecuted by the OHRC. The Code now makes the OHRC the public prosecutor at all Tribunal hearings. Bill 107 abolishes that role. It only lets the OHRC bring forward a narrow range of cases. It cannot seek remedies for any individual. It has no compulsory investigation powers.
* The right not to have the Human Rights Tribunal decide a non-frivolous case within its jurisdiction, unless the Tribunal holds a fair hearing at which both sides have the right to be represented by counsel, the right to fair notice of any allegations against their character or competence, the right to call relevant witnesses, and the right to cross-examine all witnesses who testify against them. Now, the Code requires the Human Rights Tribunal to hold a fair hearing before it decides a case before it, unless the case is frivolous or outside its jurisdiction. The complainant and defendant have the right to be represented by counsel, the right to notice of any allegations against their good character or competence, the right to call relevant witnesses and the right to cross-examine witnesses who testify against them. Bill 107 lets the Tribunal throw out a complaint without holding any hearing, on broader grounds than under the current Code. If the Tribunal does hold a hearing, the bill lets the Tribunal make rules that can limit or take away the right to be represented by counsel, the right to notice of attacks on your good character or competence, the right to call relevant witnesses and the right to cross-examine witnesses who testify against you. The bill lets the unelected Tribunal members (who need no legal training) make procedural rules behind closed doors, without any prior public input or prior notice. These rules can eliminate cherished rights to ensure that hearings are fair to both sides. Neither Cabinet nor the Legislature needs to approve these rules.
* The right to appeal to court, if the Tribunal rules against you. Now, anyone who loses their case at the Tribunal has the broadest right to appeal to court. Bill 107 eliminates this. It only lets the loser go to court if the Tribunal ruling is "patently unreasonable," a far tougher test.
* The right not to be charged user fees for going to the Tribunal. Now, the Code doesn't provide for the Tribunal to impose user fees. Bill 107 lets it charge user fees.
* The right to have cases now in the human rights system decided under the current law. Over 2,000 cases are now in progress before the OHRC or Tribunal. Bill 107 forces all these to start all over again before the Tribunal, but without the OHRC as public investigator/ prosecutor, except the few cases where the Tribunal already started hearing evidence. Bill 107 unfairly changes the rules in the middle of the process. It wastes months or years of massive private effort and public funds already spent investigating and mediating cases in the system.
3. HOW BILL 107 DOESN'T DO WHAT THE MCGUINTY GOVERNMENT SAYS IT DOES
* On April 26, 2006, Ontario Attorney General Michael Bryant said that with Bill 107 all Ontarians, regardless of income or personal circumstances will be assured "full legal representation" throughout the Human Rights Tribunal process. He said he's establishing a new Human Rights Support Centre to serve all Ontarians. Yet Bill 107 doesn't establish any Human Rights Support Centre. It doesn't guarantee all or any discrimination victims legal representation. It only lets the Attorney General make agreements to pay organizations to give legal advice or representation. It doesn't require the Attorney General to make any funding agreements or spend a dime. Under the bill, even if the Attorney General agrees to fund an organization for legal services, he or she can later withdraw that funding e.g. if the organization too vigorously sues the Ontario Government (whom the Attorney General represents). It is vital that all complainants have effective legal representation before the Tribunal.
* The Attorney General also said: "A complainant only receives legal support in the current system if they retain their own lawyer at their own expense." In fact, at every case now before the Tribunal, unlike under Bill 107, the OHRC sends a public prosecutor.
* The Attorney General said Bill 107 strengthens the OHRC. In fact, it seriously weakens the OHRC. It takes away its key investigation powers. It reduces the OHRC's power to bring its own human rights complaints. It eliminates the OHRC as public prosecutor at all Tribunal hearings.
* The Attorney General said the OHRC will be able to intervene before the Tribunal in systemic cases others bring. In fact, Bill 107 doesn't give the Commission that right.
* The Attorney General said the OHRC will still have a critical role in resolving human rights complaints. In fact, Bill 107 gives the OHRC no role in the resolution of most human rights complaints. Beyond the points made above, to be enforceable, now the settlement of a human rights complaint generally requires the OHRC's approval. Most cases are now resolved that way. This lets the OHRC work to have settlements include public interest remedies to prevent future discrimination. In contrast, Bill 107 excludes the OHRC from most cases.
* The McGuinty Government's Bill 107 backgrounder said "under the bill, the tribunal would have the capacity to ensure that all relevant evidence is before it, and would be able to compel parties to provide this information within set time limits." In fact, Bill 107 sets no time limits, and doesn't appear to make the Tribunal the public investigator of discrimination cases. If the bill made the Tribunal the public investigator, this would cause serious unfairness. There must be a sharp separation between the public investigator that investigates illegal actions and the tribunal that receives and weighs evidence and decides the case.
* The Attorney General said the bill establishes new Anti-Racism and Disability Rights Secretariats. In fact, this is nothing new. Both existed in the past. Under Bill 107, they are far weaker, backed by far narrower powers. The proposed Disability Secretariat largely duplicates, in a weaker form, the Government's existing Ontario Disability Accessibility Directorate.
4. GOVERNMENT RENEGES ON COMMITMENT TO ONTARIANS WITH DISABILITIES
By Bill 107, the McGuinty Government seriously breaks faith with 1.5 million Ontarians with disabilities. In the 2003 election, McGuinty promised a new Disability Act with effective enforcement. After winning the election, the McGuinty Government rejected disability community requests to establish a new independent agency to enforce the new Disability Act. The Government said a new agency isn't needed since persons with disabilities can file complaints with the OHRC to enforce their rights. The disability community applauded the new 2005 Disability Act. After this, the McGuinty Government unveils Bill 107, which unfairly rips out most of the OHRC's enforcement teeth.
5. NECESSARY CHANGES TO BILL 107
Bill 107 is seriously flawed. It even breaks faith with the few human rights lawyers who advocated for it. They wanted discrimination victims guaranteed a Tribunal hearing, with no one able to veto that hearing by a decision behind closed doors. Yet contrary to their core demand, Bill 107 lets the Tribunal dismiss human rights claims without holding a hearing.
If the Government insists on proceeding with Bill 107, rather than first holding a proper consultation on how to fix the under-funded human rights system, then these key amendments are absolutely essential. More amendments may be proposed after further research. In summary, Amendments ensure that Bill 107 doesn't take away existing rights in the Code. They make Bill 107 do what the McGuinty Government says it does. They ensure that the McGuinty Government doesn't break faith with 1.5 million Ontarians with disabilities. Amendments are needed:
1. To ensure that the bill doesn't take away any rights now enjoyed by those who believe they suffered discrimination, including the right to opt for an OHRC public investigation and prosecution of their human rights complaint.
2. To ensure that the Tribunal can't dismiss a human rights case without a fair hearing that respects all fair hearing rights now enjoyed under law.
3. To strengthen, and not in any way weaken, the OHRC's enforcement powers and role, including expanding its mandate to monitor and enforce Tribunal orders.
4. To guarantee in the bill that a publicly-funded lawyer will represent all human rights complainants throughout all Tribunal proceedings.
5. To ensure that everyone who files a discrimination complaint and who opts for direct access to a hearing before the Tribunal will be assured a hearing within 90 days of filing their claim, and to impose enforceable deadlines for major steps in the Tribunal proceeding.
6. To ensure that the Legislature must approve any Government decision on the funding of human rights enforcement and especially any funding reduction, including for legal services.
7. To ensure that in every case, the OHRC is actively involved, both at settlement discussions and at Tribunal hearings, to advocate, e.g. for the public interest and for public interest remedies.
8. To ensure that no regulations or rules are made under the Code by the Tribunal or Cabinet that take away any existing rights, and to ensure that the public has prior notice and an opportunity for input into any rules or regulations made under the Code, akin to that guaranteed under the Accessibility for Ontarians with Disabilities Act.
9. To make the OHRC and the appointment process for members of the OHRC and Tribunal meaningfully independent of Government.
10. If the OHRC's mandate, power and funding aren't entirely preserved, to amend the Accessibility for Ontarians with Disabilities Act 2005 to establish a strong, effective independent enforcement agency to enforce that Act, including a mandate to receive, investigate and prosecute discrimination against Ontarians with disabilities.
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