For over fifteen years, there has been a growing dissatisfaction with the human rights process in Ontario. This dissatisfaction has been expressed by members of equity seeking communities, by human rights advocates and by lawyers practicing in the area of human rights. During that time, there have been four government-initiated reviews of human rights enforcement systems in Canada, one specifically directed at the Ontario legislation, one dealing with the very similar federal human rights complaint system, and two reviewing the systems in other provinces. Despite the fact that each of these reviews made very similar recommendations for reform of the human rights complaint process, to date no major reform has been undertaken in Ontario. That is, until now.
On February 20th, 2006, Attorney General Michael Bryant announced proposals to reform the human rights system of Ontario. The proposals call for direct access to the Human Rights Tribunal of Ontario rather than the current system in which the Commission screens all complaints and decides which complaints will be referred on to a hearing in front of the Tribunal.
Further, the current proposals are intended to enable the Ontario Human Rights Commission to take a leadership role in “public education, promotion and public advocacy,” While the Commission could still bring a complaint to the tribunal, its role would focus less on individual instances of discrimination and more on system or social discrimination.
Reform of the human rights system is long overdue. The delay in complaints moving through the Commission investigation process and reaching the Tribunal (which can take years) has been, in many cases, unjustifiable and unacceptable. In the context of human rights, justice delayed is truly justice denied. The loss of control over complaints and the fact that only the Commission and not the complainant has decided whether the complaint merits a hearing is out of step with the intent that human rights protection empower vulnerable groups. In criminal justice, it is the state and not the “victim” who brings prosecution, but in the context of human rights, the person who alleges she has suffered discrimination ought to be able to control how her case proceeds and she should be entitled to a timely hearing before the Tribunal if her case merits it.
The University of Toronto law school hosted a symposium in January of 2005 to explore the issue of human rights reform. People who represent those bringing complaints and those who have complaints brought against them joined together in calling for access to justice as a foundation for human rights protection. They agreed that some measure of direct access to the Human Rights Tribunal would advance this goal. This kind of consensus among those used to acting as adversaries is telling.
While few deny the need for reform, not everyone has endorsed the current proposal. Some have suggested that these reforms have been developed by and for lawyers who would be beneficiaries of the new scheme. The idea that lawyers pursue human rights work because it is profitable to do so is misguided. Human rights lawyers, those working with the Ontario Human Rights Commission, legal aid clinics or for private firms share a commitment to finding just resolutions to disputes that advance the public interest for an Ontario free of discrimination. Other critics have raised concerns about process and the extent of the Government’s consultations. Given the discussions which gave rise to this set of proposals and the many studies and consultations which have preceded this round, it is difficult to imagine any views on the matter remain hidden. Finally, still other critics sensibly have focused on the aspect of the proposals which has yet to be fleshed out – namely, the provision of legal support to those seeking to take advantage of direct access. Sorting out how this will work and ensuring adequate funds are allocated to the task will be crucial to the success of the human rights system in Ontario.
The Government’s current proposal is not perfect; it is, rather, a necessary and positive start. The Government should be lauded for not simply adding more reports on the subject of human rights reform but for acting. As the British Columbia experience has demonstrated (where the Human Rights Commission was eliminated altogether), providing access to a tribunal is not enough. Those who care about the protection and promotion of human rights should work with the Government to ensure the vulnerable are represented and that the Human Rights Commission is revitalized. Once the Government’s reform initiative is in place, the Human Rights Commission and the Human Rights Tribunal each will have a vital role to play in ensuring Ontario is defined by a culture of tolerance, compassion, human dignity and equality.
