Assemblée législative de l'Ontario

ONTARIO HUMAN RIGHTS COMMISSION
MARY CORNISH

FAIR RENTAL POLICY ORGANIZATION OF ONTARIO

CENTRE FOR EQUALITY RIGHTS IN ACCOMMODATION

CONTENTS

Wednesday 2 February 1994

Ontario Human Rights Commission

Mary Cornish

Fair Rental Policy Organization of Ontario

Robert Herman, chair

Philip Dewan, president and chief executive officer

Allan Weinbaum, board member

Centre for Equality Rights in Accommodation

Bruce Porter, coordinator

Grace Permaul, staff lawyer

STANDING COMMITTEE ON GOVERNMENT AGENCIES

*Chair / Présidente: Marland, Margaret (Mississauga South/-Sud PC)

*Vice-Chair / Vice-Président: McLean, Allan K. (Simcoe East/-Est PC)

Bradley, James J. (St Catharines L)

*Carter, Jenny (Peterborough ND)

*Cleary, John C. (Cornwall L)

*Curling, Alvin (Scarborough North/-Nord L)

*Frankford, Robert (Scarborough East/-Est ND)

*Harrington, Margaret H. (Niagara Falls ND)

Mammoliti, George (Yorkview ND)

*Marchese, Rosario (Fort York ND)

*Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgienne ND)

Witmer, Elizabeth (Waterloo North/-Nord PC)

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Abel, Donald (Wentworth North/-Nord ND) for Mr Mammoliti

Conway, Sean G. (Renfrew North/-Nord L) for Mr Bradley

Fletcher, Derek (Guelph ND) for Mr Marchese

Murdoch, Bill (Grey-Owen Sound PC) for Mrs Witmer

Clerk / Greffière: Mellor, Lynn

Staff / Personnel: Pond, David, research officer, Legislative Research Service

The committee met at 1056 in the Trent Room, Macdonald Block, Toronto.

ONTARIO HUMAN RIGHTS COMMISSION
MARY CORNISH

The Chair (Mrs Margaret Marland): I call this meeting of the standing committee on government agencies to order as we continue our review of the Ontario Human Rights Commission. We welcome Mary Cornish. Thank you for being a little early, because our first deputation was not able to be here. Do you wish to make an opening statement?

Ms Mary Cornish: I understand the members of the committee have invited me to appear today. I'd like to give you, before I hand it over to questions, a brief review of some of the recommendations the task force report I chaired made concerning the Ontario Human Rights Commission.

As you know, my task force report was in June 1992, so it's now a year and a half later from that. Actually, I had recommended the creation by this point of a standing committee on equality rights. I had hoped that by this time we might have moved on and have been enforcing and dealing with monitoring a new human rights system in Ontario. As you all know, that is not the case. The legislative timetable the task force had set up was that a new system was to have been introduced in the fall of 1992 and passed in the spring of 1993.

While I and members of the task force are quite concerned at the complete inaction on the task force report, I also want to say, as we indicated in the task force report, that the issue of equality rights in Ontario should be a non-partisan one. Certainly the government has the responsibility for implementing the amendments, and for that it needs to be held accountable. At the same time, the task force report called for the opposition parties to work in a partnership with the government to reform the system. For the purposes of this discussion, I understand the committee wanted a more extended time to deal with questions, so I would certainly appreciate it if the topic were approached in a non-partisan fashion in an attempt to actually find a solution to the problem. I'll just start with that background.

I think all of you have received a copy of the task force report. It's rather thick, and it's not that great bedtime reading or that simple to read, so I'm going to give a brief overview of it. I also had sent over this morning, in case there were to be discussions in terms of the interrelationship of the Human Rights Code and the Employment Equity Act, the submission I had made in the summer on the Employment Equity Act itself.

The vision the task force had was to have a human rights system that was an integrated system and one that focused on systemic discrimination, that this was the crucial need, that patterns of discrimination were quite deep-rooted and that the entire system needed to be reworked in order to address those issues. The system we proposed really restructured the Ontario Human Rights Commission. We proposed a system where there would be a combined equality rights tribunal that would consider pay equity, employment equity and human rights. The system had a Human Rights Ontario, which was the renamed Human Rights Commission, and that commission would operate in a way in which it was not responsible for the day-to-day filing of human rights complaints. The human rights adjudicative system would in fact be set up more like other adjudicative systems, like the labour board, for example, the Ontario Municipal Board, a variety of those boards where you just file a complaint with the actual tribunal you're adjudicating in front of.

The Human Rights Commission itself: We had found in our review of it that many of the difficulties it lands in result from the conflict in its responsibilities. One of the most important things, we thought, was to restructure it so that it did not have to deal with the enormous amount of daily individual complaints it receives, that if it focused on systemic complaints it could set up a system whereby more and more individual complainants would not have to file those complaints because matters of a systemic nature had been resolved. Employers, landlords, service providers would not be faced with as many individual complaints because they would be working with a revamped commission to try and deal with some of these issues on a more widespread basis.

We also tried to set up the commission in a structured way so that some of those responsibilities were divided up. You'll see that in the commission we proposed, there were to be a number of commissioners. Let's just take one of the ideas we had; it may be something people want to discuss.

In the task force hearings, certainly we found a disillusionment with the process from both the equality-seeking community and also from the respondent community. Both communities appeared to have lost faith in the process by which a complaint would be dealt with, both from the point of view of the complainant and from the point of view of the person who was responding to it.

One of the things we wanted to do was to restructure the commission so that, for example, there would be a commissioner for compliance services. This commissioner would be somebody who came from the respondent community and who was in fact a leader in that community, either from the landlord community, the employer community, the service-provider community: a leader in providing equality rights in their particular area. That commissioner would then be responsible for liaising with those communities to assist them in sorting out how to comply with the act. That would be a specific role. The respondent community would have somebody within the commission they could actually work with, as many people wish to avoid actually having a hearing or getting into the more adversarial aspects of the process.

That was one idea we had. The other was this whole concept of having equality rights centres throughout the province which would now be responsible for providing the advice and assistance to complainants, as the commission would no longer have that responsibility or conflicting role. We suggested a commissioner for advocacy services who would be responsible within the commission for funding these equality rights centres. You would then have a commissioner responsible for essentially the respondent community and a commissioner responsible for the equality-seeking community.

There was also to be a commissioner responsible for policy and research and a commissioner responsible for education. Education was seen as a very key function. It was also a way of restructuring the commission so that commissioners in fact had a role. Many commissioners spend a lot of their time -- their meetings are taken up with dealing with individual cases that come before them; they have to decide whether to appoint a board or not appoint a board, so they get into the minutiae of reading large files concerning this issue. They wouldn't have this role any more, but now you would have a set of commissioners who actually had very distinct responsibilities that were directly related to their strategic mandate.

The other recommendation related to the commission actually having regulation-making authority. The way we had restructured the commission, having, for example, a commissioner responsible for the respondent community and one for the equality-seeking community, was also to provide some balance within the commission as a whole. Once you'd provided that kind of balance, you could in fact give the commission this regulation-making role, because many people often complained, from both communities, that it isn't certain what is right and what is wrong. In other words, they need more certainty in what is considered to be improper conduct. For example, in the US around disability issues, there are very specific statutes which outline in some detail what accommodation is required, or not required in certain circumstances.

One of the issues we looked at is whether by giving regulation-making power, which would only be undertaken once you'd had a full public consultation, you could provide more definition as to what are human rights and what are human rights responsibilities.

In relation to that as well, it brought up the whole role of government. As you know, government plays a number of roles in the province. It plays the role as the major employer. It plays the role as a major service provider. It plays the role of the keeper of the public purse, and it plays, in the normal situation, the maker of regulations and law. It puts a government in a very conflicted relationship to a human rights commission, which is why we attempted, you'll also see, to separate the appointments process for the commission and the commissioners from the government itself by setting up a separate appointments committee, to ensure that the process was independent and to recognize that the government did have this number of roles, roles that were quite legitimate.

Instead of having a regulation hearing -- well, now regulations wouldn't even come before a legislative committee. It would just be whether the cabinet decided to pass the regulation, and it may decide to or not based on the consultation it had. But we envisaged a system where the commissioners would hold a hearing and the government would appear in front of the commissioners, and it may well separate out its roles. It may say, "As an employer, we find these accommodation guidelines in relation to disabilities," for example, "just too overwhelming. Do you realize it would cost us this amount of money to do that?" It could also say, in relation to its role of the public purse, either "We think citizens would think this was appropriate," or not. It could also, in its other role as a defender of equality rights, say, "But we need this, because the government should be a major defender and promoter of equality rights within the province." It allows you to separate out those roles and know when and how those roles are being played out.

Those are some of the ideas in the report, as I understand it, and from only briefly looking at the paper this morning I understand you heard from the commissioner yesterday. I can tell you that I don't have any information on what's happening with our report, so I can't tell you at what state it's in. Certainly there has never been any public response to the report, and as I understand it there are no current legislative amendments being brought forward.

Since the report, the changes I have noticed in the commission are that certainly there is a higher level of cases going forward to boards of inquiry than had gone forward before. I don't think, from what I can perceive, there is any significant more staffing of the commission in terms of its resources.

We continue to experience, as a law firm, very long delays in terms of the complaints being put forward. It's probably true that there is in some ways less of a backlog, except that I have quite a serious concern, which was also a concern expressed in the report, about how the process of attempting to get rid of a backlog leads to a process of settlement which I don't think is the best way to go about to ensure that the equality rights and responsibilities of everybody within a particular complaint are respected.

It has put an enormous pressure on the commission. For example, the legal staff are now attempting to carry forward all these cases that are going forward to the boards of inquiry, and because they still have carriage, everyone has to wait until there's a lawyer available to do it. This is a whole problem with the commission continuing to have carriage and yet being under a very serious responsibility to get the cases put forward. I think part of the problem is that, with the best of goodwill, the structure just doesn't work, and it needs somebody to pass a structure that does.

Those are my comments to begin with, and I'd be pleased to answer questions.

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Ms Margaret H. Harrington (Niagara Falls): Basically, you are saying you want a very basic change here, a change in the code, which would be opening up some legislation.

First of all, I want to say how important I believe education is and that whatever the future structure of the Human Rights Commission is, I would like to see education given a very prominent part to play. I believe it's all about changing attitudes and enriching the quality of life for every citizen of this province; not just answering one individual complaint, but having that reflected in attitude and behavioural changes for everyone.

Yesterday we had an extensive presentation from Ms Brown, and she talked about eight initiatives that have been going on in the last year. Are you familiar with what she told us yesterday? Have you got a copy of what she said?

Ms Cornish: No.

Ms Harrington: I think it would be good to give you a copy.

Ms Cornish: That would be great. There hasn't been a lot of public education of the initiatives; let's put it that way. If somebody has a list of them, maybe I could comment about whether I've been aware of them.

Ms Harrington: Yesterday we heard that there is substantial change going on. Mind you, it is not a change in the code, not legislative change but regulative types of changes. As she put it, they're changes from the inside out, looking at their personnel, their attitudes, their way of working, their process. It seemed some very substantial hands-on improving of how things work, certainly the amount of case load and how it's processed, and a little more basic than that too, in the attitude towards the people who are complainants.

I was going to ask you if you felt this was the direction you would approve of. I gather you would want to go further. Your last statement in your presentation was that the structure doesn't work, which is very --

Ms Cornish: Basic.

Ms Harrington: Yes. So do you feel the initiatives we heard about -- there were eight of them -- are in line with the way you want things to go?

Ms Cornish: I don't know about these initiatives. I'm just quickly looking through it. They appear to be related to attempting to make the current system more accessible by ensuring -- for example, take the customer service program. It was a fairly basic part of the task force report, and what was said at the time was that there had to be a more consumer-oriented perspective on the part of the commission in how it handled its mandate, that it had historically handled its mandate in the fairly paternalistic fashion it knew how to deal with human rights, and of course had carriage of it so was able to proceed along on that basis.

Part of the really fundamental change the task force saw being initiated is to take away their carriage of each complaint, and that hasn't happened. In my view, some of what is being done here is an attempt -- and given there have been no legislative amendments, it's probably an appropriate one -- for them to try within their current mandate to figure out how to make it work more effectively. But it still leaves them with being driven by this case load and being driven by having to make the decisions in each and every complaint.

This sounds fine, except I know that cases can take two years to be assigned to an officer. It may be great to have a quality assurance program, but if you don't even have an officer investigating your complaint, you don't feel too assured. Maybe when you get there, the person has more of a customer orientation and there may be better standards for how you deal with it, but you still have a fundamental problem. Being driven by the case load also means that when you get to the investigative process there's only a certain amount of time. It's quite routine that we get letters saying, "Thank you, but there isn't an officer assigned and there won't be one assigned for another year." It's a real problem.

Ms Harrington: There's much more to go into, so I will let my colleagues continue. I just wanted to throw out one thing for all of us to think about for the system you were proposing. We haven't seen any costing on it, so I'd just like us to think about what that might cost as we're thinking about your suggestions.

Ms Cornish: People raise this. At the time we proceeded I actually attempted to get it costed, but the Attorney General's office didn't have the time to cost it before the report was due. I can't imagine that the government hasn't costed it since. I would welcome the discussion about the relative merits of cost versus the advantages of the system, but we never get down to that. This is just a little rumour that goes around, that it's not being implemented because of cost. I get it as a little rumour; nobody ever actually says, "This is it," and we don't get it.

I'd be glad to have somebody cost it and then I can see whether I think the costing is accurate, and then we can start to deal with what the costs are of people who sit around and wait and have nothing happen about their human rights. Today we have a report on racism in the correctional system. That's something that could have started to be dealt with a year and a half ago, and there's a whole cost to that with a system that doesn't operate on a systemic basis. I'd be glad to have this discussion about cost, but it would be good if we could get out into the open what the concerns are. It appears that the commission's been told: "Move ahead and do your best with what you've got. That's it." That's my sense. Nobody tells me that, nor was I consulted about what they're doing, so I can't tell you.

Mr Rosario Marchese (Fort York): I find your presentation very interesting, comprehensive as well in terms of the scope you're attempting to get at by way of changes. I'm very much interested in the systemic changes, because unless you get to systemic problems you can't ever begin to deal with all the individual cases that come before you. It's going about it the wrong way by dealing with individual cases to get to the systemic. In fact, you may not ever get to it unless you deal with it over a long time, case law upon which you build and then you change the system. By that time all of us would be dead, I suspect. I'm interested in these systemic changes and would be interested in the opposition's remarks to see what they have to say about that.

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I have some questions around accountability. You talked about giving regulatory-making power to this new board before which the government would appear as well. To whom would they be accountable? The appointments process would be done by them, presumably very fair and based on people's skills and the needs, but ultimately to whom would they be accountable?

Ms Cornish: The way the structure worked was that the Premier would appoint an equality rights appointment committee -- I think I said there were three people on that -- and the equality rights appointment committee would then appoint the chief people in the system, the chief commissioner and the commissioners, the head of the tribunal. The top people were appointed by that independent committee, but the government appointed the people who did it.

Mr Marchese: I see. They would be accountable to the government, presumably.

Ms Cornish: Right. But there was more accountability built into it than that, because I appreciate the concern: This is a major public responsibility and there needs to be accountability of everybody with respect to it.

That was one level of the accountability. The other was establishing a standing committee on equality rights to which the chief commissioner reported every year. I've set out a specific set of responsibilities she would have to report on: "During the last year, to what extent did you reduce the state of discrimination in this province? In what way did you do it? Did you emphasize education? How did you do it?" There would then be some ability to measure progress, because one of the most frustrating things about this area is trying to measure whether things are getting any better. It's hard to see it, so you need people looking at it from that perspective too.

The chair of the equality rights tribunal would also report back to the committee, not on the basis of how they decided cases but just in terms of trying to sort out the process by which cases are being dealt with.

So there were a number of ways of attempting to get some accountability.

Mr Marchese: But ultimately, presumably the government would be able to give direction to the equality rights committee and that body would then deal with all the others down the line. Is that it?

Ms Cornish: Yes. The other side of it is that there is precedent for having a commission develop regulations. This isn't the only one. In the securities field, for example, the securities commission develops regulations. I'm just trying to say that it's not unheard of.

Mr Marchese: I'm not disagreeing with the concept of giving the commission the regulatory power. But if you were to give them that regulatory power, would that equality rights committee be ultimately accountable to the government, or in giving them the regulatory power, has the government disassociated itself in terms of being able to give direction?

Ms Cornish: I'm just trying to think how standing committees work. As I understand it, a standing committee is composed of all members, and presumably the government ends up being able to outvote the opposition. But in the end, the standing committee could not revoke the appointment of a commissioner. In other words, there's the public accountability in that you come forward, but it wasn't suggested in the report that the standing committee actually would revoke appointments. In that sense, it's not as directly linked, but it's a public process.

Mr Marchese: I'd like to pursue that, but I want to move on to another question. I think we have some concerns about accountability in that regard.

Once we get to the systemic changes, if we were to agree to that, presumably the whole world out there might be very concerned about the power such a group of people would have to deal with these issues of systemic problems. I presume the outcry would be big. The employers would not be very happy about having to deal with the power such a group would have to be able to get to systemic changes. Do you envision a public outcry by some sectors of society with respect to this, or not?

Ms Cornish: I think it's a matter of how you fashion the commission as a whole. One of the things we thought was really important was to give this commission a new start, a start at which it developed a new credibility both among the respondent community and among the complainant community; that if you developed this independent appointments process in which people felt satisfied with the process, you could develop credibility for the commission and for dealing with it that way.

The other side of it is that under the current process, we don't really have any regulations under the statute. For many people, there was a whole issue of whether the guidelines the commission had developed on disability would become regulations. As I understand it, they didn't go any further after they got through the government process and the government didn't want to do it. You have the government itself making decisions but having a conflicting role itself.

It is the attempt to set up an independent process. Maybe we should give it to the Supreme Court of Canada; I'm not sure. But you need to set up some process by which people feel it is fair, that they've had consultation. If you had consultation about the regs it would be a lot more open process than regulations are currently.

Ms Jenny Carter (Peterborough): As has been mentioned, Rosemary Brown said there is an inside-out renewal of the commission going on, and I think she presented quite convincingly that real changes are taking place.

You obviously are concerned that there be a systemic approach to these problems, which I think we all agree with. With the employment equity legislation coming into force, will not that very much do that, certainly in that department? Presumably the number of cases coming to Human Rights would be reduced in any case by other systemic initiatives taking place outside the Human Rights Commission. In any case, there has to be an outlet for individual problems as well, and I think we all hope they will diminish over time. But can you not see the Human Rights Commission as being the place where those go even though the systemic approach is being taken elsewhere?

I also had the impression from Rosemary Brown that the commission itself does do systemic work. On page 9 of her speech she mentions a regional services and systemic investigation branch. Then towards the end of her speech she sums up some of the initiatives the commission is now undertaking. I don't know whether I can read them all, but she's saying:

-- There will be only 250 files that have been around for longer than three years.

-- "67% of all the cases closed thus far [this year] were closed in less than six months."

-- They've "undertaken innovative initiatives to encourage voluntary compliance with the Human Rights Code."

-- They've "concluded negotiations with the Ministry of the Attorney General and the Ministry of Government Services to ensure that people with disabilities have access to the province's courthouses."

-- They're working with the city of Toronto over the selection of firefighters.

-- They're publishing documents, "providing the province's public and private secondary schools with a resource book entitled Teaching Human Rights in Ontario."

-- They "produced a policy statement on the subject of Sexual Harassment and Inappropriate Gender-Related Comment and Conduct."

It seems to me that what they're doing goes quite a bit beyond just dealing with individual cases and also that they have improved their performance there. I just wondered how all that seems to you.

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Ms Cornish: The issue of the Employment Equity Act was addressed in the report in terms of having both the chief commissioner for human rights in Ontario and also the commissioner for the Employment Equity Commission work together. Certainly in relation to the employment field, the Employment Equity Act is a major step forward in terms of attempting to deal with equity issues, as was the Pay Equity Act, another attempt to deal with systemic issues.

But there are a number of problems or parts of it left out. For example, the Employment Equity Act leaves out a whole set of people who aren't covered under it because of the number of employees necessary before coverage kicks in. There isn't an ability for people to complain during the process. There is a whole set of reasons the employment equity process is quite limited. Furthermore, it doesn't apply to services and whole other areas of the mandate of the commission that --

Ms Carter: Obviously, I didn't think it would cover everything, but there are other things, like the Advocacy Act, for example, that should pre-empt some problems.

Ms Cornish: The Advocacy Act in terms of dealing with systemic discrimination?

Ms Carter: I think it will mean that some people will not get into difficulties that otherwise they might have got into.

Ms Cornish: What I would be careful about is that it's easy to read a paper -- I mean, I look here and see the regional services and systemic investigation branch. There's been a systemic unit for years, and the systemic unit had its money taken away from it in order to deal with individual case load. As I understand it, they've now just got a new head to this part of the branch, but if you ask them what major systemic initiatives the branch has actually been able to do, I think you'll find it isn't very significant.

I agree that this is an attempt to restructure, but I think you also have to look at the reality that putting out a pamphlet or doing this, given the magnitude of the problem in the province, is not adequate.

In terms of the other issues, let's go back and look at it this way: What are the downsides of attempting to have a system that really does work? The other side is, is there any measure in here of whether this is reducing discrimination, and in what way? If you look at it, you'll certainly find efforts. The commission, Rosemary Brown and the people involved in it, I've always found to be people very concerned about trying to carry out their mandate the best they can, but I still go back to my basic view that they're hampered by a structure which doesn't work.

Mr Alvin Curling (Scarborough North): It's quite a privilege for us to have you come when we are looking at the Ontario Human Rights Commission in this committee.

When your report came out, I knew how extensive it was. I was aware too that the government was putting pressure on you to finalize it quickly so it could act on it. It's been a year and a half now, and the minister hasn't indicated that she has even read it. We thought that since they were in such a hurry -- that isn't partisan; it's a fact. There's no formal report to the House about how she feels about this report, whether or not she likes it and the recommendations.

I don't expect her or the government to like everything in your report, because in my party we don't like everything in your report. We feel there are some very good recommendations. As a matter of fact, the human rights commissioner yesterday stated that some of the recommendations are being incorporated in what she's doing now. As you hear the government side alluding to questions within it, I'm telling you they are also churning it around but have not formally presented it and said, "Let's discuss this and say where it's going to go." Nothing formal has been done, and I think the suspicion of politicians is based upon these things: Reports are made and no one acts on them. I feel it is about time that we come out clean and say let us look at this report and follow through on it.

You said something that interests me very much, that we should not be into this as partisan stuff and should look at human rights as an issue on which all of us work together.

You criticize in the report the lack of independence of the commission, and in your discussion here you spoke of certain areas of how they could be independent, the format. Maybe what could be done is that the commission, as you said, report to the Legislative Assembly. I'm looking at the Ombudsman process now, and I think there are certain things that should be done better in the process of what the Ombudsman does and her report to the Legislature. Do you see that the Ontario Human Rights Commission, reporting to that legislative standing committee you suggest -- to begin with, in a human rights case against the Ministry of Citizenship, regardless of how independent and how arm's-length, as the commissioner says, it's difficult to really deal with it, because you're talking about her boss, mark you, her boss that she reports to. How do you see a commission like that reporting to a standing committee? Do you find there'd be more independence on behalf of the commission?

Ms Cornish: A major part of the report was attempting to achieve independence for the commission. Also, having a committee on equality rights within the Legislature I thought would be a signal to everybody that it had a non-partisan, important role in our society as legislators defending equality rights and promoting it.

I'll give you the specific areas I asked the commission to report to the committee on. It was supposed to be each year, or, if required, they could come forward more often than that; they were to report on the state of human rights in the province, their own and others' activities in reducing the amount of discrimination in the province; their recommendations for what changes they thought needed to be made in order to increase the rate of reduction of discrimination; and any necessary funding requirements they thought they needed to function better, because of course funding has always been a major problem. When the government can control the amount of staff and resources you get, that can really in essence control whether or not you can do anything about systemic discrimination. If you don't have enough money to do it, you can't carry it out, because you still have people at the door arriving with complaints.

So it was some ability to have the commission come forward and say, "Okay, we're here and we're here and we're there, but we have this problem, we need this money, we need these areas, or" -- and this is another part of the report I'd like to emphasize because it's really important, and I think Ms Harrington was mentioning it: education, that if everybody were encouraged to take a more proactive role themselves and government itself, we wouldn't then have people complaining to the commission about matters which could be resolved by proactive measures in terms of service and a variety of other things which employers could be doing, which the government could be doing.

That way, you may well be able to say to people and say to the commission when it comes forward, "We actually think the money should be going in this area," and you could be emphasizing getting things to be operated proactively in landlords: Can we sort out how landlords will develop new policies around renting so they don't discriminate against people who are on welfare? We need some kind of overall policy across the province so we don't keep having individuals going off to the Human Rights Commission and complaining about what happened with their landlord.

There are a variety of ways in which, when you start to look at it on a broader basis, you could do it. A committee could bring its skills to that as well, and being a public conscience as the legislators.

Mr Curling: Just a quick comment on a section you mentioned. The commissioner spoke about "from the inside out." As you know, the commission didn't even have a policy on racism. I was concerned that a commission that has been in place for more than 30 years had a sexual harassment policy come about, yet on the basis on which it started, race and creed etc, not even a policy on racism was there. They're late coming into that fold.

I want to address the area of systemic division more than systemic discrimination.

Ms Cornish: Within the commission.

Mr Curling: Yes. I got a glimmer of light when you were talking about all these equity places are being developed, and what is happening in the Human Rights Commission. We take this part and set up a commission, the Employment Equity Commission, and think we have solved it. You took pains to say the systemic division is more than the workplace. What has happened is that we've put funding there and set up another bureaucracy, when we could have an equity tribunal board, I think you called it, that could deal with these equity issues.

Do you see this? Now the Employment Equity Commission is somewhere out there floating without a regulation -- not yet proclaimed, anyhow -- and trying to get its identity out there, and here is the Human Rights Commission having its systemic division. People are coming forward now, at this moment, to the Human Rights Commission, and doesn't this make people see that they cannot be addressed legally? Really, if I come to the Human Rights Commission with a complaint right now, there is nothing addressing me in my employment equity because there is no such thing as an Employment Equity Commission now. Isn't this a kind of disillusioning aspect of how we go about making laws?

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Ms Cornish: Certainly it was not my recommendation and isn't my recommendation that the Human Rights Commission and the Employment Equity Commission be collapsed into one commission. What I recommended was that the adjudicative body that was established to actually hear complaints could be collapsed with pay equity and employment equity and human rights.

The reason I don't see that the Employment Equity Commission should be collapsed with the Human Rights Commission is that I think we do need, in relation to employment, a very specific body that can carry that mandate and proceed forward with it. I'm quite committed to that as a concept. I do think, however, that when you get to the final complaint you can train adjudicators who can deal with those equity issues.

But to go back to this issue currently, one of the matters that came up in relation to the Employment Equity Act was the relationship between complaints under the code and complaints under the act, what would happen to individuals coming forward. As we've indicated, the act isn't in force yet, and then even when it is in force individuals don't have rights to complain.

The process that was being developed was that at a certain point an employer may be able to say, "I have a plan, which is a defence to this claim." We don't know when that's going to be proclaimed, but when it is, then you're going to have to deal with the interplay between it, buy at the moment it isn't a problem.

Mr Curling: In terms of the $6 million that was put in place to look at the backlog -- they don't call it that any more; it's case load -- you made a rather interesting comment. You said it really does not reduce discrimination. It may of course reduce the workload, because you have put some label behind it and it has reduced the number of files. The paper reflects it's a miracle. My colleague asked, "Do you believe in miracles, Alvin?" Six million dollars could work a lot of miracles. Give it to me, and I'll do that. The fact is that we're addressing racism and human rights issues. As you said, if we don't have something in place, later on that will build up again. The commissioner made that point also, to her credit, that as we are more sensitive and educate people more about violations of their human rights, more will come forward.

It's hard. Some people want you to make comments about the human rights commissioner, a statement about the direction she's going now. I give her full credit for being the first to admit that there are so many things wrong. As a matter of fact, a government member over there in our hearings in the past called the commission a joke. It's rather sad to know that a government member calls the Human Rights Commission a joke. But the fact is that there are serious concerns there. What comment would you have in light of the fact that one of the problems found was that racism existed in the Human Rights Commission? What could the Human Rights Commission do now to raise its image in a positive way? Are there things that could be done to build back public confidence in the Human Rights Commission?

Ms Cornish: One of the things that was recommended in the report was that there be established an advisory council to the commission, that the advisory council be composed of representatives from the equality-seeking community and also from the respondent community and that the chief commissioner and the commissioners consult regularly with that advisory council to try to get some fairly prompt feedback and a relationship between those communities.

I think a lot of what occurs often is misunderstanding about what the commission is doing. Some of it is correct, in that I don't agree with some of the things the commission's doing so I sometimes am critical for proper reasons, if you know what I mean. But at other times people just don't understand what human rights laws are about or what it means to enforce them, so I recommend an advisory council or some ability to actually bring the public into the process somewhat. You are then able, if the commission is operating in a particular area, to have either a respondent community member saying, "This is just too hard for us; we can't do that," or the equality-seeking community saying: "You're not moving tough enough on this. Your failure to take initiatives in this particular area is really affecting our people."

The other side of it, that I've often experienced, is that when you actually consult meaningfully you get very good ideas about how to proceed. There are both skills and knowledge within the respondent community about how it may be able to help in this process, and similarly in the equality-seeking community, and the commission has to reorient itself to see itself as drawing on that expertise.

I appreciate that it's necessary to have an internal process, but as you can see, the internal process has not been a public one. People don't know what it's about. They haven't involved the community in that process, or maybe they have and I don't know about it. A year and a half later, there may be some significant progress, but people don't understand that and that isn't communicated.

This is always the problem. In some ways we can always understand why something hasn't happened, but what we've got to do -- we have a new commissioner. She's only just got there and there's only so much she can do, so nobody likes to be too critical in that sense. That's why it needs leadership from all the parties to actually decide on the direction and move it forward.

Mr Curling: The aboriginal people are concerned that they are asked to operate within a policy that is not sensitive to their needs. Do you believe there should be a separate section for the aboriginal people, or that the Human Rights Commission should be much more sensitive and incorporate the aboriginal people within the entire policy? The process of justice, bringing things to justice, is completely different in the aboriginal community.

Ms Cornish: I consulted with the aboriginal community at the time, and basically their response was, "We weren't consulted about your being appointed, and we're not sure the Human Rights Code should apply to us because we are seeking self-government and we have not dealt with the issue." I don't know what their current position is on whether or not they actually wish to be part of the code and how they see that being done, but certainly at the time they did not make recommendations with respect to it.

What I attempted to do in the report was to at least fashion a process that, if they wished to be part of it, would better facilitate. For example, in the tribunal, I established two levels of decision-making, both a mediative role and an adjudicative role. People may come in and go solely through the mediative role, because many in the aboriginal community find the adversarial adjudicative process quite offensive to their culture. That's why there has been this reporting of circles of justice in relation to the criminal justice community, where the community may sit and discuss an issue as opposed to putting somebody in the stand and examining and cross-examining them. I attempted to set up an adjudicative system that would be respectful of different cultures' ways of dealing with a dispute so that you didn't necessarily have to have one that was not appropriate.

I would not comment on whether they should or should not be part until I've actually heard from them more fully about what they want to do, and then I could make a comment after that. But certainly at the time they were not happy with the process.

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Mr Curling: Do you feel we're not making enough effort to have them included but in the consultative process?

Ms Cornish: It's quite specific. At the time, part of the concern of the aboriginal community was that this was not an issue. They were just in the process of the discussions around the accord, so at the time they were saying, "This isn't an issue we want to devote time to at the moment," and I can't really comment because I haven't had discussions with them since then.

Mr Curling: You don't feel we should at this moment, even though the Constitution and the accord are over --

Ms Cornish: Oh, no. I'm not saying you shouldn't now. I'm just saying that I don't know what their current position is, and there may well be ongoing discussions I don't know about.

Mr Curling: How much time do I have?

The Chair: You have one minute and 40 seconds.

Ms Cornish: You could do a zinger.

Mr Curling: I was thinking about going into an area, but I said to myself, "If I start on that..." Let me go back to your report. I can't remember the phrase or title you used for those community groups.

Ms Cornish: Equality rights centres?

Mr Curling: Yes. Who will be assessing within those? This might take a longer time for you to comment. When I read it, I wondered how qualified these people were. You're going to say, "Of course they are within the community and they can assess whether or not that case goes forward." The question that came to my mind and stays with me was to wonder what qualifications they'd have in both intake and assessing whether that moves on to the second stage.

Ms Cornish: Can I first say that anybody under that system has the right to walk up to the door of the equality rights tribunal and file a complaint. You don't have to go through the equality rights centre to file a complaint. The system is based on somebody being able to walk into the tribunal and say, "I have a complaint." Just in case there was some misunderstanding about whether this other equality rights centre was like another gate --

Mr Curling: It was my fault.

Ms Cornish: What it is a gate to, in a sense, is a gate to resources. In other words, you can walk up to the door of the equality rights tribunal and file your complaint, and I had structured the tribunal so that people there could assist you if you hadn't gone to any of these centres or if they were busy or whatever, or you may just write it out.

The centres would be staffed with what I referred to as advocates. That's the term I used, partly because I wanted it to be a combination of both lawyers and paralegals. There's a lot more of a move now to attempt to have a broader range of people involved in assisting in bringing forward cases. This isn't just in the human rights field, but in many fields now people are being trained to deal with those kinds of issues who aren't necessarily lawyers. For example, in the labour field the business representatives may arrive at the board and argue cases themselves. Certain fields have developed an expertise in the ability to present cases.

There's a whole chapter in the report about training, training people involved in the system. Certainly it is a major part of the system that those people in fact have to be trained, but what it does is give control to the individual complainant to have somebody whose only interest is theirs. That's the problem with the commission structure. The interest of the investigating officer is not just the complainant's interest. The investigating officer has to balance the respondent's interest, the complainant's interest, and then the institutional interest of the commission in terms of whether they've got to get cases settled or what has to be done.

The purpose of having these centres is to provide some resources that complainants can actually access. Also, I saw it as a major way to attempt to have some cost savings. You would train paralegals; you would try to de-emphasize the legalities of always having lawyers involved in these disputes. You would also, on that basis, therefore have less people applying for legal aid and you would have a system in which you actually developed people with expertise. What often happens is that if somebody goes out to a lawyer, there are not that many trained human rights lawyers. Your average lawyer in some town doesn't necessarily know how to present a case on racism.

Overall, I appreciate the concern, but I think you could deal pretty effectively with the training of the people in those centres.

Mr Allan K. McLean (Simcoe East): You make it sound so easy for people to be able to issue the complaints they would like to.

Your recommendation 85, third paragraph, says, "The commission should adopt a more open, cooperative relationship with community groups and individuals with human rights expertise and allow them to prepare and develop their own claims, and participate in direction of the investigation, settlement and appointment of the board of inquiry." A pretty broad statement.

Ms Cornish: Wait a minute. It shouldn't say "appointment of the board of inquiry."

Mr McLean: So you don't agree with that recommendation?

Ms Cornish: No, the community groups would not be involved in the appointment of the board of inquiry. It shouldn't say "board of inquiry." It should say "the equality rights tribunal."

Mr McLean: That was the first question.

Ms Cornish: Well, there you go. I'm prepared to delete that. It was getting late on June 29.

Mr McLean: I read several of your recommendations, and I really have concerns about the legal aspect of the whole problem of the commission.

While you're here, I wanted to relate a little bit of an individual's case to you, and I'd like you to indicate to me how this individual, after going through the process we have here in Ontario, could go through what some individuals have to go through and still really not get what she's looking for. This individual was injured in 1989 in Correctional Services, was off work, was let go, wrote to the WCB December 14, 1990, wrote to her member, Mr Drainville, December 14, 1990, for assistance. He never replied or gave any assistance. She wrote back to the deputy minister of corrections. She was told to write to her ex-union president, to go through Human Rights. That was in August 1991. She wrote to Human Rights, Joycelyn Horsford, issued her complaint and it was finally signed in December 1993. The grounds for discrimination were sex and handicap.

This individual now -- and this is only a few months after she finally completed and signed her form, after over two years. She'd gone on from 1989; wrote to the Premier in March 1992. He said: "I cannot get involved in this process. I can't help." She wrote to the WCB, Di Santo. Nothing was done. Here's an individual -- and that's only an example; there are others like her -- who doesn't know who to turn to. What are you recommending in here that that individual should have done two years sooner?

Ms Cornish: Under the system I would have, she could have gone directly to the equality rights tribunal back in -- I don't know when the first date was that she identified the problem -- and filed a complaint and said that the ministry had discriminated against her on the grounds of sex and handicap. If she decided not to access these equality rights centres, she would go and have a hearing. The way I set it up, the hearing, if I recall, is supposed to be completed within 90 days. Alternatively, if she had an equality rights centre -- and there are a whole number set up around the province -- she would go to that centre and the centre itself would assist her to actually file the complaint.

This is the real difference in the process. These time frames don't surprise me at all, that people sit there --

Mr McLean: She's told it'll be another two years before it'll be acted on.

Ms Cornish: I understand, and that isn't surprising. Another thing that might happen -- let's even say that once it is investigated, somebody says, "Why don't you just agree to this?" She may not know too much or she may agree to it, so then her case is settled and is no longer on the case load, but it may not be a very effective settlement. She may have been able to get more, but she may at that point be fed up. When I say to clients, "I can't get anybody to investigate it for another two years," they say, "What is a system that works like this?" particularly if you remain in a workplace or if you are a tenant who needs housing.

In my view, what is needed is a system in which the ministry, let's say, if that is the employer, all of a sudden, within 30 or 40 days, has to go to a hearing, has to file pleadings and say why it didn't discriminate against her.

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Mr McLean: When you're dealing with a ministry, though, Mary, isn't that different from dealing with an individual company? It appears that one ministry is going to try and help another ministry. This individual who was on full-time at Correctional Services is now on part-time and had a heck of a time to get the part-time job.

Ms Cornish: You mean in terms of whether or not the commission wouldn't act because it's a --

Mr McLean: That's right.

Ms Cornish: I don't think that's why they wouldn't act.

Mr McLean: There's got to be a reason.

Ms Cornish: Well, I have lots of people who are like this. The reason is that there's no officer to go out and do it.

Mr McLean: They got an extra $6 million to help take this backlog down.

Ms Cornish: There's no officer there. First of all, you need an intake officer to draft the complaint. It goes back and forth, and that process seems to have taken her a period of time. Then once you have the complaint, the complaint is sent to the respondent. Once it's sent to the respondent, the respondent files a questionnaire. Then it sits until it's assigned to an investigative officer, and that may be two years.

Mr McLean: The other one I have is with regard to landlords who can no longer do credit checks on tenants; they indicate that's contrary to the human rights legislation. As a landlord, would you not be able to check out your tenants' credit rating, the job they have, to see whether they're going to pay their rent?

Ms Cornish: There are a number of issues related to it. There's a board of inquiry going on now in terms of this issue in relation to welfare assistance and a landlord's rules around what percentage of income is spent on rent. For example, for most people on public assistance the percentage of their income on rent is always higher than what a landlord would normally like to see, because their basic necessities involve that. I don't know what the particulars of this are in terms of credit inquiries, but there are a number of issues as to whether certain people may have more credit inquiries made about them than other people, whether credit inquiries are made in relation to single women and not to men. I don't know the specifics of it, but I wouldn't be prepared to say that just overall, credit inquiries may not have a systemic impact on certain people.

Mr McLean: There seems to be an overall broad view, because Mary Wood's rent report said, "Credit checks okay for now," and Human Rights indicates in here that that's discriminatory and should not be taking place.

Ms Cornish: It depends, I would say. I'd have to know more about it to sort it out, but I think you'd have to sort out in what way they were doing it.

Mr McLean: Do you have any views with regard to the commission's views on the pay equity bill that was passed?

Ms Cornish: The commission's views on the pay equity bill?

Mr McLean: In the report you did, I don't see much where you follow up with regard to the pay equity. It's really two different things; I know that.

Ms Cornish: I didn't report on pay equity other than to suggest that there could be a streamlining of the adjudicative processes among the three. I didn't deal with the pay equity process.

The Chair: Are we talking about employment equity or pay equity?

Ms Cornish: I thought he was saying "pay equity."

Mr McLean: The Employment Equity Act.

Ms Cornish: Oh, I'm sorry. Then what was the question again?

Mr McLean: I'm just wondering what views you had about that with regard to the Human Rights Commission and how that will affect your final outcome of the report.

Ms Cornish: I think there has to be quite a close interrelationship between the two bodies, and that's what I recommended in the report, in order that there not be an overlapping between the two particular bodies. I think the specific mandate the Employment Equity Commission currently has will be more than enough to keep it busy for quite a while, so I don't anticipate there's going to be a problem of a lack of things to do.

Mr McLean: You mention in your report with regard to education that we should be proactive, recommendation 75. What are you referring to really when you make those comments: "key human rights enforcement strategy to ensure, advance and maintain a culture of equality; human rights...has a unique and important role to play in the area of education to oversee and initiate education activities which will advance its overall strategic plan for the enforcement of Ontarians' human rights."

Ms Cornish: One of the initiatives Ms Carter was talking about -- let's take the education system. You may well work with both the school boards and the unions in the province to try and sort out what may be the systemic barriers to the provision of education services to persons with disabilities. That would be one category in which you may say, "We've done a study which shows that the following 10 barriers affect students with disabilities in school, so we've identified that these barriers might be dealt with in the following ways." Then you would meet with those particular groups and start trying to go through it rather than leaving it to a situation where an individual student -- and there's just been a lengthy board of inquiry case settled. I think the disabled student's name was Till, who was attempting to be part of the regular stream.

That might be an example of how that student wouldn't have gone through that long process and long board of inquiry because initiatives might have already been put in place as a result of education of school boards. In fact, if I recall, the school board official who commented on the settlement said, "We've learned a lot since Ms Till filed her complaint." The process of learning is important. It's just that it's better if we can have the learning done not at the expense of both the complainants in the process and respondents.

Mr Bill Murdoch (Grey-Owen Sound): I want to say right at the start that I have no problem with a review of the Human Rights Commission. You can just talk about the backlog, or the case loads, as the politically correct term is now. It needed to be done.

But I really have some concerns about your recommendations for what would be done as a new commission. I think the government has to be accountable in even more ways than it is now. I think we have too many commissions running around this province now, and the government -- whatever government it happens to be, not only the one that's in power now but the other ones -- always used the fact that it's arm's-length to say, "We'll get back to you," and things like that.

I've sat on the Ombudsman committee for the past three years and there's no accountability there for the Ombudsman at all; that committee's been a total disaster. You talked of a committee being set up here. I can see the same thing happening and it would never get anywhere, so I really have concerns about setting up the structure you have. I think it has to get back to whatever government's in power. They have to have accountability and they have to look after these things, and it's up to the people and people like you to put the pressure on the politicians to do their job.

My office probably does twice the work the Ombudsman ever does -- I think so anyway -- because we handle those things in rural Ontario. I hear more and more that this is a Toronto problem. I'm not saying there isn't racism and problems with human rights out in the rural areas, but it's not as big a problem as it is here in Toronto and the bigger cities. It sounds to me like we have a problem here that's almost like a two-tier problem.

I'm really concerned about the accountability, that if it goes your way, it would take it away from whatever government's in power, and they'd use that to say, "We've appointed people and they're looking after that." Those people aren't elected and it's tough to get to those people.

And you talk about a commission starting to set regulations. That's really dangerous. We have a commission called the Niagara Escarpment Commission, and if it ever got around to setting the regulations we'd be in worse shape than we are now. That's a commission that shouldn't even exist, and here you are talking about a new commission being set up. If it ever started its own regulations, you'd have every commission out there -- and of course we had Sewell running around. If he ever got to be able to set his own regulations -- you know, trouble like that.

I really have a problem with what you're saying, because if I get elected I want to be responsible and accountable. That's where I have the real problem. Sure, there are problems, so we have to do something, and I appreciate the fact that you've done this. But one question that I thought you didn't answer -- Rosario asked it -- is what about the employer community out there? Are they going to like something like this? They only had one person representing them on the advisory committee, and now you've come up with this. If the government adopted this, I think you'd have a big backlash there. Obviously, I don't think you know what they really think out there if you went by what the commission and the people you had on the advisory committee told you, because they weren't represented.

Ms Cornish: Actually, we did consult. I consulted with the board of trade, the Ontario Hospital Association, a number of the employer communities concerning the issues. It was interesting. I met with, for example, the personnel association and had very good discussions with them, and we had a number of meetings with individual representatives from a variety of employers. As I said before, many in the employer community find the current process extremely frustrating.

Mr Murdoch: I understand that.

Ms Cornish: I certainly felt a majority of them would agree with a process -- I think the OHA did not; certainly the personnel association was more favourable to this -- by which they had a complaint, the complaint went forward, and they could immediately respond to it. One of the frustrations of the employer community and respondent community is that a charge is made against you and yet, just as his complainant is frustrated that they're sitting there for two years after they file it, the employer files his response and it sits there for two years too.

Many people are quite concerned about having allegations made against them and want to get them resolved. They don't feel they have an ability currently to make the system move forward quickly, whereas if you had this process, which is quite normal in any other adjudicative process -- the thing you've got to understand is that being able to file a complaint and then immediately respond to a complaint and get somebody to dismiss it or not dismiss it is the normal way most disputes are dealt with. This process of the commission is quite an unusual way to deal with it. Normally, you just go to the Small Claims Court and you say, "I've got a complaint," and the other side comes forward and you both deal with it. It's the same with the labour board and the same with a whole series. People have to look at that focus, that what we're suggesting on that level isn't unusual.

For many, and it depends to some extent on how sophisticated employers are, it isn't in their interest, necessarily, to have a functioning human rights system if they operate on the basis that, now, they know if their employee goes to file a complaint, he or she can't really do anything. That's okay, that nothing really happens. I think less sophisticated employers think that. More sophisticated employers actually want to get the thing sorted out. You'll probably find there are some differences within the employer community about how they see it.

Mr Murdoch: I'm sure there is. I just go back to the fact that I think you have to hold whatever government's in power accountable for what's going to happen. If you put in more commissions and more bureaucrats and more civil servants running around looking after it, you'll just bog down even worse.

Ms Cornish: But the risk is that you hold them accountable, and currently people feel pretty frustrated that they don't seem too accountable -- and haven't in the past. I don't say this just in relation to the current government. I've had a lot of experience over the last 18 years with all of the parties here.

Mr Murdoch: I totally agree with you.

Ms Cornish: The problem with them having too much control is the very problem we have currently, which is that we don't have any action either.

Mr Murdoch: I still believe we're a democratic country and that's why we have elections. I understand people get frustrated with the system, but if you start putting more people out there who aren't accountable and aren't elected -- and we see that in a lot of commissions; I just mentioned a couple of them -- then I think we're just going to be in worse trouble and you'll bog down even worse. But I appreciate that you're trying to solve the problem, and certainly there are some good ideas and the government of the day will have to look at them.

Mr McLean: Did you spend all that money, that $900,000 and some?

Ms Cornish: No, I don't think we did. We were cheap. Listen, I don't think there is another commission that reported on time like us. We were right in there.

The Chair: Ms Cornish, I thank you on behalf of the committee. It's been a pleasure to have you here, and the committee appreciates your time and your contribution.

The committee recessed from 1214 to 1411.

FAIR RENTAL POLICY ORGANIZATION OF ONTARIO

The Chair: I call the afternoon meeting to order, as we continue our review of the Ontario Human Rights Commission. I welcome our first deputation, Mr Philip Dewan, president and chief executive officer of the Fair Rental Policy Organization of Ontario. With Mr Dewan is Robert Herman, the chair of the Fair Rental Policy Organization and president of Robinwood Management. You have someone else with you.

Mr Robert Herman: Yes, Allan Weinbaum from W.J. Realty. He's on the board of Fair Rental as well.

The Chair: Please proceed, and then whatever time is left, we will rotate among the three caucuses for questions.

Mr Herman: Thank you for the opportunity to appear before the committee. In the effort to make my speech a little briefer than I had written it, I'll skip over a few parts.

As the largest landlord association in the province, Fair Rental represents owners and managers of rental property, ranging from individuals with a single unit or duplex to large corporations with many thousands of apartments in their portfolios. Needless to say, our diverse membership has had many dealings with the Ontario Human Rights Commission on a whole range of issues.

The organization itself has also intervened in past commission initiatives and is closely involved with a board of inquiry under the code which is scheduled to proceed this summer. I do not intend to dwell today on the specifics of the latter case, but rather to make a number of general observations about landlords' experiences with the commission.

First, I should say that almost all the concerns we hear from landlords arise in the context of constructive discrimination claims under section 11 of the Human Rights Code. With respect to claims of direct discrimination, such as an alleged refusal by a landlord to rent on the basis of an applicant's colour, race, sex etc, it would seem that our members generally do not have any difficulty in disproving those claims. Of course, where anyone is discriminating in such a way, then the members of the landlord community would have no sympathy whatsoever.

Constructive discrimination is a much different issue than direct discrimination. In a case of alleged constructive discrimination, the rules are never clear. A landlord who refuses to rent to a couple because they are Chinese or Jewish or have children is clearly guilty of an offence. But discrimination by a landlord who turns down a prospective tenant because of the applicant's terrible credit history or who financially cannot afford to comply with a handicapped tenant's request to install an elevator in a 50-year-old building is a much less clear issue.

The lack of clarity in such circumstances is a big problem for landlords, as for other providers of services. As you will hear from some of the examples I'll cite, the procedures used by the commission contribute in no small measure to this problem, but in fairness to the commission, the root cause probably lies with the legislation itself.

Based on the experience in our community, I would say that the commission and the courts do a very good job of protecting against direct discrimination. When it comes to constructive discrimination, though, the issues at hand are essentially political, not judicial. In each instance the tribunal is being asked to render judgements on wide-ranging issues of societal concern without specific direction from the Legislature -- and to do so in the context of a single case, or at most a handful of cases, whose circumstances may represent only one facet of the topic.

The result is that a broad public debate of the type that accompanies legislative change is not provided for, input is received from only a narrow segment of society participating in the inquiry and a decision is rendered based on the limited facts of the case, rather than on the full range of considerations which should apply.

This does not have to be the case and, in our view, it should not be. There have been examples in the past where the Legislature debated such issues and developed new legislative provisions; for example, with respect to protection against discrimination on the basis of sexual orientation or the prohibition of adults-only buildings. By dealing with these topics at the legislative level rather than within the Human Rights Commission, the broadest possible public discussion was fostered and an end result was produced which applies equally to our whole society.

In contrast, the quasi-judicial process of the commission results in decisions which only apply to the case or cases at hand, or to other complaints with nearly identical fact situations. This does a disservice to both the members of the affected groups and the individuals or companies who are providing the service. The former must proceed on a case-by-case basis, rather than having a universally acceptable statute on which they could rely, while the latter are left in a constant state of uncertainty, unsure whether their practices meet the same terms as the previous case.

Take as an example the issue of income criteria, which the board of inquiry will be hearing this summer. The Legislature could have decided that this is an issue which should be debated openly, allowing input from advocacy groups, tenants, landlords, financial institutions, government agencies, non-profits and a host of other parties who potentially could be affected. Full public hearings would be held, efforts would be made to reach interested groups in every region of the province, and the long-term as well as immediate consequences could be thoroughly debated.

Instead, a handful of people debated the issue in the policy branch of the Ontario Human Rights Commission and developed a position virtually in concert with an advocacy organization with whom they dealt with regularly. In September 1992, the commission released a discussion paper on the issue of income criteria in tenant selection. The ostensible purpose of the paper was to serve as the basis for a consultation with landlords, tenants and government representatives. Despite the fact that the paper claimed to present the concerns of landlords and housing suppliers in providing housing on the basis of tenants' ability to pay, no individual landlords or landlord organizations were consulted in the preparation.

The paper was forwarded to three Toronto-based landlord groups one week prior to a meeting date already chosen by the commission. Despite numerous letters from landlords around the province, no further attempt was made to canvass their views.

Needless to say, the single consultation meeting with a few selected groups could hardly be representative of the 140,000 landlords and numerous associated public and private groups throughout the province. The consultation process in this case was a sham. It was readily apparent from the attitude of the policy staff involved that their minds were already made up.

Armed with this one-sided staff report, the commission then referred three cases to a board of inquiry. An enormously expensive hearing will be held, dealing only with the specific circumstances of the case at hand. Aside from one or two groups who may be granted intervenor status, if they can afford to participate, most of the groups which would be concerned about the issue in principle will not be present, and the decision of the board will almost certainly be appealed to the courts by the losing side, meaning that there will be further years of uncertainty and millions of dollars in legal costs before a final determination is rendered.

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What happens in the meantime? Based on the position developed by the small group of policy people with no public input, human rights officers around the province are instructed to proceed as if the commission's interpretation is law. That is our biggest single concern about how the commission functions today: the propensity of officers of the commission to represent themselves as if they have law-making authority.

Dozens of landlords have been told, for instance, that it is against the Human Rights Code to refuse a tenant on the basis of inadequate income. What they have not been told is that this is not written in the law, nor have there been any board of inquiry or court decisions to this effect. It's merely the interpretation of the commission. Certainly the commission has a statutory role to interpret the code and, if they believe a case contravenes that interpretation, to refer the issue to a board of inquiry for determination, but that's a far cry from simply deciding on a position internally and announcing to the world that this is the law and you must obey.

What happens next is even more troubling. In essence, the commission resorts to blackmail to attempt to force compliance with their unsubstantiated interpretation of the law. The landlord respondent has often been told: "If you do not settle the case, we will be recommending that a board of inquiry be struck. It will cost you $10,000 to $15,000 to get representation at the board and you will lose, so why not pay the complainant $2,000 in compensation and provide an apartment as requested and agree to abide by interpretation of the code in the future and everyone will be happy?"

Everyone, that is, except citizens concerned about the proper adminstration of justice. Yet this tactic is all too successful, for the simple reason that business people are, by necessity, pragmatists. Often, they may decide they cannot afford to fight a case on principle and will take the cheapest solution. Who can blame them? But the Ontario Human Rights Commission should not be using sanctioned extortion as a means to implement a policy for which they have no explicit legislative direction or judicial interpretation.

All this results directly from the fact that the commission is being asked to do something that, in our view, it is ill-equipped to do: to set policy, rather than to enforce and educate. The development of fundamental public policy is a role for the Legislature and not a tribunal, particularly when the policies in question have major ramifications for our economic and social structures.

There are numerous other concerns that have been raised by landlords as a result of the dealings with the commission, some which arise from the same core issue of the policy-setting role with regard to constructive discrimination and others which apply even to direct discrimination complaints.

I'd like to cite an example for you before we open the floor to questions, if you go to page 12 and the heading A Narrow View of the Real World.

Both in establishing their policy interpretations and attempting to mediate settlement of complaints, commission staff seem to adopt arbitrary and sometimes quite unreasonable views of what the reality of landlords should be. Two examples may serve to illustrate the point.

At the consultation meeting just described, a policy person sympathized with the landlord concerned about the high cost of evicting a tenant if he or she defaults on the rent. However, she disagreed that landlords need to consider income when screening tenants. Her reaction was that you shouldn't have the right to prejudge a tenant's likelihood to pay the rent, that all you need to do is get the Landlord and Tenant Act changed to make it easier to evict tenants when they don't pay. I'm sure all the legislators on this committee will be glad to commit their parties to amending the Landlord and Tenant Act to make evictions easier.

A second example concerns a common area of conflict between landlords and the commission: handicapped access to existing buildings. In this case, the landlord, like most, was very sympathetic to the concerns about inadequate access for the disabled to his building, but the reality was that in an older building constructed long before current access guidelines were developed, and where the physical layout made it impossible to install the requested wheelchair access ramp from the underground garage to the elevators because of the low angle such ramps must incorporate, there was simply no room to construct a ramp without blocking the entranceway to the parking structure. Despite the landlord's good intentions, as evidenced by voluntary changes to exterior building entrances and other measures, a ramp in the garage was impractical.

The landlord cooperated with the commission, asked for advice about whom to consult on access issues and was referred to the Barrier-Free Design Centre, which examined the building and agreed the garage ramp was not feasible. Yet after three years of discussion and thousands of dollars in expenditures by the landlord and a report from the investigating officer recommending that the commission not proceed with the case, there has still been no final determination. As a matter of fact, the tenant didn't even have a car.

The commission is so reluctant to give any recognition to some of the physical and financial realities of the world in which we live that these types of issues simply carry on interminably. As landlords, we are certainly not legal experts and we are not in a position to advise on specific measures to correct all these problems. Some of them may merely need a change in internal policies at the commission, while others require going back to the legislation itself. But they all need to be addressed if landlords and the public at large are to be able to know for certain what is legal and what is not, as well as to assure all parties that they can expect balanced evaluation of complaints and timely responses.

Thank you for your consideration. My colleagues and I would be glad to try to answer any questions you may have.

Ms Harrington: You've certainly made a very good report. I thank you for your thoroughness in developing it. You have a real and a genuine concern that is very evident.

What would you recommend to this committee and to the commission in terms of how to deal with this huge problem? I note the word "consultation" in there. It seems to me one thing you are recommending is that consulting is certainly one way of dealing with the real world. You're saying that right now the commission is interpreting it as law and that's the way it is proceeding. Maybe we could back up a little: What would you have recommended to the commission a little before this point in time about how to deal with this issue?

Mr Philip Dewan: There are a couple of points we'd make. First of all, the consultation as we described certainly was inadequate, and if the commission is looking to establish a policy position and say there has been some sort of public exercise to consider points of view, then it had better do it in an adequate way, just as the Legislature faces the same sort of challenges whenever you're looking at a change in public policy. It's certainly not going to enhance anyone's view of the commission when it goes out and has a single meeting with a group and then says that's been adequate consultation and ignores the rest of the province outside of Toronto.

Ms Harrington: I gathered that's what you were recommending to the commission, but is there anything further you would recommend?

Mr Dewan: In terms of the attitudes of the rent officers doing the investigation, there should be a specific policy directive from the commission to its staff about how to approach these issues when they're going through the attempt to mediate a settlement. We don't think blackmail is really an effective way for the organization to be operating. Certainly explaining the commission's position and that there is a risk to a landlord that it may be referred to a board is quite legitimate. To state that this is the law and they have to do something, which is the way it's been described quite often, is not true, and certainly does a disservice to the commission to have it put forward that way.

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Ms Harrington: I think every one of us here agrees that this question is a very difficult one and there's no easy solution, but there has to be something done.

Mr Allan Weinbaum: I would add that there are more fundamental problems here. I think the reason that a lot of complaints officers are very aggressive in dealing with these issues is because they're overloaded and want to get these files off their desks. One way to do that is to go to each party and hardball them and say, "This is what I am recommending. Take it or else," and in that way you move things along. That happens in a lot of agencies where people are really overburdened, and this has been an ongoing issue within the commission for many years.

But there are also certain problems which cannot be dealt with effectively by the commission: The classic examples are issues which are now dealt with by wage equity and job equity legislation. If you look back in the 1980s, after the code was amended and even before the code was amended, many of the issues now dealt with by that legislation were dealt with on the basis of complaints to the commission. But the problem is that each complainant is different, and if the next complainant is in a different company, he has to start all over again. Eventually these problems were dealt with through the legislative process, and they were dealt with more effectively that way.

The same issue arises in the cases of handicap discrimination. If you talk to members of advocacy organizations for the handicapped, they're not happy using the complaints process. It can take years to deal with the complaint, and if you resolve the problem in one apartment building or one restaurant, say, you still have to start all over again with the next one. You need that broader approach.

Ms Harrington: You've got a very good point. That's how a lot of things come up, as individual problems, and then finally, when there are enough of them, that's when legislation happens.

You used the word "hardball" with regard to how things operate. We did have the chief of the commission here yesterday, and I'm sure she would emphatically deny that. They have to be a neutral body.

Mr Daniel Waters (Muskoka-Georgian Bay): I can tell you that a number of the members live relatively close to Queen's Park, and I happen to be one of those members. I live in a building about five years old. I have a father who's in a wheelchair, and he can come and visit me; he just can't go to the washroom. I have to bring him in through the garage; there is no access off the street to this building. You were talking about an old building, but what do we do about the buildings being built today that don't meet a code?

Mr Herman: That should be done by lobbying to change the building codes to accommodate handicapped people, which should be done. That's the way buildings should be designed.

Mr Waters: But the code is out there. Unless you take a measuring tape to every door, which they don't do -- the plans call for a 32-inch door, but they put in a 30-inch door and the chair won't go through. The entrance door to the unit is 32 inches, but it's the washroom door. Very nice: "Come and visit, but you have to go to another building to go to the washroom." That's an inconvenience, and that hasn't changed.

Mr Curling: I think you were talking about two codes here. Mr Waters is talking about the building code. Someone building this place would try to build it -- I don't want to use the word "cheap" -- as economically as possible and go towards the building code itself. That's another matter.

The point I want to get at is that we seem to run into this adversarial situation, which will not help us. It won't help the Human Rights Commission and it won't help landlords. I'm quite familiar, Phil will tell you, with all this confrontation between landlords and tenants, and I find it far less confrontational when you sit down and work things out. All this hype going on about landlords and tenants really wasn't there as soon as you sat down and talked.

In your report, I got that it is a confrontational situation. You may have touched on something. If they have a large case load, I'm not saying they rush through all this, but they have to be settled as quickly as possible -- it's evident in the justice system with plea bargaining, it's evident all over the place -- to get rid of this. This may be quite dangerous in setting up a confrontational situation.

I only have five minutes, so I may not even ask any questions. I may just use my five minutes to say it is a concern that must be addressed.

You have said the issue here is that they assess someone on the basis of their income to see whether they can afford to come into a rental unit. I ask the bank the same thing: Are they going to do the same at the bank? I'm concerned about people with lower income paying high interest, and they are denied any loan. They're making those judgements. That's a capital asset they want to protect. I think a landlord also has to do that -- without sounding too much like a Conservative. The fact is that many people have been discriminated against in terms of access to apartments for rent.

Mr Herman: It's really an income problem the government should maybe address through something like a shelter allowance program, so that people have the money to afford to either buy houses or to find rental accommodation. But you certainly can't tell everybody they're entitled to just rent any apartment they feel like. I think there would pretty quickly be articles in the paper about how a landlord rented something to somebody for $1,000 a month and let's say their income was only $100 or $500 a month; then we would be the bad guys for not saying to them, "You shouldn't have rented that." You're protecting the tenants from being overburdened by having to pay too much in rent as well.

I don't think it's a reasonable approach to say you should have to rent to anybody, and once they get in you'll sort out whether they can afford to pay for it.

Mr Curling: I won't touch shelter allowance.

Mr John C. Cleary (Cornwall): I take from your brief that you've been very critical of what's happening. You have start somewhere. If you had your wish, what would be the most important change that would be best for your group?

Mr Herman: We've already demonstrated that we do not discriminate under the normal grounds of the code. Income criteria are completely non-discriminatory. We think it's the fairest way. As long as they can establish that they can afford to pay for the accommodation, that is reasonable, and I think the Human Rights Commission should recognize that fact and not keep harping on this issue at all. I don't think banning income criteria as a way of accepting tenants is reasonable, and I think they should drop the issue. In time, once it's taken through the court system, I think they'll be forced to do so. That would be my recommendation.

Mr McLean: This morning we had Mary Cornish, the task force chair for the report on human rights reform. I asked her a question about this thing in the paper not long ago -- Alvin will recall; his name's in there -- with regard to people being able to check tenants' earned income. You stated in your brief that they are treating it as if it's already law. You should read today's Hansard of what Mary Cornish had to say about that, because I'm not too clear about exactly what she did say at this time.

But I am very clear that when I asked her a question about recommendation 85, my first question, she said that recommendation was wrong. It doesn't give me much faith in a report chaired by an individual who, when I picked a recommendation at random, she said it was wrong. I wonder how many other recommendations of the 90 recommendations in here are right or wrong. I just couldn't believe it. I would think that a chair of a committee would at least know what the conclusions and recommendations were. Obviously, she didn't know. I rest my case. I don't know what you're going to do.

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Mr Weinbaum: In terms of what we can accomplish today, it wouldn't be helpful to get into those specifics. Just as a general proposition, we're suggesting that a complaints-driven process does not work effectively when dealing with very complicated, more political issues that affect a large group of people. Whether dealing with income criteria or other issues dealt with under section 11 of the code, we're suggesting that as part of the overhaul of the code, which everybody agrees is necessary, different procedures really should be looked at to deal with those issues.

Mr McLean: Have you ever had any advice from the legal clinics around the city or the province? Do they give you any advice?

Mr Weinbaum: I think we understand their position, because they initiate many of the complaints. No, we haven't dealt with them directly, any landlord.

Mr McLean: Would you deal with them indirectly in court when they were representing somebody else? They're paid for by all taxpayers, I believe.

Mr Weinbaum: Sure.

Mr Murdoch: To help Al out, in saving grace for this report, he was concerned that the recommendations hadn't been -- he just picked one and they took it out right like that.

The Chair: Were you speaking about Ms Cornish's report?

Mr Murdoch: Yes. Al was concerned about it, the same as these people are. It was done on June 26, 1992, and the government hasn't acted on it. They probably won't act on it anyway, considering the speed they work at, so that report you can set aside and we'll start over again.

Ms Harrington: Is that your position?

Mr Murdoch: That was your position. I just figure the government of the day probably won't get around to doing anything; it's fairly slow.

The Chair: I thank Fair Rental for your appearance before the committee this afternoon.

CENTRE FOR EQUALITY RIGHTS IN ACCOMMODATION

The Chair: Our next deputation is the Centre for Equality Rights in Accommodation, CERA. I welcome Mr Bruce Porter, the coordinator.

Mr Bruce Porter: I'm here with Grace Permaul, who's the staff lawyer at CERA.

It may be convenient or inconvenient that we're following the submission of those who were before us, but we do not intend to get into the details of the important case that's going to a board of inquiry in June and July on income criteria as they're applied in the private market, except to say that from our standpoint it's an incredibly important issue.

People on social assistance and other groups who are supposedly protected in the Human Rights Code have been refused housing for the last decade on the basis that someone decides their income is too low, fairly arbitrarily. From our standpoint, the provisions of the Human Rights Code, particularly for the people we work with, who are primarily low-income, are going to be largely ineffectual if the board were to rule against the complainants, in this case all of whom are clients of CERA. I don't think this is the forum in which to adjudicate that matter, but we did want to go on record: Hopefully, you will appreciate the incredible importance of this issue and that it be fully heard by a board of inquiry.

Back in 1986, there were hearings before the standing committee on administration of justice into amendments to the Human Rights Code and there was an incredible number of very compelling submissions from single mothers and people on social assistance and others who were talking primarily about adults-only apartments and the fact that 16- and 17-year-olds couldn't get into apartments, because those were amendments that had been moved by Evelyn Gigantes and Ruth Grier at the time.

The committee was somewhat shocked to hear from the deputants that discrimination in housing appeared to be incredibly widespread, even on grounds of discrimination which had already been prohibited in the Human Rights Code. Receipt of public assistance had been a prohibited ground since 1981. People were reporting to the committee that it was almost universal among landlords to refuse to rent to people on social assistance, either directly saying they didn't want to rent to people on welfare or constructively saying that they felt their income was too low for them to be able to afford what were actually the most affordable apartments on the market.

The committee was shocked to find that housing discrimination had become as widespread as it was, but perhaps what was more disturbing was that when they looked at the statistics at the Human Rights Commission, it was apparently almost non-existent. Discrimination against people on social assistance constituted the most rarely cited ground of discrimination. There had never been a case that had gone to a board of inquiry on that issue and there were rarely settlements or investigations into this kind of discrimination.

One of the things that became clear, even as the committee unanimously recommended making changes to the Human Rights Code to improve protections in housing, to make adult-only apartments illegal to ensure protections for 16- and 17-year-olds, was that changing the provisions of the code wasn't going to be enough, that there had to be more effective enforcement of human rights in housing. In fact, the committee recommended the development of an advocacy organization that would provide the kind of advice and supportive assistance that particularly low-income people facing discrimination in housing required.

That was how CERA, the Centre for Equality Rights in Accommodation, was born. At first, we were only funded as a small organization starting up to do advocacy, but by 1988-89 we were able to get some funding from the Ministry of Housing to hire a staff lawyer and to start to file complaints with the Human Rights Commission.

In the past, it seemed that we filed somewhere between 75% and 90% of the formal complaints with the Human Rights Commission in the area of housing. That actually is only 5% of our overall case load, because the majority of our cases, 95%, we handle on an informal basis by calling up the landlord and talking about the provisions of the Human Rights Code and seeing whether it can be settled informally.

However, even with that, the complaints we do file in the area of housing -- we've got some charts at the end of our brief which might be useful for you to look at. Appendix A is a chart we'll be referring to on what happens to different complaints as they proceed through the system. Appendix E shows the number of complaints we've filed in each year and whether they have been investigated; you can see that in 1989 we filed 29 complaints with the commission, but by 1990 we were filing over 60, and that's been generally constant from then on.

We're actually the largest user group of the Human Rights Commission. Because we're relatively young, we don't have some of the really old complaints that an organization like the Advocacy Resource Centre for the Handicapped would have, but we have a fairly wide range, so we thought it would be useful for you to look at some of the data we've been able to get together on the kinds of delays experienced at different stages and the outcome and so on.

CERA has attempted to develop what we call a community-based model of human rights enforcement, and that's really what we're here to plug today, as a different way of approaching the enforcement of human rights which we think is more efficient, could save the government a lot of money and which could also mean much better human rights enforcement in Ontario.

We want to make human rights accessible. We want to make them accountable to the rights claimants. We want to make human rights claims empowering for those who are usually silenced and marginalized. We want to make them effective so that they would provide a timely and appropriate remedy and prevent further discrimination from occurring. Perhaps most important, we want the system to be efficient so that we get the maximum from the available resources.

What we are going to suggest today is that the existing system of human rights enforcement is the opposite of all of these, that it makes human rights inaccessible, unaccountable, disempowering, ineffective and inefficient.

We're not here, however, primarily to criticize the staff or the operation of the Human Rights Commission. As the largest user group of the commission, clearly we have our frustrations, both with the organization and with some of its staff. Commission officers frequently treat CERA's advocacy on behalf of rights claimants as an unwarranted intrusion into their terrain. They're often very biased against claimants. Two years ago, they decided to refuse to accept complaints drafted by CERA and other outside organizations, and we had to go to court to get an order to force the commission even to accept complaints prepared by CERA, when in fact we thought we were doing them a favour by doing something they didn't seem to have time to do.

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The main preoccupation at the commission these days seems to be what at least one manager has referred to as killing files: getting rid of complaints by any means possible to reduce the backlog. We've included in the appendix some individual voices, to show some of the human dimension to this problem.

But we believe the problems are endemic to the structure and that the structure must be changed. We do not think a tune-up of the commission's engine or new upholstery or even a reorganization from the inside out, as has been proposed by the chief commissioner, is going to do the trick. We need to consider another mode of transportation.

Our primary message today is one which I think you've already heard clearly from a number of sources. It's been heard from the Ombudsman of Ontario on a number of occasions by the Legislature. It was heard from the Cornish task force and from most equality-seeking constituencies during the Cornish task force's consultations last year. The message is: Overhaul the system of human rights enforcement in Ontario, not just the commission.

The Human Rights Commission, in our view, has been set up for failure. It's been given far too many roles to play at the same time. We cannot expect a government bureaucracy to provide good advice to rights claimants and respondents at the same time, initiate and prepare all human rights complaints in the province, investigate these complaints, mediate and settle them, determine whether they warrant a hearing, litigate them before boards and in courts, and control public education and action on all issues of systemic discrimination in the province.

What we are proposing, in line with the Cornish recommendations, is that the commission be focused on what it can do well, while community-based advocacy services like CERA and equality-seeking constituencies be empowered to provide the services we are better at providing. The present system is really based on an outmoded notion of rights and of rights claimants. It's essentially a paternalistic system which appropriates control of the process from the claimant and invests significant powers in a bureaucracy. In no other area of the justice system is there so little control by the person whose rights are infringed.

Imagine, for example, if the landlords who just appeared before you wanted to evict a tenant who had made too much noise and they had to submit a complaint to some kind of government commission and wait for four years to find out if the commission deemed the case worthy of proceeding to court. The legislators would never consider such a system, yet that is precisely what a woman who is being sexually harassed by a landlord must do. She is precluded by law from taking her human rights claim to court or to a tribunal on her own. She must simply submit her complaint to the commission and await their investigation and their decision about the merits of the complaint. She has no avenue of appeal if the commission decides against her.

We suggest that Ontario has moved beyond the time when it was considered appropriate for equality seekers to hand over control of their rights claims to a government bureaucracy and wait years to see if they will be deemed worthy of receiving a hearing. Equality-seeking groups are quite capable of identifying important systemic barriers and taking their own equality issues forward, if only they are provided with the resources needed at the community level.

Equality seekers need access to prompt and fair hearings. They need resources to take their own cases forward and advocacy services whose role is clearly supportive. It is simply not appropriate for a bureaucracy which has the authority to extinguish someone's rights by dismissing a complaint to be put in charge of preparing that person's originating document and compiling the evidence in its favour.

The confusion of roles at the commission often amounts to a blatant conflict of interest. Where officers do not agree with a complaint they will sometimes prepare it so as to make dismissal easy. Pressure to settle a complaint is often disguised as helpful legal advice about what remedy is appropriate.

Our human rights enforcement system, which is supposed to promote equality for disadvantaged groups, actually perpetuates inequality in its very structure. We've relegated equality-seeking groups to a second-class system of justice. New management plans or restructuring will not change the fundamental injustice of a paternalistic system which denies equality seekers control over their own rights claims and, more often than not, denies them a fair and open hearing.

Because CERA only began filing formal complaints in 1988-89, we don't have data on ancient complaints, but we have the largest database. In appendix A, you'll find a diagram of the various stages that complaints have to go through and our calculation of the average amount of time different stages take. We should point out that the average times are going to be underestimated in this calculation because we can't include in the averages the cases that haven't even got to that stage; if there's something that hasn't been investigated, we can't include that information.

You should also note that if there are any discrepancies between this information and information you received from the commission, in many cases the commission is including what are called "early settlement initiatives" in its documentation of complaints received. We don't do that in our files. Early settlement initiatives are cases where someone informally contacts the landlord or the respondent and tries to settle it informally. It means a complaint hasn't really been filed with the commission which would mandate the commission to go through a number of steps. This information is on formal complaints which we have filed with the commission.

Ms Permaul is going to take us through some of the stages and look at the causes of the delay at the various stages.

Ms Grace Permaul: With respect to the structure of the commission, it becomes apparent that there is a dysfunction or malfunctioning at the particular stages, and we can start with the stage of investigation.

Investigation has been completed in fewer than one quarter of the formal complaints filed through our office with the commission. Of those in which the investigation has been completed, the average time for the investigation has been 28 months. If you turn to appendix A you will see the amount of time that passes at each stage. Clearly, that is an intolerable length of time if you are in need of housing or living with sexual or racial harassment. The very nature of the harassment suffered and also the absence of a possible remedy exacerbate the importance of a timely resolution.

What is particularly frustrating about delays in investigation is that in most cases the investigation by the commission accomplishes nothing. Often it simply creates more work for CERA and eventually for the commission staff.

The normal pattern of an investigation is that the file simply lies dormant for a long time. When a new officer is assigned to the case there will be a flurry of activity, there will be exchanges of correspondence, but the focus will usually be on settlement rather on the investigation itself. In our cases, with every new officer there is a new attempt to put pressure on the complainant into settling and then there's even more correspondence. By the time an investigation does actually occur on a file, housing complainants may have moved away or in many cases it's very difficult for us to track them down to get instructions.

Part of the problem that also continues to exist is that of the relationship with officers. Often there is hostility and resentment of the fact that we are intervening in the process. Not only that, but there's also a prevailing bias. What happens is that as an investigation is conducted, there is more of an attitude that the purpose of the investigation is to assemble a case for the respondent, so the element of neutrality is lost and there is a very obvious element of bias.

After years of waiting, we are finally confronted with a case summary which gives some legitimacy to the respondent's position and which often misunderstands the nature of the allegations in the complaint. This is a direct result once again that if the individual doing the investigation is preparing the case summary and that person does have a bias, that bias is evident in the case summary. Most allegations of constructive discrimination, for example, are investigated as if they were cases of direct discrimination.

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All of this simply creates more work for CERA. Confronted with a deadline of less than three weeks to respond to a case summary, we must then assemble our own evidence in response to the investigator's report. The case summary, however, lists findings but does not identify witnesses. We are unable to determine whether key witnesses were ever interviewed, so we must then duplicate what really becomes a second investigation.

In the majority of cases, the statutory requirement that the commission investigate a complaint simply creates extra work and more delay. Eventually, the claimant and the advocate must do most of the work compiling the evidence in favour of the complainant once again. Yet a delay of years has been created by requiring someone who is not likely to be sympathetic to the complainant and who often does not fully understand it to prepare a report for the commissioners. This person is not sympathetic to the complainant and has a bias towards the respondent, and they prepare the case summary which eventually is what is relied upon by the commissioners in deciding whether to continue with this case.

The Cornish task force proposals would eliminate this waste of resources by allowing claimants to proceed directly to a hearing in cases where they already have their evidence. Requirements for disclosure would ensure that claimants would promptly receive necessary information from respondents which we must now wait years for. Only in certain cases where special investigative powers are required would an investigating officer be assigned to the case.

As we move on, you'll once again see in appendix A that with regard to the commission decision regarding board appointments there is usually another wait or period of 11 months. The commission decision regarding whether to recommend the appointment of a board is the important element in the life of a complaint. If the commission decides not to appoint a board, the complainant's rights are extinguished. CERA must prepare thorough submissions for the commissioners simply to ensure that we get a chance to argue the case at a hearing. At that point, once again we're forced to respond. There's a duplication of time and effort, and there is the necessity for CERA to undertake the preparation of additional submissions.

While we are generally successful in convincing the commissioners to recommend the appointment of a board, it is extremely time-consuming to prepare for this silent hearing. We are given a deadline of 15 days from the mailing of the case summary to prepare our submissions. As you can see, there is a very short time span, a great deal of work and also a great responsibility to ensure that the best case is put forward for the complainant.

The Cornish task force recommendations would eliminate this step by allowing direct access to a hearing. The commission itself has acknowledged that it should no longer play the gatekeeper to determine what cases go to hearings. It is much more expeditious to simply hold a hearing than to expend so many resources in preparing the commission to decide whether a hearing is appropriate.

From that stage we go on, and then once again there's another delay from the commission decision to the time of a hearing. Once the commission decides to recommend a board of inquiry, there is on average a further delay of 12 months before the actual hearing begins.

While all of the other delays in the process are obviously unreasonable and were certainly not intended by the Legislature when it passed the Human Rights Code, this delay is, in our view, clearly contrary to the explicit provisions of the statute. Subsection 39(1) establishes that the board of inquiry shall commence a hearing within 30 days after the date on which the members were appointed. If you turn to the chart in appendix C, you will see that it is on average 8.5 months between the date of the appointment and the first day of the hearings.

The commission and the board of inquiry office have attempted to circumvent this provision by arranging a conference call among the board and the parties within 30 days of the appointment of the board. The actual hearings dates are then set, often for more than a year later. In our view, this attempt to circumvent the intent of the Legislature would not withstand a court challenge.

I think you're starting to see how the time factor and lag compounds from the time a complaint is filed to when there actually is any type of hearing.

The reason for the delay between the appointment of the board and the actual hearings is the unavailability of commission counsel. Even in cases where CERA staff is doing the bulk of the preparation, we must wait for commission counsel to be available.

Once again, the Cornish task force recommendations would eliminate this requirement that the commission have carriage of all complaints before boards of inquiry, thus saving significant waste of resources and eliminating further unnecessary delay. The commission should have the option of appearing at any board of inquiry but should not have carriage of every human rights complaint.

Settlement prior to completed investigation usually takes about 24 months, and often there is no clear distinction in the current system between the commission's investigative role and the mediating role. Officers do attempt to do both at the same time, and the result is usually that none is done very well or very quickly.

There would seem to be no reason to wait for two years to have a complaint settled prior to investigation. Unfortunately, with the present delays, respondents are well served to simply wait until the complainant is either worn down by the delays or is no longer in need of the accommodation which they were denied. Often, by the time an officer gets around to mediating, it is no longer possible for the complainant to receive a meaningful settlement. People must find another apartment before two years expire. Also problematic is the rate of turnover of apartment buildings. Frequently, an apartment building is sold and the respondent is no longer able to provide a remedy. The Cornish task force recommendations would separate mediation from investigation and have it available as an immediate resolution, thus avoiding unnecessary delay and confusion.

Settlements after investigation take on average 39 months. A respondent who knows how to manage the system will rarely settle until an investigation is complete. Settlement discussion will often become serious only when it appears likely that the commission will recommend a hearing or when a hearing has already been set. By this time, the complainant will be unlikely to get an effective remedy. An as-of-right hearing, as proposed by Cornish, would provide an immediate incentive to settlement and thus eliminate this unnecessary delay.

Board hearings: At the present time, we do not yet have enough completed hearings to provide meaningful data on the length of the hearings, but it is clear to us that there are also unnecessary delays at this stage. Boards do not have enough control over hearings, and either unrepresented respondents or well-financed counsel can drag a hearing on intolerably. Often hearings are delayed because of improper disclosure or inadequate investigation. After years of delay, it is difficult to preserve evidence and to track down crucial witnesses. Preparation takes far longer than it would have if the case had proceeded directly to a hearing, and this could have happened years earlier.

The Cornish recommendations would provide for an initial hearing to ensure that disclosure has taken place and to determine what witnesses will be called and how long the hearing will take. The tribunal would be structured so as to discourage lengthy legal disputes and would be accessible to non-lawyers.

You've heard that there has been a great deal, and the commission admits that there has been a great deal, of pressure to deal with the backlog. As a result of that pressure, there have been negative effects. We've listed what some of those negative effects are at the different stages.

In trying to reduce the backlog, the commission has been forced to streamline the process and in so doing actively pursue the permanent closure of files. This has required that the commission earmark additional expenditures of funds, time and human resources. Often, the commission's mandate to promote public policy and to enforce the right to be free from discrimination has been sidelined. There has been little opportunity to consider the ramifications and the possible harm that result from this focus on eliminating complaints.

As you look at this list, you can see the different stages. Once complaints are filed, complainants are discouraged from filing formal complaints even if such a complaint would be warranted. Complaints of an innovative or more complex nature or which do not involve direct discrimination are discouraged. Claimants are often encouraged to accept minimal settlements which are the result of an early settlement initiative even though the settlement does not adequately compensate the claimant for the harm suffered. Claimants are encouraged to forgo public interest remedies, which may deter respondents from settling before a complaint is filed. In such cases, things like having a change in the policy, things like monitoring a policy, all of the public policy considerations and public education considerations are lost, simply to ensure that a complaint is settled in a quick and efficient manner -- well, not efficient, but very quickly.

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At the investigative stage, years may pass before the complaint becomes active, yet the commission imposes a 10-day deadline for a complainant to be located and to respond before the complaint is declared abandoned or closed. Often complainants in housing are homeless or without telephones for periods of time and are rarely at the address provided when they filed the complaint.

Less time is put into investigation. Witnesses not available at a particular time may not be interviewed. Once again, there is bias in favour of killing files. This often means there's bias against the complainant. A greater burden of proof is placed on the complainant to establish that they do in fact have a valid complaint.

Inflexible cutoff points mean that where there's further evidence, that evidence is often not considered. More complex issues of constructive and systemic discrimination tend to be ignored in order to save time. There's not enough time set aside to properly train officers to undertake investigations in specific areas such as housing. There's a bias against weaker complaints and an assumption that only a perfect tenant could have a sustainable human rights complaint. Advocates for complainants are resented because they are seen to be intruding into the process and causing delays.

Then you get to the stage where there are possible settlements. As you can see from some of the items we've listed, the settlements are not often reflective of what is necessary in the eyes of the complainant to adequately remedy the harm that has been suffered. Low-income complainants such as social assistance recipients are unlikely to get any monetary award at all. The commission is often willing to forfeit the larger societal benefits in settlement negotiations in an attempt to get the respondent to sign on the dotted line.

There seems to be a quick-fix approach, where remedies usually fail to serve as a deterrent for future infractions of the code and, once again, public education and awareness issues are ignored. Officers will frequently intervene in the negotiation process and advocate, actually advocate, for minimal settlement offers on behalf of respondents. Claimants are told that if they do not accept settlement offers preferred by the investigating officer, the officer will recommend to the commission that the complaint not be referred to a board.

There's also pressure on staff to close files indirectly, and as a result, this encourages them to violate the complainant's right to representation.

The Chair: Excuse me, Ms Permaul, are you going to be very much longer?

Ms Permaul: No. In fact, I'm finished.

The Chair: You have used your 30 minutes, but if you've only got a few more sentences or a paragraph, please complete it.

Mr Porter: I was going to do the wrapup, so maybe I can take it from there.

Essentially, our main point is that we're stuck in a kind of catch-22 where, if the commission is encouraged to eliminate the backlog, we find fairly unacceptable abuses of power. If they don't eliminate the backlog, we have all these incredible delays which really mean you don't get any kind of effective remedy. We don't think the solution is to tinker with the system but to really make a wholesale change. We think the Cornish task force was the best kind of review of human rights enforcement that's been done in any jurisdiction for a long time. It was done in a short time frame, and I know there were a few mistakes in the final production of the document, but I don't think that should be held against the very important recommendations that are a part of it.

The cost of failing to act is immense. Just in the area of housing alone, the amount of money this government is losing because people on social assistance, for example, are denied access, according to a recent study, to 90% of affordable apartment units in Metro -- you can imagine that means they end up having to pay substantially more for less adequate accommodation, and that comes out of the shelter allowance within social assistance. To be worried about spending a few extra dollars on enforcement of human rights and to then suffer the consequences of these much greater costs is simply irrational.

Also, we don't think it is going to cost more. The proposal that Mary Cornish and the task force made is to eliminate inefficiencies. The government could actually move in the direction of devolving some of the current responsibilities of the commission to community-based organizations, and we could do it cheaper and more effectively. Let the different organizations do what they can do well and we think we would actually have a much more efficient and cost-effective system. Thanks very much.

The Chair: We're out of time for this deputation. I'm looking for direction from the committee. Our next deputation, from the Canadian Council of United Steelworkers of America, is not here. Does the committee wish to take five minutes each to ask questions? The deputation's been 35 minutes at this point.

Mr McLean: I would suggest, Madam Chair, that one question each would probably be appropriate. I would like to know the background of this group.

Mr Sean G. Conway (Renfrew North): This is a very interesting, well-researched paper. We don't have anybody else for the rest of the day, by the look of it, so I don't think we've got great time pressure, and this group has done some very interesting work. They certainly have stimulated me to some questions.

The Chair: How much time per caucus would you like, and I'll conduct the meeting accordingly. Five minutes per caucus? All right.

Mr McLean: I'd like to know the background of your organization. In 1989 you had one or two people on staff; you got some money from the Ministry of Housing to operate. What's your budget and how many people are on staff and what jurisdiction do you work under?

Mr Porter: We cover all of Ontario with a 1-800 line. We have six staff, including two lawyers, and our overall budget is about $340,000 a year, which we're not always able to meet. We're always struggling to get our funding, but that's what we need for the current staff complement.

Mr McLean: Who approves that budget?

Mr Porter: It comes from various sources, but our main funder at this point is the Ministry of Housing through the community partners program.

Mr McLean: You dwelled a fair bit on "a complainant to receive a meaningful settlement." What is the meaningful settlement you're referring to? Money seems to be what the complainant would be after. Is it if they can't get an apartment, or what's the background of that meaningful settlement?

Mr Porter: Part of the problem with housing complaints when there's such a lengthy delay is that usually by the time three or four years has elapsed, it's not very meaningful to be offered an apartment in a place where you're no longer living.

But in general in human rights cases, there's a notion that a settlement or an award at a board should put the person back to where they would have been if it weren't for the fact that they were discriminated against, so if costs have been accrued in living in a place that's more expensive and having to pay more for transportation to work and so on, subject to the complainant having made sure they did everything they could to reduce those costs, those would be claimable against the respondent. There is also generally an award for what is called general damages, for the loss of freedom from discrimination and for mental anguish and so on.

Unfortunately, our experience is that in housing cases, especially with low-income people, mental anguish and general damages and even specific damages tend to be ignored, so often it's just an apology. In fact, rarely in settlements negotiated by the Human Rights Commission is any monetary award exchanged, so essentially people go through the long process and get very little at the end of it.

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Mr McLean: You indicate in the brief that the Human Rights Commission did not want to take any more of your cases. Were they directed to take some, and what percentage of their total case load would be cases from your organization?

Mr Porter: There was a move that happened two and a half years ago, when they decided they wouldn't take any complaints from outside organizations, that we, being the largest such organization, challenged it in court and won. The court ordered them to accept complaints from outside organizations. I don't think the commission would stand behind that action now. They are trying to be much more cooperative and collaborative on these things.

The second question is a bit difficult for us to answer. The commission has in past reports blended what they call early settlement initiatives and formal complaints, so we've had to estimate the number of formal complaints it had in housing. In the past, we've estimated that CERA is filing up to 90% of the formal complaints in the area of housing, but when we've checked it more recently there's some confusion about whether that's been the case this year. It may be lower this year or we may not be getting the right data from the commission. We have to check on that.

Mr McLean: You have two lawyers on staff. Why wouldn't 90 days be an appropriate time for you to be able to solve a lot of these disputes?

Mr Porter: That's the kind of system we're actually advocating, that we would be able, on our own, to investigate and prepare for hearings in most of our cases within a relatively short time if we had the resources available. We're swamped with work at the moment, but we've never created any delays ourselves. We always go to hearings as soon as the commission is ready. The delays at the moment are that we have to wait for commission counsel to be free, often to play a fairly minor role in the hearing really, because CERA counsel will actually do most of the preparation.

Mr McLean: It appears to me that you're doing a lot of the work for the commission.

Mr Porter: And we're doing it pretty cost-efficiently as well.

Mr Murdoch: You're organized basically out of Toronto. What is your case load here compared to the rest of Ontario?

Mr Porter: Last year it was just over half in Metro Toronto. Prior to that we managed to have the majority of cases from outside of Toronto. We're looking at the possibility of seeing whether we could provide more effective regional service, but still a major chunk of our cases are Toronto.

Ms Harrington: I'm very glad you explained to Mr McLean what an effective organization you are. I'd like to commend you. You mentioned also that in 95% of the cases you deal directly with the landlord and have them resolved. Is that what you said at the outset?

Mr Porter: Only 5% of our cases would result in a formal complaint to the commission.

Ms Harrington: Very good. I want to address what you said with regard to bias as opposed to neutrality of the commission. You said the bias was to the respondent; we've heard earlier that the bias was the other way. But we did hear yesterday from Ms Brown from the commission that the whole point of the organization is to be neutral. That responsibility rests on her shoulders and she very clearly is taking that responsibility, from what she said to us.

I am concerned also about the statement you made about killing files. Obviously, that is not the way this organization should be working. You said the problems are endemic to the structure and you are therefore recommending the recommendations of the Cornish report.

Yesterday we received the speech from the chief of the commission, and it is available to you today, about what she has been doing over the last while. In it she made eight strategies for change. I'm wondering if you are aware of those and if you believe those changes she is making are helping.

Mr Porter: We're aware of them, although we don't understand all the details and the meaning of some of the words, but we have to say that a lot of it sounds good. We have a lot of respect for Ms Brown and we've had respect for previous chief commissioners, and we've had a lot of support for our work from the commissioner's office. There are a lot of good things people are trying to have happen at the commission, and certainly we applaud what Ms Brown is attempting to do.

Our feeling, though, is that while there are going to be ebbs and flows in terms of the commission working better or worse at different times, our main experience is not with the chief commissioner's office but with officers who are the same this year as they were last year. They're getting different kinds of instructions, and what we were attempting to suggest in our presentation is that, whatever instructions they're getting, there are problems with the structure itself. If they're getting instructions to try to move things along faster, then they tend to become a bit hostile to the complainant, because if we're suggesting that a larger settlement is appropriate, from their standpoint we're preventing this thing from settling. That's when the bias tends to shift towards the respondent.

Ms Harrington: I'm hoping the commission will be very aware of some of the things you are saying and address those.

Mr Porter: We have met with Ms Brown and have conveyed our concerns to her. We would hope this government would look seriously at the kinds of structural changes that were proposed by the Cornish task force and not place its hopes in new management strategies.

Ms Harrington: That's what this committee has been charged to look at, I believe.

Ms Permaul: I certainly applaud the good intentions of the commission, but some of the proposals -- such as better quality assurance, focus on customer service, new branches, a public policy branch -- tend to seem only to window-dress and try to react to the criticisms that have come about with respect to the commission. They don't actually deal with the day-to-day realities, with how complaints are filed and how they're handled.

Through our office we handle initial complaints at every stage, so we see the reaction of each person: the intake officer, the human rights officer who's assigned to the file, the person who is assigned to investigate the file, and ultimately the lawyer who's going to represent the commission.

Having seen all of that, it's possible to say it's the structure which is at fault, right at the root of the problem. One instance of that, being bias, is that if you are in a situation where you're being told you should try to settle a complaint, that that is one of your objectives, and you've got a respondent and a complainant who have a different focus or a different objective, and where part of what a complainant is seeking -- and there was mention earlier of, what is an appropriate remedy? -- is not just monetary damages but a systemic change in terms of change of policy, in terms of ensuring that the Human Rights Code cards are posted, in terms of getting a letter of apology and some assurance that this is not going to happen to someone else, there's a great reluctance for the commission to support that because that prolongs the process.

There are very few landlords who are willing to admit any liability. In fact, the way the system works now, they do not have to admit liability. The pro forma letters of apology simply deal with the fact that the incident may have happened and it may have been a misunderstanding.

But where dignity has been violated, the complainant is dealing not only with resolving their own complaint but trying to seek change for the future. I think that's something we should be concerned with, because if we're able to change the system, that means there will be fewer complaints in the future and that means a reduction in cost and expenditure.

Mr Conway: I want to thank the submitters for a very well-documented and I think quite provocative and useful set of proposals -- provocative, Ms Permaul, in the light of your last exchange with Ms Harrington. My sense of the world -- I have spent a long time in search of unbiased, neutral, antiseptic Solomons and, gee whiz, the longer I search, the more frustrated I become. I'm really keen to find these unbiased -- I've never met an unbiased person in my life. In the human rights business, I've met some of the most actively engaged people, on all sides, that I've ever met anywhere.

Over the lunch-hour I called a friend of mine who actually does some practising in this business. She's a young lawyer who is quite a progressive individual. I won't even regale you with her stories about the world that none of us sees, which is at those boards of inquiries or in subsequent appeal processes. I can't and don't want to believe what she tells me. Granted, it's just anecdotal, but the little list of horror stories I got over the noonhour just makes me despair entirely.

I think you make a very clear case that there is all kinds of injustice out there, and I don't dispute that at all. I was in fact reminded, and just saying to my colleague Curling, that in the Toronto press this week were the stories of West Lodge.

The Chair: You mean Mr Curling?

Mr Conway: Mr Curling, absolutely. Did I say "my colleague Curling"? My colleague Mr Curling; I apologize.

I remember reading that story in the papers about the various complaints around West Lodge. I suspect there was a lot more there than I read, and it seemed that there was just a good fight on all sides. We had tenants who seemed to have a very legitimate grievance. We had landlords who I thought certainly had some explaining to do. We had city officials who had another story to tell. I'm trying to imagine a set of processes where we're going to get some justice. I must say I'm not at all confident that your remedy to the problems you eloquently identify is in fact going to be the remedy that you hope and pray it will be.

Ms Permaul: First of all, I think you're right that bias exists everywhere and certainly everyone brings his own opinions, as do judges have biases. The emphasis is on the role we are asked to play, and certainly the role that has been assigned to the commission is to be a neutral arbitrator. You're quite right. You're making exactly the point we're making: It's almost an impossible standard to hold, at the level and at the points in the complaints process, that we're asking the commission to be a neutral arbitrator. So why then not adopt the Cornish task force recommendations whereby all parties would have the right to advocate on their own behalf at a hearing?

Mr Conway: Maybe that's the direction we have to go since everybody's telling us that what we've got isn't working very well, and there's no doubt that what we've got was developed in a pre-charter age and all of that. But as I listen to you highlight a number of your experiences and your complaints, the more we move to the kind of model you imagine, I just would expect everybody out there to simply work to rule and things will become so litigious that it is simply going to grind down.

I remember in the world of education, where we set up a number of informal practices that were well intentioned. They were quickly overtaken by the legal community for all kinds of good reasons, often because we had proponents who just could not or would not accept a verdict. What was supposed to be a user-friendly, relatively low-cost, timely adjudication of complaints around things like special education just became hopelessly expensive and never-ending processes that have now become a complete farce relative to what was expected for them in the beginning.

As I hear you outline an alternative process for which we would all I think have a great deal of hope, I just can't imagine in this world of the 1990s why that won't simply become a grand work-to-rule that has everybody lying down, having to be dragged through every conceivable legal and quasi-legal hoop you could imagine. If what we've got now is bad, this medicine may turn out to be as bad or worse.

The Chair: Unless you would like to make a brief response, we have used up a lot of time on this deputation, and we did agree to five minutes per caucus. No? Thank you, Mr Porter and Ms Permaul, for your appearance before the committee this afternoon.

Our next deputation apparently is not able to be here. They were scheduled to be here at 3 o'clock and it's now almost 25 to 4. I will take direction from the committee whether you wish to adjourn the committee.

Mr McLean: Adjourn.

The Chair: I remind you that we start at 10 o'clock tomorrow morning.

The committee adjourned at 1535.