It’s tougher than ever to enforce your human rights in Ontario

TheStar.com – opinion/editorialopinion
Published On Wed May 09 2012.   David Lepofsky and Avvy Go

Imagine being refused a job, an apartment or public service due to your race, disability or sex. How hard is it to enforce your human rights? Six years ago, the McGuinty government’s Bill 107 made controversial changes to human rights enforcement. You likely don’t know that a poorly publicized government-appointed independent review has asked the public if these changes make things better or worse.

Before Bill 107, you could take your case to the Ontario Human Rights Commission. Its job was to enforce the Human Rights Code, to investigate human rights complaints, to screen out frivolous or meritless cases and to try to negotiate settlements. If it decided a complaint had merit and couldn’t settle it voluntarily, its job was to publicly prosecute the case at theHuman Rights Tribunal.

Six years ago, to speed up a slow, backlogged system that needed reform, Bill 107 privatized human rights enforcement. It took the Human Rights Commission out of screening, investigating and prosecuting individual discrimination cases. It makes discrimination victims investigate and litigate their cases at the tribunal without the commission’s help.

Does Bill 107 make lives better for victims of discrimination? Far from it.

It created a huge void for discrimination victims by taking the Human Rights Commission out of individual cases. The government promised free lawyers for all claimants. Yet its new Human Rights Legal Support Centre only represents a fraction. Far too many unrepresented claimants encounter respondents (those accused of discrimination) armed with lawyers. The tribunal reports that 81 per cent of respondents have a lawyer at mediation but only 32.9 per cent of claimants have any representative when filing a claim.

The Liberal government promised human rights hearings within one year. The tribunal set a goal to achieve this in only 75 per cent of cases. Its average time to complete cases is 372 days, but most of those never have a hearing.

Individuals can’t themselves investigate and litigate complex systemic discrimination cases. The Liberals pledged that the stripped-down Human Rights Commission would effectively combat systemic discrimination by bringing public interest cases to the tribunal and intervening in individual cases. To date the commission has brought only one public interest case and intervened in only 73 of the thousands of individual cases. Also, the government hasn’t established the promised anti-racism and disability secretariats, ignoring its own legislation.

Liberals also promised more accessible human rights but instead created new barriers. A discrimination victim who wins at the tribunal risks having to pay thousands of dollars in legal costs if their win gets overturned by the court due to the tribunal’s own legal errors. Would a blind person likely take on the TTC today, to force it to call out bus stops, when the new Legal Support Centre is statistically unlikely to take their case, the TTC is ready to spend $450,000 on lawyers, and the applicant could be stuck with a huge court cost order because a win at the tribunal was based on the tribunal making legal errors?

The government said Bill 107 would address the backlog. Yet its transition process unfairly led 885 cases to vanish in the system.

Liberals promised fair hearings. Yet they gave the tribunal power to override legislation designed to ensure fair hearings and allowing it to pass controversial and complicated rules.

We hope this current Human Rights Code Review will recognize these amply-documented problems, and make strong recommendations to improve Ontario’s troubled human rights system. Many from equality-seeking communities want the government to keep its broken promises about Bill 107. They want the government to require the tribunal to obey legislation designed to foster fair hearings, and to restore the Human Rights Commission as a stronger public interest voice at the tribunal. Discrimination victims should be given the option of asking the Human Rights Commission to investigate and publicly prosecute their case if there’s enough evidence. Discrimination victims want results. They don’t care if they get it through hearings or through mediations.

Do you like the TTC announcing bus and subway stops, even if you’re sighted? Imagine if under this new human rights system, no one wanted to risk taking on big organizations like the TTC without the backing of a public prosecutor to win that and other accessibility measures. Is that the human rights enforcement system we really want?

David Lepofsky is a blind Toronto lawyer, activist for reforms for the rights of persons with disabilities, and twice successfully won human rights cases before Bill 107 to force the TTC to announce bus and subway stop announcements.

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