06/16/2008

A new human rights system for the province took effect June 30, 2008 with the proclamation of Bill 107, the Human Rights Code Amendment Act, 2006.
Background:

Bill 107, the Human Rights Code Amendment Act received Royal Assent in December 2006. Its proclamation on June 30, 2008 will introduce a new system for managing human rights complaints in Ontario. 

Replacing the current process for resolving human rights disputes, Bill 107 will introduce a ‘direct access’ model of dispute resolution. Under this model, complaints arising after June 30, 2008 will be filed directly with the Human Rights Tribunal, which will have the authority to hold hearings or to dispose of applications through alternative dispute mechanisms. In the past, the Human Rights Commission received, processed and investigated complaints. With the new role of the Tribunal, the Commission will instead hold important new powers, including the power to initiate reviews and inquiries.

The new legislation also creates a Legal Support Centre, which will provide publicly funded legal advice and assistance to complainants. These services, however, will be subject to significant accountability and efficiency measures. For instance, Directors of the Centre must act in a financially responsible and accountable manner, establish and administer a cost-effective and efficient system for providing support services respecting Tribunal applications, and establish policies and priorities for providing support services within the financial resources available.

The Tribunal’s Rules of Procedure:

The Tribunal’s Rules of Procedure, effective July 1, 2008, will have a significant impact on the management of human rights litigation. Imposing tight time frames for responding to complaints, the Rules also lay out a long list of powers for the Tribunal, including the ability to lengthen or shorten any such time limit, to require the production of any document, information or thing, and to provide assistance where reasonable to produce the information, and to consider public interest remedies.

A Respondent must file a complete Response to an Application (i.e. human rights complaint) no later than 35 days after a copy of the Application was sent to the Respondent by the Tribunal. The only exceptions are where the issues in dispute are the subject of one of the following: a full and final release signed by the parties, a civil court proceeding requesting a remedy based on the alleged human rights infringement, or a complaint filed with the Commission. The Tribunal will no longer accept preliminary responses as the Commission did under the old system. The Applicant will have no later than 14 days after the Response was sent to the Applicant to deliver a copy of his/her reply.

Tight time frames also apply to the disclosure of documents. Under the new Rules, parties will have 21 days after the Tribunal sends a Confirmation of Hearing to deliver a list of all “arguably relevant” documents in their possession, and a copy of each document on the list to the other party or parties. While privileged documents need not be produced, these documents must be described along with the reasons for claiming privilege. No later than 45 days before the first scheduled day of hearing, each party must deliver a list of all documents upon which it intends to rely along with copies of each or confirmation that the document has already been provided.

If requested by the Applicant, the Tribunal also has the power to order interim remedies provided the Application appears to have merit, the balance of harm or convenience favours granting the interim remedy requested, and it would be just and appropriate to do so. Other parties will have an opportunity to respond to such requests.

Process for Existing Complaints:

Human rights complaints that remain outstanding as of June 30, 2008 will be dealt with through one of two possible routes:

1. Until January 1, 2009, the complaints may be continued under the old human rights system. Should the complaint still be outstanding at this time, the complainant will have another six month period (until June 30, 2009) to file an application on the same subject with the Tribunal. Applications to the Tribunal that relate to outstanding claims between January 1st and June 30, 2009, will be dealt with in the same manner as new applications filed after June 30, 2008.

2. Between June 30th and December 31, 2008, individuals with outstanding complaints may abandon complaints made under the old system and file an application with the Tribunal under an expedited process. This option is suitable for less complex complaints and those without significant public policy ramifications.

Analysis:

Although the changes made under Bill 107 exclusively concern the enforcement process for human rights disputes, it is also likely to alter the dynamics of how human rights issues are managed. Municipal employers may prepare for the new human rights system in the following ways:
  • Review outstanding human rights files and discuss strategy with legal counsel;
  • Review return to work and accommodation policies and internal dispute resolution policies and procedures, including accompanying investigation procedures;
  • Review documentation and record-keeping practices to ensure documents and appropriate records of discussions are kept in order to respond to an application;
  • Review organizational policies and practices to identify potential systemic barriers or other human rights issues;
  • Establish or review existing protocols for staff to follow when a government official arrives to conduct an investigation or inspection; and
  • Provide additional training to individuals responsible for human rights to ensure increased familiarity with existing/new policies and facilitate a proactive approach to dealing with human rights issues to meet new challenges under Bill 107.
Action: For your information.