ONTARIO HUMAN RIGHTS COMMISSION
CANADIAN MANUFACTURERS' ASSOCIATION
CONTENTS
Monday 7 February 1994
Ontario Human Rights Commission
Wei Fu
Lou Ronson; Karen Mock
Russell Juriansz
Canadian Manufacturers' Association
Ian Howcroft, employer relations policy adviser, Ontario division
Malcolm MacKillop
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:
Cooper, Mike (Kitchener-Wilmot ND) for Mr Mammoliti
Lessard, Wayne (Windsor-Walkerville ND) for Ms Harrington
Clerk / Greffière: Mellor, Lynn
Staff / Personnel: Pond, David, research officer, Legislative Research Service
The committee met at 1401 in the Trent Room, Macdonald Block, Toronto.
ONTARIO HUMAN RIGHTS COMMISSION
The Chair (Mrs Margaret Marland): I call this meeting to order, as we continue the review of the operations of the Ontario Human Rights Commission. We have five deputations this afternoon.
WEI FU
The Chair: We will start with Mr Fu, who is a journalist with the Chinese World Journal. We welcome you to the committee, Mr Fu, and the next half-hour is yours and you can use it however you wish. Make your presentation, and if you would like to leave time for the committee members to ask you questions they would appreciate that, I know.
Mr Wei Fu: Before I read my presentation I'd like to tell you I appreciate this opportunity. Inviting a community person, a former complainant of the Ontario Human Rights Commission, to make a presentation shows that the standing committee is really making an effort to improve the protection of human rights in this province.
I'd also like to tell you that when you are making an effort to do this you win the support of the entire minority community. Many, many people appreciate, but today is a working day so people cannot show up.
I'll start by reading a short presentation.
Preface: Ontario, the dreamland of people from all parts of the world, respects the rights of everyone. The first nine sections of the Ontario Human Rights Code are a solemn declaration of Ontario's sacred intent, but this intent has been undermined by the agency which is set up to uphold human rights, namely, the Ontario Human Rights Commission. In the minority community it is said that the OHRC gives victims of racism only false anticipations. It is also said that this agency is wasteful multimillion-dollar window dressing. A radical statement says that the OHRC is a grand conspiracy, it whitewashes racism, and in the meantime portrays the image of upholding rights. One may repudiate these versions as frustrated persons' misperceptions. One may also argue that if so many people are frustrated with the OHRC, the need of a review is obvious.
The OHRC format of protecting rights:
(1) The complaint: When a victim of racism files a complaint to the OHRC, he or she will firstly meet a receiving officer who often does not have a sympathetic attitude. He or she may face hostile questions and sometimes be told that it is a waste of time. After this rather intensified interview, the receiving officer will draft a complaint statement for the complainant or help him or her to write one. The statement will then be sent to the respondent.
The OHRC claims to be a neutral authority. The complainant and the respondent have the same legal rights. In the case that the complainant is an employee of a large corporation or powerful institution, this first step has already put him or her in a disadvantaged position.
Few people in a high position would admit that racism is a problem in their workplace. It would be naïve to expect that after receiving a notice from the OHRC, the employer would neither destroy documents nor manipulate witnesses. Promotion, assignment, overtime payment etc are the handy means to reward those who do not rock the boat. There are hundreds of ways to punish those who have crossed the line. The sad fact is that manipulation often works.
(2) Investigation: While the employer is well prepared, a human rights officer will begin the investigation. It is often conducted by phone; sometimes by interview. It is reported that the questions an investigator poses to the witnesses are decided by the supervisors.
Subsection 32(2) of the code gives the OHRC the power to initiate a complaint and to investigate. Section 33 gives the human rights officer the power of entry, search and seizure with warrant. These legitimate measures are rarely used.
Some former employees of the OHRC allege that the management blames the officers' lack of skill and knowledge for unsatisfactory investigations, while the officers complain their hands are tied and their findings are sometimes altered by superiors. Both the management and the staff members contend that the law is so weak that the OHRC lacks the power to do its job.
The question then remains why they are reluctant to use the legislated power which is already in the book. Furthermore, the code does not state the OHRC cannot use undercover methods to carry out an investigation. Moreover, the code does not set the aforementioned format of investigation for the OHRC either. The truth, perhaps, is that the OHRC as a whole lacks the willingness to enforce the code.
(3) Conciliation: At this stage, the complainant and the respondent are brought together to settle the differences. The complainant, who is always the underdog, usually attends the meeting with a friend and a community worker or perhaps a community lawyer. The respondent is most likely flanked by high-profile legal counsel and assistants. An employee has to gather the courage to confront his or her boss in a settlement meeting. The underdog, who is already under severe pressure, may then be told by the mediating officer that refusal to settle can be used as grounds for dismissal. The reached settlement may be some empty statements and a letter of apology. In some extreme cases, there might be a few thousand dollars' compensation.
(4) The board of inquiry or dismissal: Failing to reach a settlement, a complaint may either go to the board of inquiry or be dismissed. For years, only about 2% of the complaints were inquired into by a board. Now the OHRC claims that the rate has been increased. However, sound cases are still dismissed by the OHRC or by the board of inquiry.
There have been instances where the chairman of the board is insensitive to the pain of a minority worker but very understanding of the difficulties of the employer. For example, the board of inquiry may abandon the principle of balance and look for overwhelming evidence without doubt. The OHRC, confined by its own format of investigation, cannot locate this kind of hard evidence.
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After a long, frustrating journey, an extremely small percentage of complainants may be fortunate enough to win a decision in a board of inquiry. For the respondent, it is not more than a slap on the wrist: an apology, a few dollars, or perhaps a job for the complainant. However, the respondent can prolong the legal battle by going to Divisional Court, the Court of Appeal, or even the Supreme Court of Canada.
Overall shortcomings of the OHRC:
(1) Insensitivity towards the victims: The entire process -- complaint, investigation, conciliation, board of inquiry -- lacks sensitivity to the pain of victims. There are reports of human rights officers and chairpersons of the board acting rudely to complainants. Going through the process, many victims are further victimized.
(2) The human rights officers' lack of independence: While crown attorneys enjoy independence in investigation and prosecution, human rights officers do not have the same privilege.
A recent decision of the grievance settlement board of Ontario crown employees found the OHRC and the Ministry of Citizenship unfair in hiring. Merit is not the only factor that decides the success or failure of an applicant. Many human rights officers begin their career as contract employees. It is alleged that they are promoted when their behaviour pattern is found to be consistent with the existing subculture. One of their former chief commissioners has mentioned interference from the minister.
(3) The process creates different interpretations even within the commission. Different human rights officers handle a complaint when it goes through different stages. Each officer's version may not be the same. The different versions of the same case pass on to superiors in the decision-making process, thereby creating further confusion.
(4) Inability to find hard evidence: Discrimination and harassment are difficult to be proven in court. Retaliation is even more difficult to prove. The OHRC sets up a pattern for investigations. This pattern serves only to confine itself and reduce its ability to do its intended job.
(5) The system does not pose as a deterrent to racists. Racists know that when they violate the Ontario Human Rights Code they are most likely home free and can escape without any consequences. Even if they are caught, no punishment of a severe nature will occur.
(6) The OHRC further victimizes victims. While the OHRC lacks the willingness to enforce the code, its insensitive process has further victimized many victims. I have personally witnessed the emotional, mental and physical breakdowns of victims due to the constant stress.
Recommendations:
(1) Crown attorneys enforce the code: Perhaps the most persuasive argument which serves to protect the Ontario Human Rights Commission is not that this institution performs its mandate adequately, but that the crown attorneys and judges are not sensitive to the feelings of victims of racism. This sensitivity cannot be detected from the human rights officers and the chairpersons of the board of inquiry either. Besides, if the crown attorneys can prosecute fishing, traffic and other provincial offences, there's no reason they cannot prosecute human rights offences.
Therefore, I respectfully recommend the province put the Ministry of the Attorney General in charge of the investigation and of the prosecution of human rights offences. This change would bring more respect to the Ontario Human Rights Code and more authority to the enforcement of the code. Once this change is done racists can no longer take the Ontario Human Rights Code lightly. They will realize that if they violate another person's human rights they cannot escape the consequences.
(2) Completely dismantle the Ontario Human Rights Commission and set up a $15-million fund to help victims seeking justice in court. For 10 years I've been calling for the reform of the Ontario Human Rights Commission. Each time a new chief commissioner has been appointed new hope is put on that person. Unfortunately, this hope always becomes disappointment. The fact is, this institution is rotten to its core. Reform is impossible.
The complete dismantling of this institution would only benefit the cause of human rights. The Ontario Human Rights Commission does not work. If racism is like cancer the OHRC is the wrong medicine to treat the disease. This wrong medicine has to be replaced because racism is on the rise. The situation is turning from bad to worse.
To dismantle the OHRC, Ontario will save about $15 million a year. This amount of money can be put to good use. I respectfully recommend the appropriation of a $15-million fund to help victims of discrimination to seek justice in court. As it is now, the victim has only a few deadend choices that invariably lead to frustration. If there is a strong backing of a public fund a victim would have the choice of hiring a trustworthy lawyer to help him or her in seeking justice.
(3) Rewrite the law enforcement section of the Ontario Human Rights Code. If there is a perfect piece of law in the world it is part I, the first nine sections of the Ontario Human Rights Code. Part II, "Interpretation and Application," is also noteworthy. However, the code is damaged by the remaining three parts, the parts regarding enforcement. Without proper enforcement the code is only made to be seen, not to be respected. Few people would argue that to maintain safety on highways the authority can overlook the law enforcement of the Highway Traffic Act and stress public education. However, when talking about the protection of human rights many people would say that law enforcement is not important. The priority is public education. It is my view that the respect of the Ontario Human Rights Code can be achieved by having public education and law enforcement working hand in hand.
I respectfully call upon the Ontario Legislative Assembly to rewrite the law enforcement section of the Ontario Human Rights Code. May it give the right direction for this generation and future generations.
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Mr Alvin Curling (Scarborough North): Thank you for your presentation. You have been an ardent individual who has worked towards human rights in this province for a long time and continue to do the work you do and you do it well.
Some of the things that you reflect in your presentation are things that we have been hearing from time to time. Because we only have four minutes I'm going to ask you some very, very short questions and you take the liberty wherever you feel.
The Mary Cornish report has a number of recommendations in it. Overall, how do you feel about the recommendation that asks specifically for more independence from the government?
Mr Fu: I don't agree with the report. I think that report changed one revolving door into three revolving doors. It gives victims even more frustrations. But I do think there needs to be an independent body to enforce the Ontario Human Rights Code, the first nine sections of the code.
Mr Curling: The other part that concerns us and concerns my party is that the Human Rights Commission seems to fall into what they call the backlog, all these cases have been sort of stuck for years and people are not hearing their cases for three or four years in some instances. How do you feel they should approach that? They have tried. The Human Rights Commission came before us and called it small miracles, a little bit of miracles. I tell them, give me $6 million and I could show you some great miracles. The fact is that this amount of money somehow puts some effort behind eliminating or reducing that backlog. What is your perspective of this backlog and what impact do you think it has on a community that expects justice from a commission like this?
Mr Fu: It encourages racism. I think the OHRC is luck of the wheel to protect human rights. There are cases that have been there 10 years. They just don't want to touch it. From some inside study which has been released recently, inside the OHRC cases are closed for office politics. When the commission wants to favour a manager or favour a human rights officer it gives the human rights officers easy cases and then it closes cases for no good reason, just to accommodate a manager it favours.
Mr Curling: The Ontario Human Rights Commission should be a commission in which to address systemic racism. As you said, it's like a cancer; you've got to get to the core of it. Racism or discrimination or injustice in human rights usually is based in the systemic manner in how things are being done in policies.
Do you feel that the Human Rights Commission is doing even a fair job in regard to systemic discrimination? I know that the federal government's human rights doesn't address that systemic policy area. How effectively do you feel that the systemic unit in the Human Rights Commission is working?
Mr Fu: It doesn't do anything. It doesn't do anything to discourage racists not to harass or discriminate against minorities. It doesn't do anything at all.
Mr Allan K. McLean (Simcoe East): On page 4 of your brief you indicate that: "Many human rights officers begin their career as contract employees. It is alleged that they are promoted when their behaviour pattern is found to be consistent with the existing subculture." What do you mean by "subculture"?
Mr Fu: The subculture is what I have put down today. The subculture is talking about human rights and actually not really protecting human rights, talking about racism and actually not really fighting racism. It's a waste of $15 million of taxpayers' money.
Mr McLean: "One of their former chief commissioners has mentioned interference from the minister." What commissioner was that and which minister was that?
Mr Fu: I gave it some thought when I put down this statement. I appreciate today's opportunity so I told myself I have to put down what I honestly feel and what I honestly witnessed. But I approached that person as a journalist. I have my ethics. If someone takes me to court I would tell a judge the person's name and the circumstances under which I got this piece of information.
Mr McLean: But you're not going to tell us today.
Mr Fu: I cannot, I'm sorry. The purpose is not to destroy any individual or to cause a political scandal, but it's an honest statement.
Mr McLean: Is the minister one of the recent ministers?
Mr Fu: I don't want to elaborate.
Mr McLean: Okay, thank you.
Mrs Elizabeth Witmer (Waterloo North): You've suggested here that we dismantle the commission and the money can be used to help the victims. Then I guess you're suggesting that crown attorneys enforce the code.
Mr Fu: Yes.
Mrs Witmer: How realistic do think that proposal is? Why would the crown attorneys be any more effective in dealing with the cases?
Mr Fu: First of all, right now the Ontario Human Rights Code is a joke. You see racism, racial harassment, discrimination everywhere. When people do harass others, do discriminate against others, they don't have a second thought. They know the Ontario Human Rights Code is a joke. They won't get any consequences. Even if they get caught there'll be no more than a slap on the wrist. They know that human rights officers lack willingness to enforce the code.
If we put crown attorneys to do the job, the immediate result would be the prestige. It means Ontario in future means business when it confronts racism. If crown attorneys can prosecute fishing offences, can prosecute traffic offences, there's no reason they cannot prosecute human rights offences.
Mrs Witmer: Where are these offences occurring most often, do you believe?
Mr Fu: It's all over. People call me late in the night and talk about their sad experiences. I've seen people go mentally ill and from mentally ill to developing physical sickness. It's sad, sad and all over.
My personal impression is that in the public sector racism is worse than in the private sector. In the private sector the employer demands efficiency for its own survival but in the public sector it's a different story: all over.
Ms Jenny Carter (Peterborough): We are all concerned to see that racism be overcome in this province and that human rights should be enforced. We are looking for the best way to do this, and considerable effort is being made right now to reform the Human Rights Commission from inside. I tend to have a rather more optimistic view than you do as to how possible that is.
Like Mrs Witmer I'm wondering about your suggestion that cases should go through the regular court system, because the regular courts too can get overloaded. I seem to remember that there was a large backlog and we had something called the Askov decision and a large number of cases were in fact dumped because the backlog was just piling up too much.
I'm just wondering how you would see the regular system coping with the huge influx of new cases that would result from your solution to this problem.
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Mr Fu: First of all, the backlog of the Ontario Human Rights Commission is not because of a heavy duty or too many cases, because that commission does not help victims. It doesn't have the will to fight racism.
On the other hand, once I caught a fish at the wrong spot. There were permanent fishing sanctuaries; there were temporary fishing sanctuaries. I always know which area is a permanent fishing sanctuary. I overlooked a couple of months the other side of the lake; this is a temporary fishing sanctuary. I was caught. The policeman took my fishing gear and gave me a summons. I was impressed, because there is a section of the fishing regulation I violated. I was taken to the court within six months. The prosecutor and the judge were all serious. I was pleased, because then I know natural resources are well protected.
But in terms of human rights offences, it's a totally different story, as I mentioned in my presentation. It's a totally different story. The offenders know they're home free.
I don't think the backlog in the court is as heavy as the backlog in the OHRC, and I don't think the backlog in the OHRC will be ever improved. I doubt the new commissioner's measures would improve its efficiency. It is my view that that commission is rotten to its core. A recent study reveals some human rights officers called the OHRC a racist institution.
The Chair: Mr Marchese, 30 seconds.
Mr Rosario Marchese (Fort York): For 30 seconds, it's not worth asking a question.
The Chair: All right. Thank you very much, Mr Fu, for your appearance and your contribution before the committee this afternoon.
Mr Fu: Thank you, Madam Chair and honourable members of this committee. I really appreciate this opportunity.
LOU RONSON
KAREN MOCK
The Chair: Our next deputation is Mr Lou Ronson, who is the former vice-chair of the Ontario Human Rights Commission and past national chair of the League for Human Rights of B'nai Brith; and also Dr Karen Mock, former national director of the League for Human Rights of B'nai Brith. Welcome, Dr Mock and Mr Ronson. The next half-hour is yours.
Mr Lou Ronson: Madam Chair, just a correction, if I may. Dr Mock is the current national director of the league for human rights.
The Chair: I'm sorry. The note on here said former. We'll correct that to current.
Welcome. You can use the next half-hour as you wish. If you can leave time for the committee members to ask questions, that works well, too. Please go ahead.
Mr Ronson: Madam Chair and honourable members of the committee, my name is Lou Ronson, as you have heard, and I'm speaking to you today as a former vice-chair of the Ontario Human Rights Commission, the founder and past national chair of the League for Human Rights of B'nai Brith, and the past national co-chair of the Canadian Council of Christians and Jews. For over six decades I have served nationally and internationally in various advocacy roles on human rights issues, especially those related to racism, anti-Semitism and religious bigotry.
In those early years, the dehumanization of minorities was quite fashionable and discrimination was rampant in every aspect of society: social, professional, commercial, academic, throughout the public and private sectors. But we have come a long, long way since then and behavioural patterns as well as attitudes have improved dramatically in the past 25 years, for which credit must be due to the enactment of the Human Rights Code in 1962 and the consequent establishment of the Ontario Human Rights Commission.
Do I therefore feel that our battle for the dignity, equality and freedom from discrimination for all Ontarians is almost won? Not by a long shot. There is much yet to be accomplished, but I do believe our cup is half full and not half empty.
For a number of years, the pioneer commissions did exemplary work in rooting out discriminatory practices and enforcing the code. They handled their modest case load well. The Ontario Human Rights Code became a model for many jurisdictions in North America.
In 1981 the Human Rights Code was upgraded to provide, inter alia, protection for individuals with disabilities, which cases now comprise about one third of the commission's entire case load, representing by far the largest of its 15 statistical classifications. In 1984 and 1986, new amendments were introduced, further broadening code coverage.
By this time, the commission was being flooded with an inflow of complaints far in excess of its capacity to cope considering the resources then available to it. Adequate budgets were not forthcoming and soon the backlog began to assume formidable proportions, accompanied by growing criticism from the public and the media. This is amply illustrated by the attached statistical exhibit. This adverse condition still exists today, resulting in a diminution of credibility which in itself is damaging to the work of staff and their morale.
The current administration has worked assiduously to streamline procedures and to improve the efficiency and effectiveness of the organization as a whole, with considerable success. But they cannot achieve what is unachievable with the inadequate resources available to them. It is totally unacceptable in my view to have several hundred human rights cases lingering for three years or more in the case load. It is equally unacceptable to carry a backlog which on the average could take a year or more to resolve.
I know that at this time of financial constraint it is not realistic to expect a commission budget to adequately fund the resources needed to resolve the problems I have mentioned. Probably there never will be sufficient funds available because, ironically, the greater the credibility and effectiveness in case management achieved by the commission, the greater will be the inflow of complaints, until that hopeful point in time when case shrinkage will begin to occur because of a more enlightened society.
All of which brings me to the conclusion that it's time to do a pragmatic legislative tuneup of the Human Rights Code. In my view, it is unnecessary and unproductive for all 10 commissioners to study, discuss and pass judgement on a majority of the cases that come before them after each case has been documented and reviewed by several levels of professional as well as legal staff. It is a painfully slow and ponderous process.
I would propose that the equivalent of a Small Claims Court be established with no more than three full-time commissioners sitting as a tribunal on a daily basis to adjudicate selected cases of lesser importance to the public interest. Such cases would not consume the considerable amount of time now spent on stale investigations of old cases by investigators as well as other members of staff, who are all in short supply. The complainant and respondent would be required to appear before the tribunal with witnesses and counsel, if any. Counsel for the complainant would be provided, as now, by the commission. Summary judgement would then be rendered on the basis of provided evidence and/or credibility.
This would produce a fast-track solution for the many relatively minor cases before they build up severe emotional resentment and even prove to be insoluble because it is too late to effect an achievable remedy. Such a procedure would remove a considerable load from the commission and its staff, allowing them to focus on the more difficult and complicated cases, which often have a major impact on the general public interest. More time would also become available to address and investigate cases of systemic discrimination, where the greatest amount of good can be achieved for the greatest number of people and society as a whole.
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In my experience, a considerable amount of systemic discrimination occurs unknowingly through ignorance and without deliberate or malicious intent. This often invites an educational response. So for the second part of this presentation, I would like to introduce Dr Karen Mock, who has special expertise in human rights education. She has developed and taught courses in multicultural, anti-racist education and has published widely on resources for young children and access to government services by minority groups, as well as teacher education and policy development on these and related issues. She is currently the national director of the League for Human Rights of B'nai Brith Canada and also serves as chair of the Canadian Multiculturalism Advisory Committee, the advisory body to the secretary of state for multiculturalism and race relations.
Dr Karen Mock: As many members of the committee are aware, the League for Human Rights of B'nai Brith Canada is a community-based volunteer organization dedicated to combating racism and bigotry and to promoting human rights for all Canadians. Therefore, I was very pleased when Mr Ronson invited me to participate in the presentation today and I jumped at the chance to appear before the standing committee.
Time does not allow my describing thoroughly the league's proposed changes to the code itself and to the implementation of the code. These have been elaborated publicly at the Ontario Human Rights Code Review Task Force in April 1992 and at a commission press conference in June 1993, summaries of which have been attached to our written submission for those committee members who may wish to review them.
At this time I would like to comment only briefly on the potential for community contribution to the timeliness and effectiveness of case management and then focus the remainder and the bulk of my remarks on strategies for public education and advocacy, also with an emphasis on community participation and partnership.
Although there has been some progress made in case management, it has been our experience that many individuals with legitimate complaints are still afraid to initiate an official complaint with the commission because of their perception that the process is both inefficient and ineffective and possibly even detrimental to their interests. Potential complainants are left with only internal procedures in their own organizations that are at best inadequate, often fraught with systemic barriers, and at worst may even be corrupt, leading to further victimization of the complainant with no protection.
We look to those with case management expertise, such as Mr Ronson, to recommend effective streamlining strategies. But at a time of declining resources, the commission might make more effective use of existing community organizations: first, by giving them better access to the process by granting them standing to advocate on behalf of deserving complainants and/or allowing third-party intervention and, secondly, by offering support to community organizations wherever appropriate when services are rendered to complainants, respondents or even the commission itself.
Community organizations with human rights expertise can and do assist by serving a first-line screening function to advise potential complainants on the merits of their case. They can provide their research on and expertise with certain kinds of cases or issues and can serve as a support for aggrieved community members who may feel further victimized by an impersonal, lengthy and confusing bureaucratic procedure. Community agencies can serve in an advisory capacity to the client as well as to the commission, thereby creating greater equity in access to information and also saving time for the commission, particularly when staff turnover may result in a shorter corporate memory among case workers than in community agencies.
Building effective community partnerships, however, requires an ongoing relationship, not just a call for community input on a one-time basis for a task force or when a crisis occurs and the commission wants to know what role it can play. We are pleased that there has recently been outreach for community input and look forward to an ongoing cooperative relationship in service delivery, not a competitive one or even an exploitative one, as is sometimes the case with government agencies. However, we are concerned about the increased divisiveness among and between community groups that is often exacerbated by government when only lipservice is paid to community consultation or when groups are pitted against one another in competition for scarce resources. Government agencies must create more innovative models of community partnerships and cooperation.
Not only must the management of cases be timely, efficient and fair, as has been said by many others besides myself, but it must also be seen to be timely, efficient and fair, which brings me to the issue of public education and advocacy and more information getting out there to the community and to the public about expediting not only cases but about human rights themselves.
As Mr Ronson implied earlier, there is a tremendous need for the public both to understand and to learn to identify systemic discrimination, to avoid human rights infractions due to ignorance. Our workshops in both the public and private sectors reveal a lack of knowledge among employers and employees of both their rights and responsibilities, let alone what to do when there is a complaint.
We have also found many cases in which internal investigative skills are woefully inadequate, even in companies and agencies that have harassment policies, such that the very policies designed to redress systemic discrimination in practice may actually reinforce it.
Similarly, with the rise in white supremacy, right-wing thinking and rhetoric and the backlash against multiculturalism, race relations and immigration, we have found that the public is willing to accept the misleading media hype on human rights issues and the related issues of employment equity, usually out of sheer ignorance. Reaction to the Donna Young report was a good example of this phenomenon.
Perhaps a more frightening example occurred more recently when we were called by a very concerned high school principal to work with a group of young people and their friends who were being drawn in by the Heritage Front and the Church of the Creator, two notorious white supremacy groups who recruit vulnerable targets with their attractive slogan "Equal rights for whites." These students were convinced that their human rights were being violated by the federal and provincial policies of employment equity, immigration and multiculturalism and even by their own school board's anti-racist initiatives and practice of recognizing a variety of religious customs and celebrations.
What became immediately clear, after a brief quiz, was that these teenagers knew virtually nothing about human rights and so were easily drawn in by the emotional manipulation and virulent hate propaganda of groups intent on violating the rights of others under the guise of preserving their own.
I must add that when I came in, I was very encouraged to see a draft document for schools and also the policy statement publications. We certainly are looking forward to reviewing these thoroughly.
It is our belief that the battle against racism and bigotry will ultimately be won through education, broadly defined. An effective public education campaign could include: public service announcements, advertisements, school curriculum at every level of the system from the earliest childhood level right to post-secondary, teacher education, management training, training of trainers in human resources, pamphlets, brochures, guides, guidelines, fact sheets, computer-assisted instruction techniques, computer bulletin boards, user-friendly reports on cases, effective publicity of cases, where appropriate, hotline/helpline, media briefings/education programs/articles, sector- and profession-specific instructions.
Dare I add that these are all the techniques that are being used by the hate groups to disseminate their information widely. I think we need to use many of the same techniques available to us, and I am sure there are many more creative ideas, with all of the above in consultation and partnership with both community organizations and the public and private institutions and agencies that have expertise and/or some jurisdiction in those areas.
But I have a word of caution similar to that I raised earlier when referring to community groups. With the expansion in government and in the community of equity organizations, advocacy and structures, including employment equity, anti-racism, multiculturalism, gay and lesbian rights, disability issues, women's issues, anti-poverty concerns and so on, there is an increasing tendency towards turf wars between and within departments, as needs increase and budgets decline. At this juncture in history, with the rise of racism, anti-Semitism and xenophobia, nationally and abroad, we cannot afford to be fighting within the family, neither with communities nor within government. Every agency and organization must define its mandate in terms of what it does that no one else can or should do, which is also what it should do best, and then do it and cooperate with the others for the rest.
Let us all support the Human Rights Commission, all communities and all parties, to enforce the code through timely and efficient case management, but let us also all work together with the commission to educate all Ontarians on their rights and responsibilities under the code and to advocate for better human rights protection for all.
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Mr McLean: I have one question for you, Doctor. On page 7 you indicate partway down through the first paragraph, "and even by their school board's anti-racist initiatives and practice of recognizing a variety of religious customs and celebrations." Could you indicate to me what school board you're referring to there?
Dr Mock: I could mention the specific school board, but in fact every school board in the Metro area has anti-racist, multicultural policy.
Mr Marchese: Toronto, North York, various boards.
Dr Mock: Yes. They all do. I don't want to target that particular school.
Mr McLean: You said their school has anti-racist initiatives and practices.
Dr Mock: Yes. They have some very effective --
Mr McLean: And you're saying that all school boards have that?
Dr Mock: All school boards in Ontario have recently been mandated to create them. In the Metro area and in southern Ontario all school boards already have them. That particular school board was in the Halton region actually and had within that school effective multicultural, human rights, anti-racist policies operative. These young people thought that by those policies their human rights were being violated, which of course was absurd.
Mrs Witmer: You mention at the top of page 7, Dr Mock, "Similarly, with the rise in white supremacy, right-wing thinking and rhetoric..." I'm not quite sure what you mean by "right-wing thinking and rhetoric." It's the same page as Mr McLean referred to, page 7, at the top.
Dr Mock: I think in general we are experiencing, nationally and also abroad, an anti-immigration backlash, an anti-multiculturalism backlash, this kind of rhetoric that really verges in many ways on propaganda: the repetitive slogans, the half-truths, the stereotypes about even the kind of equality legislation that the Human Rights Code provides. When you hear that kind of thing often enough, when these kids hear, "Equal rights for whites," or "Human rights are really a violation of your rights," and so on and so on, this is what I'm calling rhetoric or a right-wing-verging-on-white-supremacy kind of extremism.
Mrs Witmer: I'm a little uncomfortable because I don't like to see us labelling things. We could say "left-wing thinking." I don't know what that is either.
Dr Mock: Okay. I take your point.
Mr McLean: Mr Ronson, you were vice-chair for some time of the Human Rights Commission. You heard the individual who was here before you express his very strong concerns with regard to the commission. What do you think of the expressions that he made?
Mr Ronson: When you've been a victim of discrimination you feel very strongly about it, and if you've had to wait for a year, two or three or whatever, to have your case resolved. Let us say for example that you've been turned down on an apartment because of racism or whatever the infraction might be. To get that apartment available to you a year from then is of no value, because it's already occupied. I've seen cases where finally the resolution of the case was that the landlord will have to make available the next vacant apartment to that complainant, who may or may not want it by the time it's available. There are many of these cases that just don't get solved because they're out of time, and this causes tremendous resentments.
Mr McLean: He thinks the commission should be totally done away with.
Mr Ronson: I heard that. That's a very extreme view.
Mr Marchese: I welcome you both to these hearings and I appreciated the comments you both had to make in this regard. Some quick things. The Toronto Board of Education had one of the best race relations policies I suspect in North America. They were developed in 1981-82. We discovered five years later, when the Hitner Starr report came out, that we hadn't implemented any of the 120 recommendations. Perhaps we had a few, but on the whole we didn't implement. So we failed in the arena of enforcement and monitoring. Good policies, we've discovered, mean nothing unless you enforce them and unless you have ongoing public monitoring of those good policies.
One can think of all the work that needs to be done to get anti-racist practices, and all the suggestions you made need to continue to happen across the country. Anti-racist policies, of course, have to be in place by all boards, but as I say, we need enforcement and monitoring.
Much of what you said had to do with systemic changes obviously in terms of how we change racist discriminatory attitudes that we have, sometimes well hidden, sometimes quite open. Are you in accord with what Ms Cornish's report had written about 18 months ago in terms of what we need to do with the Human Rights Code? Do you support those changes, or are there things you disagree with and some you agree with, or what?
Dr Mock: I'm certainly not in accord with the entire report. To describe in depth our reaction to each section of the report is really beyond the scope of this discussion.
Mr Marchese: Of course.
Dr Mock: On the question of serious implementation and rigorous addressing of systemic discrimination in every sector, you raised the Hitner Starr experience and the Toronto board experience. We learned a great deal from that. I was privileged to be able to do for the Ministry of Education a few years ago an overview of all of the equity, anti-racist and multicultural policies. Since that time, when you examine which policies really seem to work and which ones don't, it's the ones that actually specify implementation and accountability right in the administrative procedures of the way an entire organization is operationalized.
To that end, we would certainly support any recommendations of a body like this that were in keeping with strengthening systemic units and the clout that they would have with employers in insisting that they not only understand but implement measures to remove the barriers to equality.
Mr Marchese: I wanted to raise a point that you had talked about in terms of third-party intervention. I had asked the commissioner the question of whether or not third-party intervention was possible. The commissioner replied that organizations could in fact represent complainants but such organizations, pursuant to the code, could not bring the complaint on behalf of the individual.
The lawyer representing the board said to add to this that those organizations, such as for example ARCH and CERA, often draft the complaint on behalf of the individual and continue to act as the complainant's representative throughout the investigation. These organizations reply to correspondence, coordinate the replies of the complainant to any questions asked by the officer and prepare the complainant's response to the case summary.
It appears that third-party intervention is there. Is that your understanding?
Dr Mock: That wouldn't exactly be an actual third-party intervention. That is a third party assisting as an advocate and working with the complainant. I guess we're looking at more something like what in the States might be called a friend of the court, or the third party itself bringing the complaint, where the onus doesn't always only rest on an individual, or to find the individual who has been aggrieved when in fact it may be an entire community that is aggrieved. We could look at third-party issues there, group defamation and so on.
Mr Curling: This half-full cup that we have here so far with the Human Rights Commission that we have progressed, as you said, Mr Ronson, does it concern you, the kind of lipservice or the minimum amount of effort that the Human Rights Commission is now doing in regard to addressing systemic discrimination, that basically the core of getting rid of these discriminatory practices and human rights injustice practices would be systemic, to look at it from a systemic point of view, and they are not doing sufficient? How do you feel about this, that they have done almost lipservice to systemic discrimination?
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Mr Ronson: I feel very strongly about that, in a negative fashion, and have felt that way all the six and a half years I actually served on the commission. I was always a proponent of putting greater emphasis on systemic discrimination and not consuming so much of our time and energy on the less important -- every case of discrimination is important. It's certainly important to the individual; there's nothing more important. But when you have limited resources and limited time available, you have to give attention to those things that require priority.
I could never seem to find that -- you see, we always had great commissioners, great staff, a wonderful legal committee, and I imagine it still exists. But the sense of compassion takes over when you're looking at a case. Even though it may be a very small, unimportant case, relatively speaking -- this is the way I mean it -- you get drawn in. I don't think it takes 10 commissioners to pass judgement on the majority of these cases. I think there is room for streamlining -- that's the whole basis of my brief -- so that we can get at this, because we want to solve this problem of racism in society. We've got to get at systemic discrimination. That should be the main priority and most of the funds and resources that we have available to us should be spent in that direction.
Mr James J. Bradley (St Catharines): I'd like to go back to page 7, "this right-wing thinking and rhetoric and the backlash against multiculturalism, race relations and immigration. We have found the public is willing to accept the misleading media hype on human rights issues and the related issue of employment equity, usually out of sheer ignorance." I'm concerned about that because, whether I agree or disagree with those who express those views, we do live in a democracy. Isn't it becoming somewhat dangerous if we immediately label people who have different views -- I'm not talking about the extreme right-wing types who use what every decent person would consider to be unacceptable, but that kind of statement on page 7 certainly, in my view, provides fuel to those who are resentful of the Human Rights Commission and to proponents of multiculturalism, race relations, immigration and employment equity and human rights issues, when we simply label those people and the views expressed in opposition to those policies as being unacceptable. Isn't it a danger that this kind of statement is going to precipitate even more anti-Human Rights Commission dislike and give ammunition to those who are opposed to what you stand for?
Dr Mock: What I was suggesting here was that it was the ignorance of the public that made them vulnerable to believing those views or to merely accepting. Just as you said yourself, you may not disagree with these views that are accepted. It's not those views, necessarily, that I'm labelling, but rather the sheer ignorance of the population that is receiving them, because we haven't done a good enough job, all of us, in communicating to them what the Human Rights Code is really all about or in simple enough terms that people will understand that no, their rights are not being violated, no, they don't have to accept what they read, the inflammatory backlash type of motivated responses that they read, if they have the information at hand, if they have the facts at hand, if they have, I guess, what the educators call the cognitive support for being able to evaluate what they read. Then they can decide whether to believe it or not.
Mr Bradley: Do you have an --
The Chair: I'm sorry, we're out of time. Again, our appreciation to you, Dr Mock, and to Mr Ronson for your appearance this afternoon.
Mr Ronson: Thank you for the opportunity.
The Chair: We're glad that you were here.
RUSSELL JURIANSZ
The Chair: Our next presenter is Mr Russell Juriansz of Blake Cassels and Graydon, barristers and solicitors. Mr Juriansz is a former director of the Canadian Human Rights Commission. Welcome to the committee, Mr Juriansz. Is that information correct?
Mr Russell Juriansz: Not quite.
The Chair: I wondered. I noticed you were making a face. I'm reading off our agenda here, so maybe you could correct us, and you have the next 30 minutes.
Mr Juriansz: I'm not sure whether I should sit at the right desk or the left desk after the discussion we've had. I am pleased to be here and to participate in your important work. I regret I haven't had as much time to devote to getting ready as I might have, because I am no longer with Blake Cassels and Graydon; I've established my own law firm as of February 1. That was one reason for my face. I did have the privilege of working with Gordon Fairweather at the Canadian Human Rights Commission for close to 10 years. He was the chief commissioner; I was the general counsel and director of the legal branch only.
I have been in private practice for, I guess, close to eight years now, since leaving the federal commission, practising human rights exclusively. I act primarily for respondents, but I do act for complainants as well. I've also taught human rights law and I've been involved in the area of human rights for close to 20 years. I say that after telling you I didn't have enough time to put it on the brief and try to bolster my credibility.
You've probably heard a great deal that the commission needs reform, and in my paper I've referred to that. There's one, I think, vivid illustration that the code, which I believe was originally enacted in the 1960s -- and the scheme hasn't changed since then -- drastically needs updating. You see, the official title of the head of the Ontario Human Rights Commission is "chairman." There is no thing as "chief commissioner." But the commission is too embarrassed to use the official title in the Ontario Human Rights Code, which is "chairman." If that doesn't prove that the code is out of date, I don't know what does.
I've divided my paper into two sections: first, the problem and, second, some suggestions for a solution. But the main problem is delay, and I would guess that you've already heard a great deal about delay. I would suggest that there are some reasons for it, and one of the reasons is that, in my view, the commission creates its own backlog or contributes to the creation of its backlog.
The commission constantly strives to enlarge its jurisdiction, and accepts every single type of complaint imaginable. In the paper I use as an example the commission's attitude towards the ground "handicap." Originally, the commission imposed virtually no limits on the type of medical condition which could constitute a handicap, and on page 3 I've quoted from a 1989 paper of the commission that stated that a handicap included "virtually any illness or injury, regardless of its severity or duration. The definition covers, for example, minor illnesses such as a cold or influenza..."
Now, a board of inquiry in 1990 told the commission that it was wrong and explained to the commission that that's not what the Legislature had in mind when it added "handicap" to the Human Rights Code. Since then, the commission has changed its standards and no longer deals with transitory medical conditions, but I don't think the underlying attitude that led the commission to take such a broad view of its jurisdiction has changed, and the commission still takes a broad view of its jurisdiction in other areas. Again, while the commission did change its standards on "handicap" after the board decision, in the years leading up to that board decision it had literally choked itself with complaints by accepting such a wide definition.
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There are current examples. One example that's talked about a great deal is the sale of adult magazines in neighbourhood convenience stores. I'm not going to take a side and say they should be sold or they shouldn't be sold, but there are two levels of elected government that have dealt with the matter: There's the Criminal Code and there's the municipal councils that said the covers had to be concealed. If the complainants felt that these standards were inappropriate, then of course they could attempt to get their elected representative to change the standards. But the question is, should the Human Rights Commission be the final arbiter of all social issues? If it is going to be the final arbiter of all social issues, even issues that have been decided by elected governments, then of course it is going to be backlogged.
Another example I use is that currently the commission's definition of "undue hardship" in the case of accommodation is so broad -- and I've quoted from a commission document that it says that cost will not constitute undue hardship unless it substantially affects the viability of an enterprise. It's a bankruptcy test, or pretty close to it. The effect of such a broad view is that it multiplies the complaints that the commission has to deal with.
I suggest that because of the commission's jurisdiction-hungry nature, no matter how much it's supported with resources and staff, it will always be backlogged because it will always be sucking in more complaints.
Related to that is that the commission -- and I'm skipping over to page 7 now -- can't say no. In 1981, the code was amended to allow the commission to play a gatekeeper role. A section was added to the code to allow the commission to refuse to deal with a complaint at the beginning, before it investigated. Well, the commission doesn't use that section very much. The commission simply has the jurisdiction, but it doesn't use it.
The next section I've entitled "Head Office: The Abyss." As a human rights lawyer, I deal a great deal with investigators, and sometimes you don't hear from them for a long time. Months go by and then when you hear from them, you say, "Where have you been? Why haven't I heard from you?" and the reply I hear often is, "I've just got the file back from head office where it was being reviewed." As the previous witness indicated, there are several levels of review at the commission, both head office departments and regional managers as well, and I think these multiple levels of review cause delay.
Commissioners: The commission decision-making meeting was identified as a bottleneck in the Ombudsman's report, but you have to remember -- and I'm not criticizing the individuals who are appointed commissioners; I accept that they are diligent, act in the best of faith and are committed individuals to their office -- they meet two to three days at a time every four to six weeks, and there are so many cases to go through they couldn't possibly review the actual files and the evidence and the interview notes of the witnesses. They have to deal with summarized, digested briefing material prepared by staff.
This does two things. The first thing is that it puts an inordinate paper burden on the staff and diverts the staff from devoting itself to processing complaints, but it also removes the decision-maker from the front line. The commissioners have not met the people involved, have not interviewed them. I suggest that the infrequent nature of their involvement prevents them from developing the necessary expertise to make effective decisions, and then if they ever do develop it, they're disqualified from serving because there's a two-term limit on being in the office.
Boards of inquiry: Boards of inquiry are generally part-time, ad hoc boards. They're law professors who are appointed to hear the cases. They teach their classes, and they may have a day or two a week that they're free and they want to schedule the cases during those days. You put that together with the schedule of counsel and it's pretty hard to start a hearing and finish it. What happens is that it gets adjourned and adjourned and it adds to the delays.
Then there's one other matter. I've called it the commission's many hats, the slanted playing field. The commission is investigator, it's educator, it's a conciliator, it decides whether a case will go forward, but once it gets to the ultimate stage, the commission becomes the lawyer of the complainant. Not technically, but in effect the commission is the prosecutor and represents the interests of the complainant.
My view is that the commission becoming the ally and the representative of complainants has the effect of permeating the commission's entire process and demeanour. I refer to the 1991-92 annual report of the commission, in which it referred to itself as being "technically in a neutral position between complainants and respondents." I think respondents would agree with that description. Even the Cornish task force noted that the commission itself expressed dissatisfaction over the confusion and conflict caused by its conflicting roles.
The other effect of that is that because of the commission, in effect the government, taking one side of the case, respondents are overmatched and often choose to pay a settlement rather than incurring the great expense of trying to establish that they didn't discriminate.
Now, the commission may say that its policy is not to coerce respondents into settlement, and I accept that, but the commission would be the first to agree that it's not intention that matters but the effect of a system in place. The effect of the system that's in place, in which the government pits the government against a private respondent, has the effect of putting a lot of pressure on respondents to settle.
Those are the major problems as I see them, and I have some suggested solutions. Now I'm on page 10 of the paper.
The first is that they should be full-time decision-makers. In 1961, when the code was first enacted, perhaps it was fine to have part-time commissioners making decisions, but there is no excuse in 1994 why human rights decisions should be made by part-time officials. I'm not suggesting that the office of commissioner be made full-time; rather, I'm suggesting, do we need such an office? After all, the staff are full-time and professional, and why not vest the chief commissioner of the commission with the full authority and let that authority be delegated so the staff could make decisions about what happens to the cases without all these levels of review? They'd be closer to the files.
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Full-time boards of inquiry: I noted that the Ontario Labour Relations Board has close to 50 full-time adjudicators to hear labour matters. They have a bank of hearing rooms in their premises. The Ontario human rights board of inquiry has a part-time head and one hearing room.
I thought about the next sentence in my paper. I thought perhaps it was too strong, but I decided to include it and I'm going to say it. This committee would be delinquent if it failed to recommend that the government immediately establish a properly empanelled full-time board of inquiry to hear cases continuously.
Other suggestions are to put clear limits on the commission's jurisdiction. The commission won't accept its jurisdiction; it always wants to expand it. It refuses to play the gatekeeper function. So the code should be amended to make clear to the commission what it should take and what it should not take as complaints, and I've given some examples in the paper.
Reduce the levels of review: Again, once an investigator, who's the front line -- has met the people, seen the evidence -- decides a certain recommendation is in order, why not have that recommendation go forward?
Lastly, the above suggestions are a fine-tuning, but a complete overhaul could be considered. Everybody wants a hearing. Everybody wants to go to a hearing, but you've got 2,500 complaints a year. You can't have 2,500 hearings a year. It's not practical.
What might be practical is to build on what already exists, a pre-investigation conference conducted by the investigator where the parties are brought together to try and identify what facts are agreed on, what facts aren't, what needs to be investigated. That could be expanded. Both the respondent and the complainant would be expected to come, tell their story, bring their witnesses, in a very informal way, and at the end of it let the person who is now the investigator make a finding and make an order right then and there. If people aren't happy with the order, then they can take it to a full hearing before a board of inquiry.
That would be very much like what works under the Pay Equity Act. The review officer informally looks into a matter and makes an order. It's not enforceable without consent. Either party has the right to go to the Pay Equity Hearings Tribunal. You might consider something like that. I would think it would be more workable than what's used now.
The main point I want to leave you with is that the Ontario Human Rights Code is very much like it was in 1961 when it was first enacted. It's been amended, it's been redrafted, but the basic scheme is what was first enacted in 1961. It is no longer meeting the needs of Ontario society in 1994 and needs to be looked at again.
Thank you for this opportunity.
Mr Marchese: It is Mr Juriansz; no?
Mr Juriansz: Yes.
Mr Marchese: I'm very sensitive to names. Mine gets distorted often.
You've read the Cornish report, I presume.
Mr Juriansz: I haven't read it lately. I hoped to read it before I came here, but I did read it when it came out.
Mr Marchese: You talked about an overhaul. You didn't quite say overhaul; perhaps it should be changed, because it has been since the 1960s when it was created.
Mr Juriansz: Yes.
Mr Marchese: Would you be recommending changes, in addition to the ones you've suggested, that Cornish makes in her report?
Mr Juriansz: I think there's a lot of wisdom in that report. There are things I don't agree with, but I don't think my suggestion is completely at odds with it. She wants to go to a hearing. My suggestion is a far less formal initial hearing, more of a meeting than a hearing. I think to have a formal hearing for all complaints is too big an undertaking. There are too many complaints, and to have a hearing for 2,500 complaints a year is too big an undertaking. It's not feasible.
Mr Marchese: That was the point I thought about having a full-time board of inquiry. Given that there are only a few cases now that go to a board of inquiry --
Mr Juriansz: Oh, I think there are a lot of cases that go to a board of inquiry. They're few relatively, a small percentage, but still a big number.
Mr Marchese: Right. My question was that if you create a full-time board of inquiry, would you not establish through it a court-like system, and isn't that the kind of thing we thought we might want to get away from? By having a full-time board of inquiry, do you not create a judicial kind of system in the way that we have the courts?
Mr Juriansz: I think a full-time board of inquiry certainly would be judicial. But it is a law, it's enforced as a law, and I think people have a right to a legal determination of their obligations and their rights. But I don't think you'd go to a full-blown formal adjudication as a first step. That's why I've suggested a relatively informal meeting conducted by what is now the investigator. That would be the first level of a hearing, and if people weren't happy with the outcome, then they would have a right to go to a formal adjudication in a court-like legal setting.
Mr Marchese: Cornish makes a point about investigation method and says:
"The present mandatory investigative process for every claim simply does not work well. The requirement for a discovery and disclosure process at an early stage would, in the task force's view, assist both claimants and respondents. Investigation would only be ordered where this process had not led to sufficient disclosure of evidence."
Do you support that statement?
Mr Juriansz: I don't disagree with that. In fact, that would work very closely with what I've suggested, which is, call everybody together and say: "Bring your evidence. Let's put it on the table. You have people who you say support you. Bring them in. Let's talk to them." At the end of it -- it might take a day or two days -- right at the beginning, the person who's conducting the meeting will have the right to make an order, if it doesn't settle. I suspect many of them would settle.
Mr Curling: Thank you, Mr Juriansz, for coming in. The last sentence you have in your presentation is, "Radical reform is imperative." I'm so glad my colleagues on the government side have started reading the Cornish report. We had hoped the minister herself would make some formal comment about the Cornish report, because there is some rather important reform that has been suggested in that. It's unfortunate, having spent so much money on these task forces, that no one even pays the courtesy of responding to it, whether they agree with it or not.
Mr Marchese: At least we asked for a report.
Mr Curling: They asked for it, but it's on the shelf.
Mr Juriansz: I think I'm caught in the crossfire here.
The Chair: Just ignore it.
Mr Curling: In the same report, Mary Cornish asked for more independence of government. As a matter of fact, more cases and human rights cases have been against the public sector than the private sector, yet we are so closely -- they call it arm's length. I call it almost like bosom friends, as a matter of fact. Do you feel that there should be a separate format, a different format than how the Human Rights Commission operates, in other words, reporting back to a legislative committee?
Mr Juriansz: Certainly that's the way it works federally, where the annual report goes to Parliament and it's only for administrative purposes that the federal commission reports through the Minister of Justice. I think that's a preferable system, yes.
Mr Curling: The federal system too that you speak about doesn't even handle systemic discrimination.
Mr Juriansz: Excuse me?
Mr Curling: Correct me if I'm wrong. The federal system, the Canadian Human Rights Commission, I presume, doesn't address much of the systemic discrimination, and Human Rights, Ontario, does a minimum amount of effort in regard to systemic discrimination cases, which is the core of getting rid of this terrible injustice in human rights. Do you feel that how it is set up now, maybe that's all the Human Rights Commission should be doing, identifying systemic discrimination, for instance, getting out of the triple role that you talk about here, trying to play the role of everyone? You have so adequately identified those roles. It will more or less mean it will want to educate, it will want to be the conciliator, it will want to be the prosecutor.
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Mr Juriansz: I didn't say it in my remarks, but in my paper I've suggested that in the model I've proposed, where you go from an informal meeting to a board of inquiry, a much scaled-down version of the Ontario Human Rights Commission could intervene in selected cases. In cases that are not routine, that involve larger issues, systemic issues, then a smaller commission would have the right to intervene and deal with those cases.
Mr Bradley: How do you solve the problem that you've identified? I must compliment you on your brief very much. I think it's very thoughtful. You identified a problem that says, "Respondents are overmatched and...choose to pay a settlement rather than incurring the great expense of...establishing that they didn't discriminate."
I'm just taking part of that sentence, but you're saying that the commission takes one side and it provides resources, becomes the prosecutor down the line, and the respondent is very vulnerable because the respondent may not have the money or the wherewithal to respond. How do you solve that problem then? Are you going to give them legal aid lawyers too? What are you going to do with that? What would be your suggestion to level the playing field and to overcome the perception that some people have out there that they are guilty until proven innocent?
Mr Juriansz: I think there are several things you can do. First, by putting more of an onus on the complainant to take the case forward, getting the commission out of it, that would help. By making it very clear to the commission what its role is, so that it's not taking cases, expanding its role against respondents, that would help. I think you could change the cost provision in the code.
Right now, respondents can only get costs against the commission if there's bad faith or hardship cause. You could expand that to make costs available in a broader range of circumstances. You have to remember that if you're charged with a crime and prosecuted by the government, you don't get costs and you have to pay your own way. I guess the problem here is that the cases aren't scrutinized as carefully for sufficiency of evidence and soundness in law before they're taken forward.
Mrs Witmer: I'd like to thank you for your very thoughtful and excellent presentation. I thought there were some very good suggestions here for changes. I was interested in your comment on page 5, where you say that the commission has a nature which is "jurisdiction-hungry." I would agree with you. It's just speculation, obviously, whatever your response will be, but my concern is, do you think the Employment Equity Commission that we set up might also have the same problem?
Mr Juriansz: Maybe I'll come back when you're looking into the Employment Equity Commission, if I can defer till then.
Mrs Witmer: I guess the other question that I would ask you is, there was some discussion, actually, around the Employment Equity Commission, the fact that really it should be this particular commission that should be dealing with the enforcement of the legislation. Do you think that would be possible, as opposed to setting up yet another commission which might function as inefficiently as this one does?
Mr Juriansz: As a general proposition, as few regulatory agencies as possible. I would go further and put together not only the Human Rights Commission, the Employment Equity Commission, the Pay Equity Commission, the labour board; I would create a superemployment agency, because there's so much overlapping. You can lose your job and grieve and go to arbitration. It could be because of harassment or something. Why not have one superagency that looks at all employment-related matters, an employment tribunal? So I would go much further than your suggestion of just putting the two together. I'd put five or six of them together.
Mrs Witmer: That makes good sense to me. Consolidate and at least make sure that whatever you come up with does function more efficiently than some of the commissions that we presently have.
Mr Juriansz: You might want to look at Britain. They've got an employment tribunal and an employment appeal tribunal with very broad jurisdiction.
Mrs Witmer: You were suggesting here that those people who have already gone through the Workers' Comp route should be prohibited from coming to this particular commission. What would be the rationale for that?
Mr Juriansz: I just used that as an example. What happens now is that people can try and get a solution to their grievance in a number of different areas, and if they lose in one place, they go to the next place. So it would be interesting to see, from the commission's figures, how many complaints are being dealt with, could be dealt with or already had been dealt with in another forum. So I just used that as an example. The Workers' Compensation Act does require employers to accommodate the needs of injured workers. There is a duplication there and both agencies could look at the same case. If you lose in one place, you go to the next.
Mrs Witmer: That happens all the time now. We all have constituents who have lost one place, so they go on to the next.
Mr Juriansz: The problem is that this adds to the commission's backlog because it's dealing with complaints that have already been dealt with or could be dealt with elsewhere.
Mrs Witmer: That's right.
Mr McLean, I think you had a short question.
Mr McLean: Yes. I'm just curious: How many people, would you think -- this is probably a question for the commissioner -- have been turned down by the WCB and have gone to the Human Rights Commission with their grievance?
Mr Juriansz: I've always thought it would be interesting to look at some of the figures. You'd need to do an audit, but how many of the complaints that the commission has were filed longer than the six months after the events, the code's suggestion? How many have been or could be dealt with elsewhere? These are figures that would really be interesting to know.
Mr McLean: The Ombudsman is supposed to be the last resort, and how many who don't get satisfied with the Ombudsman then go on to the Human Rights Commission?
The Chair: We're out of time. Thank you for your appearance before the committee this afternoon, Mr Juriansz. We appreciate your being here and your contribution.
CANADIAN MANUFACTURERS' ASSOCIATION
The Chair: Our next presenter this afternoon is Mr Ian Howcroft, the policy adviser for the Canadian Manufacturers' Association. Welcome, Mr Howcroft. You have the next 30 minutes. I think you've been here and know what the format is.
Mr Ian Howcroft: I'm the employee relations policy adviser with the Ontario division of the Canadian Manufacturers' Association.
The CMA appreciates the opportunity this afternoon to provide our comments to the standing committee on government agencies with regard to the Human Rights Commission. As most of you are probably aware, the CMA is a voluntary organization which represents manufacturers of all sizes, from all sectors of manufacturing and from all regions of the province and the country. Our members produce approximately 75% of both Ontario's and Canada's manufactured output. In Ontario, over 800,000 workers are directly employed in the manufacturing sector, and another 700,000 in the service sector are dependent on manufacturing.
The CMA has been very involved with the Human Rights Commission, an important institution, and has a long history of involvement regarding human rights. We recognize that the Human Rights Code has broader applications than just employers, but understandably the employer perspective will be the focus of our comments.
It's important to note and state that the CMA supports the principles set out in the Ontario Human Rights Code: Discrimination on the enumerated grounds, outside of lawful limits, should not be accepted, nor should it be tolerated.
The importance of and need for human rights legislation is widely recognized and supported. The provision of equal rights and opportunities without discrimination that's contrary to law is a laudable goal. However, in the pursuit of these goals and in the manner by which these goals are pursued, employers frequently encounter problems and endure unfair hardships, which ultimately serve to detract from economic growth, hamper effective management within those companies and, overall, diminish opportunities for individuals.
It's our view that the goals and mandate of the commission can best be achieved by fostering a spirit of cooperation with employers and with the other parties covered by the code. By working with the employer community, employees and the general public, the Human Rights Commission can create a climate which better promotes a voluntary compliance with the Human Rights Code obligations. The adversarial approach followed thus far by the commission, in many cases, and by some of its staff, only hampers the positive evolution of human rights. We hope that our comments and suggestions that follow assist in furthering human rights in the province of Ontario.
I would like to emphasize once again that the CMA has a long history of involvement with human rights and with Ontario's Human Rights Commission. We have met regularly with the chief commissioner and with senior staff over the last several years. We have found these meetings to be very useful and helpful and we hope they will continue in the future. It gives us the opportunity to meet and express our concerns to those who are directly involved and who are making those decisions.
We would also like to say that given recent reports, it would seem that some progress has been made with regard to clearing up the enormous backlog of cases that exist, or did exist, at the Human Rights Commission. However, there is still too much of a delay regarding the handling of human rights complaints, and changes must be made to ensure that cases are expeditiously and equitably resolved. The old maxim that justice delayed is justice denied holds a great deal of truth.
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The commission could list numerous cases which have gone on for not just months but years, in some cases five or six years. This is unacceptable to the complainant and to the respondent. Memories fail, records are destroyed and witnesses disappear or die. Therefore it is essential that a complaint be dealt with as quickly as possible. I emphasize this point. It is one of the most oft-cited criticisms that I hear vis-à-vis the commission. Delays like this are not tolerated in other areas of the law or branches of government, nor should they be at the commission.
Over the last several years we have received other complaints regarding the way in which complaints were investigated and handled by the Ontario Human Rights Commission. Many employers feel, and many more have the perception, that a Human Rights Commission investigator or officer is not a neutral arbiter intent on determining the facts and rendering a decision, but rather is an advocate for the complainant who is there to look for evidence that will only support the allegations of the complainant. In other words, the employer's side is ignored.
While many cases may be handled appropriately and properly, this is not the perception that exists in most of the employer community. I have heard numerous stories of employers who are loath to even contact the Human Rights Commission for fear of inviting the commission in and creating, not solving, problems.
Consequently, the commission should do all it can to inspire confidence and thereby promote human rights throughout the employer community and throughout the province of Ontario. An investigator should bring an unbiased mind to the investigation, learn the facts, and then render a decision.
This problem can be addressed in part by ensuring that human rights investigators or officers are properly and consistently trained. I have even heard of cases where the threat of an investigation was used to motivate an employer to a settlement.
We also hear concerns with regard to complainants pursuing remedies through several different forums. If a complainant has a grievance or a civil action on the same fact situation, then the commission should not proceed with its own investigation. Again, it's a question of effectively allocating the limited resources at the disposal of the commission.
CMA has always held the position that perhaps the most important part of the commission's mandate is to educate and communicate with the employer community, the employee community and the general public as to the rights, obligations and remedies that exist under the Human Rights Code. CMA has done a great deal with regard to this, and over the years has held workshops, seminars and conferences which have focused on or have featured human rights as a major issue or component. We have also kept our members updated with regard to human rights decisions and issues that may impact or at least interest them. In fact, last year we produced and published a handbook or a manual to assist our members, and employers in general, to understand and deal with human rights at a practical level.
There have been many developments in this area over the last few years, such as sexual harassment, so the educational role and component is now more important than ever.
I feel it essential to express the CMA's profound disappointment in the failure of the Human Rights Commission, as of late, to fulfil the educational aspects of its mandate. In planning and preparing for a human rights workshop that we held last fall, I was advised that the Human Rights Commission had placed a moratorium on public education. They declined our invitation to participate in the workshop, stating that their resources were going to be allocated to the resolution of complaints.
While we recognize, and we argued for earlier, that complaints must be dealt with expeditiously and equitably, it does not mean that the other components of the commission's mandate should be sacrificed.
When the newly appointed chief commissioner, Rosemary Brown, appeared before this committee last year, she stated that one of the three goals for her term as chief commissioner was to educate the Ontario public about equity issues. Furthermore, in a commission publication dated fall 1993 it states that "staff engage in numerous public education activities, representing the commission at conferences, workshops and seminars."
They obviously recognize the importance of education, but they failed to deliver. It was a missed opportunity for the commission to be proactive and take preventive steps.
It is impossible for the Human Rights Commission, or for any government body or agency, to monitor and police hundreds of thousands of employers, and the others who are covered by the code. The best way to promote and ensure compliance with the code is to communicate and to educate the various communities as to their rights and obligations, explain to them what's involved. We would like to stress that this mandate of the commission is vital, and the moratorium, in our view, should not have been imposed. On a positive note, it would seem that the moratorium will be removed in the very near future -- I believe in March.
We are also of the view that many Human Rights Commission's decisions and policies are excessive and unreasonable. They're a waste of the commission's limited resources. I'll just comment on one or two of these to illustrate my point.
One decision that the commission dealt with found that the common flu could constitute a handicap under the Human Rights Code. We found this to both trivialize the definition of handicap in the code and to ignore the situation of those who are truly disabled. This decision was overturned at a board of inquiry, but the cost, time and inconvenience it caused should not have been accepted or tolerated within the human rights system. This case should have been dismissed at the preliminary stages.
A second example I will address pertains to the commission's own guidelines on accommodation and undue hardship. We were very involved in providing input and comments to the commission on the development of these guidelines but we were very disappointed in the final product, which held that the test for undue hardship was one of bankruptcy. This means that to accommodate an individual, an employer would have to expend resources up to the point of bankruptcy. Again, in our view, this policy is illogical and it only works to make Ontario less competitive and less attractive to new investment. It also damages the credibility of the commission, making its role even more difficult. The commission must take steps necessary to establish its credibility.
To conclude, we would like to see the commission refocus its efforts and resources to ensure that human rights in Ontario are properly and effectively pursued and promoted. One concrete step the commission can take is to continue to build links with the employer community and with the other communities, and to fully accept and meet the educational obligations of its mandate. Human rights and the commission will play an increasingly important role in the future. The situation will be further complicated when Bill 79, the employment equity legislation, is proclaimed later this year. We will continue to consult with the government to avoid overlap and duplication. The systems should work harmoniously; they should not compete against each other.
This concludes my formal comments and I'd be pleased to answer any questions the committee may have.
The Chair: Thank you, Mr Howcroft. We start with the Liberals, Mr Curling, and we have six minutes each.
Mr Curling: I just wanted to focus, on page 2, on an accusation you have made here that is very serious, "that a Human Rights Commission investigator or officer is not a neutral arbiter intent on determining the facts and rendering a decision, but rather is an advocate for the complainant who is there to look for evidence that will only support the allegations of the complaint."
Having said that, it seems to me that he cannot do his job effectively, as bringing about human rights and justice to all. In other words, if an individual in a company complains, they take the side of the complainant and they cannot be objective in going in there to bring about a decision. How do you see the commission reforming itself, which is desperately needed, it seems? The government had asked for a report to be done. This is what we call the famous Mary Cornish report, which the minister hasn't had a chance yet, for over a year, even to make any comments on. Do you see the commission reforming itself in order to adjust this inadequacy or this bias that's in it?
Mr Howcroft: I think the commission can do a great deal to address this concern that has been expressed to me by many, many of our members by ensuring that an officer or an investigator goes in and determines the facts, listens to both sides and then renders a decision. That doesn't have to take legislative or major reforms. It can be done through the direction of the chief commissioner.
Mr Curling: Do you feel that the Human Rights Commission should be reporting to a legislative committee? I've asked this question of many presenters here because it's extremely important, as I see it really, that in most human rights cases, as you know, the complainants are really within the public sector, more so than the private sector. If it continues to do that, do you see that as another impediment, as a harm, as not doing its job properly? For instance, if we have a case with the Ministry of Citizenship, that they report to the minister there, do you see in any way that justice can be seen to be done if it proceeds in the relationship it has now?
Mr Howcroft: I think you might have the possible perception in the case you've just cited but I don't think that's the real cause of the problems. It may be a benefit to have the commission report to a legislative committee rather than through the Ministry of Citizenship but I don't think that's the main problem that we face at the Human Rights Commission. I don't think making that one change would really do much to correct it. I think there are other problems within the commission that have to be addressed.
Mr Curling: I don't think it is the only problem, really, but to me it's very important and my party feels that it is extremely important that we should start looking at that independent way in which it carries out its duty.
Do you see it rather conflicting, the way they carry out their role in trying to be all to all people? In other words, as the presenter before talked about, it can be a prosecutor, it can be an educator in all this process, that trying to do all these roles has made it more ineffective and it has not been taken seriously.
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Mr Howcroft: I think there's a lot of validity in that complaint and I think there have to be changes with the way complaints are investigated to address that, yes.
Mr John C. Cleary (Cornwall): According to the organizational chart, the province is broken down into probably seven areas. You say somewhere in here that you provide seminars, like an educational seminar.
Mr Howcroft: To our members, yes.
Mr Cleary: How are those advertised? Are they open to the public or how do they work?
Mr Howcroft: They're open mainly to our members. That's whom we promote them to mainly through our own newsletters, but we also advertise them in some of the human resources and employment equity newsletters and publications. Anyone is welcome as long as there's room. Of course, there's a special benefit to being a member of the CMA and you pay a much-reduced rate.
Mr Cleary: Just for my own information, how many of those would you have in each area per year, or do you know that?
Mr Howcroft: It varies from year to year, depending on the issues. Three years ago we had a lot of Bill 40 seminars and the year before that we had a lot of employment equity seminars. It just depends on the issues and the need of our members.
Mr Cleary: So those are mostly advertised by newsletters.
Mr Howcroft: By newsletters and through certain publications. Plant magazine, for example, carries a lot of what seminars we're holding.
Mr Bradley: There are many in the business community who say that unlike courts of law, where there is a presumption of innocence until proven guilty, in fact their belief is, when they deal with the commission, that they are presumed to be guilty and then must prove their innocence. In your experience and in your discussion with your membership, is this a prevailing view, that in fact they are presumed to be guilty and must prove their innocence?
Mr Howcroft: Well, in some of the comments I hear it's even stronger than that: They're presumed guilty and it's impossible for them to prove their innocence. They find that a decision's already been made and that there's nothing they can do but provide a settlement. That's not every case but that's the overwhelming perception that is conveyed to me. I hear mainly from those who weren't happy with the system, of course, but that's the overwhelming sentiment that I receive.
Mrs Witmer: Thank you very much, Ian, for your presentation. We've certainly received many, many concerns about the commission and it appears that it is failing to respond, again as are so many other commissions and bodies within the government, to the needs that it's expected to respond to today. I was surprised to learn here that it was not fulfilling the educational aspect of its mandate. You indicate here that you understand this is going to be put in place again. Is that right?
Mr Howcroft: No, I understand they placed a moratorium last June or July. I believe they're taking the moratorium off in March or April but I haven't heard definitely that this is to take place.
Mrs Witmer: That is unfortunate, because I think if we're going to do the job, we need to make sure that we do educate all people in the province on the equity issues. So that's just speculation on your part.
Mr Howcroft: No, I was given the date of March back in the summer when I tried to get a speaker from the commission to attend our workshop. I hope that is still the case because I think that is a vital role that they play. You have many people in the employer community who want to know about their human rights obligations, and the commission should be meeting that mandate.
Mrs Witmer: Exactly. Madam Chairperson, I wonder if we could get that information from the commission as to when it is going to once again fulfil that particular part of its mandate, because it is absolutely essential.
Did you hear the other gentleman respond to a question I had about commissions -- Pay Equity Commission, Employment Equity Commission? He suggested that we structure one body and get rid of some of the others. What would your response be to that? Do you think there's some merit?
Mr Howcroft: There may be some merit but I see a lot of problems with that solution. It's been discussed for many years now. Madam Justice Rosalie Abella started a consultation on a labour employment court to deal with many of these issues when she was at the Ontario Law Reform Commission. So it's been discussed many times.
The idea of having a discrete commission to deal with this was to informally handle it expeditiously and have experts who could focus on the issues. That was the intent but it's gone away from that. I think if we refocus back on quickly dealing with the cases, having the experts deal with them, we'd be better served than tying them all together in an enormous employment labour court. But we haven't come up with a discrete position on that.
Mrs Witmer: What about the role of the commissioners who come in from time to time and take a look at some of the cases? Do you have any suggestions as to how that might be handled differently?
Mr Howcroft: Again, I think that the previous speaker gave some excellent suggestions with regard to that. When you have commissioners come in for one or two days a month they don't have the time to really give the cases the analysis that is required. I think changes could be made with regard to having the commissioners restructured.
Mr Daniel Waters (Muskoka-Georgian Bay): Thank you for your presentation. As I listened to your presentation I think I found one thing really different. In so many of the presentations it was basically: "Throw the baby out with the bathwater. Get rid of the commission. Start fresh." What I seem to get out of your presentation is, and correct me if I'm wrong: "Keep the baby. Let's change the bathwater and have it clear so we can see the bottom of the tub and actually get at the job that we're about to, and that's wash the baby."
Mr Howcroft: I think there are a lot of serious problems that have to be dealt with immediately, and that was the focus of our presentation, to come up with some solutions and changes that will address the concerns that our members, the manufacturers, are currently facing. I think there can be a long-term examination of this but we can't wait for the long term.
The Mary Cornish report was released almost a year ago, calling for an equity tribunal, but the government was going ahead at the same time creating an employment equity tribunal while it was having a task force struck to consider if perhaps it should be a merged one. I don't think that solution was the best way to deal with it, so what we're focusing on now is coming up with solutions that will help the problems that currently exist before the commission.
Mr Waters: In my past life I had dealings with the commission and I found it very disturbing because it didn't matter which side you were on. I was sitting as a person in between and I was looking at the individual who had a complaint, where the commission was saying, "Cut a deal, cut a deal, cut a deal; what's it going to cost to get you to leave this alone?" and also looking at the employer, where the commission was saying independently to them, "Cut a deal, cut a deal; this is what it's going to cost you to get out of this." If a person truly has a complaint I don't see how that resolves the problem, and if he doesn't have a complaint it sure doesn't resolve the problem. How do you get away from that?
Mr Howcroft: It becomes an economic decision. I've talked to many employers who felt that the claim was entirely frivolous and they were offered a settlement for a few hundred or a couple of thousand dollars. To defend that action would have cost them in excess of $25,000 or $30,000, so it became, "What's the best way to make this claim go away?" In some cases they go ahead and spend the $30,000 to defend it on a matter of principle, and that shouldn't be. Settlements should be attempted but they shouldn't be at the expense of justice.
Mr Waters: They just pay the price to get rid of it because it's frivolous. But let's say a person has a claim and it's a true claim. That person has an injustice done to him as well because three to five years down the road he might be in a situation where -- just as you said, justice delayed is justice denied.
Mr Howcroft: It's up to the individuals to decide what they're going to accept in a settlement. A lot of times a settlement is not just damages to the individual; it's for the employer or the perpetrator to get involved in educational activities or to redress the situation so that it doesn't happen again. Often that's enclosed within the settlement document.
Mr Waters: I also think I heard you say that we have to try to resolve these things -- not that I want to offend lawyers -- see if we can't resolve them before we line people's pockets with legal fees.
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Mr Howcroft: That was the intent of having these non-judicial bodies to deal with human rights, labour relations, employment standards bodies. But unfortunately a lot of these bodies are becoming more and more complicated and lawyers are used as a matter of course. To have non-lawyers involved is an exception rather than the rule.
Ms Carter: You quite rightly, I think, expressed concern that the commission wasn't carrying out its educational function. I'd just like to read you a little quote and have you comment on it. "The commission has also published two useful and instructive documents. We will be providing the province's public and private secondary schools with a resource book entitled Teaching Human Rights in Ontario. It is my hope that this material will help teachers to feed the optimism of youth and the instinct most young people have for tolerance and social justice. The commission has also produced a policy statement on the subject of sexual harassment and inappropriate gender-related comment and conduct." Did you know that?
Mr Howcroft: I knew they were involved in producing some educational materials, yes. We applaud them for that. That's part of their role. But they have been failing in some aspects of that educational role in not getting involved in public education on an outreach basis, which we think is essential for them.
Ms Carter: As I say, I agree with you, but I think they are beginning to move on that. I certainly think that's a good way to go.
You also touched on ways in which the commission might be improved and I just wondered if you had any further comments on either what your predecessor this afternoon suggested or the suggestions in the Cornish report as to what can most fruitfully be done.
Mr Howcroft: Within the current system, I think the system could be greatly improved if commission staff, investigators and officers were properly trained. Another complaint that I heard was that members of ours who had locations in different areas were getting inconsistent decisions from different offices or inconsistent answers on the same question. I think that comes down to just basically training those people to convey correct and accurate information. A lot can be done to improve the situation by educating those at the front lines.
Ms Carter: It's my understanding, again, that the commission is now embarking on quite a thorough educational and training project, so I believe that is being taken care of.
Mr Howcroft: I hope so. I'm sure they have the intent to do that. We met with Raj Anand several years ago and he expressed those concerns. Catherine Frazee expressed the same concerns. We met last summer with Rosemary Brown to again raise our concerns on some of these issues. I hope they succeed this time.
The Chair: Thank you very much for your appearance and your contribution, Mr Howcroft.
MALCOLM MACKILLOP
The Chair: Our next presenter this afternoon is Mr Malcolm MacKillop from Borden, Elliot, barristers.
Mr Malcolm MacKillop: I'd like to thank the members of the committee for inviting me and giving me the opportunity to present my views before this committee. I think it's a privilege to be able to do that.
So that you understand my background -- I think it's important for what I'm about to say -- I am a management lawyer. I represent employers in unionized environments. In the non-labour relations world, such as the Human Rights Commission, I in fact represent complainants, I represent accused respondents and I represent companies. It has given me a unique experience in really being able to represent all parties.
In addition to that, I think I'm one of the few lawyers in Toronto who actually do a considerable amount of training in human rights, particularly in the areas of sexual harassment, racial discrimination and accommodating people with disabilities in the workplace. That experience, I think, has provided me with some unique insight into how the commission works because I'm able to see how it functions from a complainant's point of view, how it functions from a company's point of view trying to implement polices and how in fact it operates from the point of view of a respondent.
Having said that, I want to make it clear to the members of the committee that I'm not here to be negative with respect to the commission. I think we hear that a lot, and I think it should be made clear that I can comfortably say there are a lot of very devoted people who work in the commission, people who spend many, many hours, who are devoted to improving society, who are devoted to their choice of work in promoting a workplace and a society which is absent any form of discrimination, and I think it's often that we forget about that.
I am not going to try to tell you how to rebuild the commission in 20 minutes. I don't think that's possible. I've looked at the Cornish report like many of you have. I have a lot of criticisms with respect to their authors about that report. I think the reason we're here now is because of the failure of that report to be more specific and more realistic about the changes that can be made.
We are in an economic crisis in this province. If any of us think that we can convince your constituents or the general public that we can spend all kinds of money on trying to restructure the Human Rights Commission, I think there are probably other priorities out there. We can make this commission work more effectively by implementing just a few non-costly items.
What my paper has focused on is the backlog: how to reduce the backlog that currently is in the system and, secondly, how to implement processes or mechanisms which will prevent a backlog in the future.
You'll see in my paper a reference to the Shreve decision, which was a decision of a board of inquiry in March 1993. It was a very interesting case because at the end of the day the board of inquiry felt there was a failure in the process to the respondents in that case because of the unusual delay. They also referred to the officer's workload in that case. They also referred to the failure of the commission officer to disclose the names of witnesses to the respondent. The case was interesting because it indicated some of the problems that are typical in most cases facing the commission.
If you look in the appendix which is attached to the paper, appendix A will give you an indication of the case load which is facing the commission. My understanding is that there have been two task forces which were assembled in order to try to deal with the backlog of cases. One was formed in November 1990 to December 1991 with 10 officers assigned and the second one was formed in December 1991 to December 1992 with 33 officers.
I think the process that was implemented certainly helped to reduce the number of cases. The case load certainly went down. There was an increase in the number of files that were closed. If you look at the year 1990-91, and you go to 1991-92, there is an increase in the number of cases opened by 564. The number of cases that were closed in 1990-91 was 1,763. The following year, 1991-92, there were 3,200 cases that were closed, an increase of 1,437 cases.
If you look at the case load numbers in 1990-91, there were 2,851 cases in the system. In 1991-92 there was a decrease of 660 cases in the system to 2,191. In 1992-93 there is again a decrease of 314 down to 1,877. I think that was the result of the task force that was put in place with the mandate of trying to close as many cases as possible. Their target, the second one, was to close 1,000 cases in a year. They closed 600, but again I think the efforts that were displayed by the members of that force should be complimented. But you'll see in appendix A that the numbers are starting to creep up again. You'll see there's in fact an increase for 1993-94.
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The investigation process, which I have highlighted in the paper, has suggested to you a few ways that the number of cases that are in the system can be reduced. The case management model is one that is used by trial lawyers and been implemented by the Ontario Court of Justice, and the idea is to fast-track certain cases. In fact, many cases can be heard within a period of a year, a year and a half, and we find that the parties involved in those cases are coming to a resolution much quicker and much easier than if their case -- there are normal cases in the system which normally would take up to three to four years to be heard.
The case management model emphasizes non-negotiable time limits for filing responses. I can tell you from my experience that the time frame for filing replies can be endless. You can negotiate extensions for filing replies which are normally required, but the employer or the respondent generally can extend the time for filing a reply for several months without any pressure being felt from the commission.
The case management model also emphasizes the use of conference calls, which is something that the Human Rights Commission could certainly employ in order to get the parties to discuss the merits of their case.
One of the objectives of the case management model is to prioritize the cases in the system. One of the problems that you will notice, if you look at appendix B, which indicates the age of the cases, there are 644 cases that are one to two years of age in the system now. There has to be some focus with respect to which cases are going to be put on that system, and a case management model could, in effect, assist the commission in doing that.
The other process which can be looked at which can assist the commission in dealing with these cases can be found under the Ontario Labour Relations Act, which refers to expedited hearings under section 46. As a labour attorney, I have experience with that section and I can tell you that many of the parties to collective agreements rely on that section in order to expedite cases which they consider to be very important. A similar system allowing both parties, either the respondent or complainant, to apply for an expedited hearing would in fact get a number of these cases out of the system.
The pre-hearing conference is another suggestion which is found in the paper, which is a conference between the parties prior to a hearing. I understand that is occurring now, but it is not mandatory. Under the civil trial rules, the parties have an obligation to summarize their cases, the facts they intend to rely on, the law they intend to rely on and they appear before an impartial third person, a judge, who would not hear the case if the matter proceeds. A pre-trial hearing or a pre-hearing conference in this forum can work. The only thing is, you have to make it compulsory. Currently that is not the case.
The suggestions that you'll see in my paper with respect to preventing the backlog are quite simple. I'm sure that there have been representations made to you with respect to the use of section 34. One of the problems that I think many parties are facing, particularly respondents, is that the officers are not using section 34. The matter currently has to be reviewed by commissioners, and it can be some time -- we're talking six months to a year, even in excess of a year -- before a decision with respect to a preliminary issue which could be raised under section 34 is in fact dealt with by the commissioners.
I suggest to you that there are many cases which on their face are very clear that should be referred to other legislation, another forum, or are beyond the time limits, and there's no reason to assume that the time limits should be extended. Specifically, it is my submission to this committee that there are other legislative forums where some of these complaints can be dealt with, particularly under the pay equity legislation or employment equity legislation. The Ontario Labour Relations Act, as you know from Bill 40, has recently been amended, which will allow for arbitrators to interpret the Ontario Human Rights Code, which is an effective way of dealing with complaints. In my experience, there are many cases that overlap with respect to the nature of the complaint. In fact, I've recently been involved in a situation where there were several grievances filed and also a complaint filed with the Ontario Human Rights Commission dealing with exactly the same facts.
Another suggestion that appears in the paper deals with mediation. I am suggesting to the committee that the commission should divide the mediation service and investigative service into two separate roles. Currently, investigators are charged with the responsibility of mediation or conciliation. Those hearings are far too formal. I have sat through them. They're ineffective. They scare complainants; they scare respondents. Where simply the parties want to get together and have a discussion, you can't do it. It just doesn't happen because you're forced into the rules of what a conciliation meeting has to be or what the rules that have to be followed are in a conciliation meeting.
I think we need to divide up those roles. I think there's an inherent conflict of interest between somebody who does an investigation and then tries to mediate. Moreover, I would suggest to you that if you accept that type of recommendation, people can be trained to do mediation very easily and it's not an expensive process. They can focus on dealing with the cases that come into the system. They will have the authority to settle those cases under section 34 without waiting for approval by commissioners. It could be locally approved by the manager in the office.
In addition to the mediation process that I'm suggesting to you, I'm also recommending that there be specific guidelines for what's called the ESI, the early settlement initiative. One of the problems that I believe exists in the system is that the effort that is put into using the early settlement initiative effectively depends on a number of factors. It depends on the officer who is assigned the file. It depends on that person's workload, if they're busy or if they're not busy. It depends on the nature of the complaint, if they consider it to be serious. If they consider it may be a frivolous complaint but they're just going to put it through anyway, they won't work so hard at it. It depends on the respondent, if the respondent's prepared to talk settlement. It depends on the complainant. If the complainant pushes hard enough, then the officer's likely to push harder to try to deal with early settlement initiative or in fact to skip it and go directly to filing a formal complaint.
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As you know, the early settlement initiative is prior to filing a formal complaint. I have been involved in cases where the respondent has failed to return two or three phone calls and the officer has chosen unilaterally to make it a formal complaint: no more discussion. At that point it's difficult to get the parties back together again because a formal complaint has been filed, certainly the respondent is going to take a more difficult position with it and there's nobody to deal with the complaint. But those decisions are being made by the investigation officer. There seems to be no consistent pattern of how officers are dealing with ESI.
The other suggestion that you'll find in the paper is rationing resources. If you look at how the resources are being rationed throughout the commission, you will see that there is a disproportionate effect that is occurring. The Toronto central office and the Mississauga office are in fact the busiest offices, from my information. The number of staff, if you look in those two offices, is exactly the same as the number of staff you'll find in the other offices, which have in some cases half or one quarter of the number of cases. In Toronto central there are now 400 files. There are seven staff, officers, who are currently working. In Mississauga there are 390 files, with seven staff members. But if you compare that to, for instance, the Hamilton-St Catharines office, there are 125 files but eight staff. In Sudbury, there are 222 files and eight staff.
I think one way of dealing with the backlog of cases is just moving it around. If you can't move the staff from one office to another, you let them take charge of some of the files that may not be directly in the Toronto central area, because all we really care about is not denying anybody justice and giving them the right to file their complaint and having all the parties satisfied that the matter is being dealt with in an efficient manner. It doesn't really matter which office it's being filed with or which person is dealing with the complaint.
One of the other points that have been raised in the paper which I feel strongly about deals with cultural representation. I think if we review the cultural background of many of the officers who are working in these commission offices, you will find it does not reflect the community that they are representing. My submission to the committee is that it is imperative that the offices which represent multicultural communities have officers who represent that community. I think that would be beneficial for two reasons primarily. The first is that it will give more trust in the complainants. When a complainant comes in to deal with an officer, it enhances their trust level if they are dealing with somebody from their cultural experience and their background. Obviously, the language that is spoken would also assist the complainant in clearly communicating their needs and what has happened to them and an understanding of their cultural background. I think members of this committee are familiar with the case of Dr Guereshi, who had applied for a position. In that case, there was a recognition of how important recognizing cultural diversity is and how if we don't understand somebody's cultural background, it may adversely discriminate against them.
The second reason that I suggest that cultural representation is important is that it will enhance the reputation of the commission generally in the public, and the commission in turn should be in a better position to promote its objectives.
Finally, I would suggest to you, with respect to dealing with a backlog of cases, that you consider the recommendation that you go to outside advisers. In the pre-trial conference that I've referred to earlier, the backlog of civil cases was reaching a crisis situation in Ontario. The court decided to request senior counsel in Ontario to sit as pre-trial judges who would voluntarily sit without any charge to the parties or the system, the law society, and hear the merits of the case. The result of that project was that a number of cases that would not have been heard for a long time and would not have been settled were in fact heard and settled. This process, if adopted, could be clearly beneficial to the commission. I believe there are a number of people out there, myself included, who would be glad to assist the parties, to sit as a pre-trial conference adjudicator and to listen to these cases and to recommend to the parties how they should be dealt with. That, contrary to one comment that was made earlier, would not be putting money into the pockets of lawyers. I think that lawyers in the province who are concerned with human rights, as are other advisers in the area, have a responsibility to put something back into the system. I think there are people out there who will do that to help deal with this backlog. Those are my submissions, and thank you very much.
Mrs Witmer: I want to thank you, Mr MacKillop, for just an excellent presentation. I think what I appreciate is the fact that you've concentrated on reforming the commission based on what's already going on. I certainly appreciate that, and you certainly have the insight.
Do you seriously believe that if the outside advisers were brought in as you have just suggested, this backlog could be dealt with quite quickly?
Mr MacKillop: I do. I don't have the statistics for you, but those statistics are easily obtainable from the project that has just concluded with the Ontario Court of Justice. The result was tremendous. You had senior lawyers with experience in civil litigation matters to sit as pre-trial judges, and a number of files were brought to a head and concluded. I think that could be done.
Mrs Witmer: That's good because that's something that could happen without a lot of change.
Mr MacKillop: Appendix A and the comments I've made with respect to when those two task forces were put in place, they had a mandate of closing 1,000 files. They in fact closed 600. That in itself is an indication that it works if you have people to do it. Now, they gave the commission half of its budget, again on top of its budget, to do that. I'm suggesting perhaps there's a way of getting the same results without the money.
Mrs Witmer: Going back to another point you made, you mentioned the fact there were other legislative forums for dealing with, for example, pay equity. We know we have the workers' comp. Do you have any idea at all yourself as to how many of those complaints from different bodies end up going through the Human Rights Commission at all? Have you ever seen those statistics?
Mr MacKillop: I haven't seen those statistics and I think it would be very hard to track. I think it would be very difficult. But I think there's a recognition among practitioners that there is a tremendous overlap in the systems that are out there. There's a lot of overlap between those systems. There's certainly an overlap between the collective agreement arbitration process and the human rights process.
I'm not sure in the collective agreement forum or labour relations forum whether or not we will see less reliance on the Ontario Human Rights Commission now that arbitrators have a specific authority to deal with the legislation, but there's a tremendous amount of overlap. I think it would be hard to trace because it just depends how it's framed.
Mrs Witmer: That's right, and then of course as the last appeal, we have people trying to go to the Ombudsman as well.
Mr MacKillop: That's an interesting point because I've had a number of cases where the case was actually given priority based on a complainant going to an Ombudsman complaining about the commission. It's ridiculous. I'm telling you, it happens. I've had several cases. These are people in the commission office who are doing the best they can, but they seem to get it from all angles. They really do. They don't know where to turn. It just seems like the complainants a lot of times have that way: If they're not happy, they'll go to their MPP or they'll go to the Ombudsman.
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Ms Carter: I'm interested to see that you do think we can reform the existing commission and not have to take it apart or reform it or throw the baby out with the bath water, or whatever's been suggested.
We of course heard from Rosemary Brown, and she told us about some new initiatives that are coming up within the commission. She talked about reform from the inside out and was hoping that a lot could be achieved that way.
One suggestion was that "the agency is now organized into four new branches: a regional services and systemic investigation branch...to make the best use of the commission's enforcement resources; a public policy and public education branch...to provide the people of Ontario with clear and accessible expertise in human rights principles; a new legal services branch to house the office of reconsideration, preserving its ability to audit the work of officers in the regional services and systemic investigation branch"; and a corporate services branch which "will act as a catalyst for change at the commission, leading its efforts to become a model employer and ensuring excellence in customer service." Do you see that as going some of the way towards achieving what you would like to see?
Mr MacKillop: With all respect to Ms Brown, I'm result-oriented. I think we have a problem with the backlog in cases that are there now, and there are a lot of people who are being denied due process: complainants, respondents. That sounds wonderful, but I want to see results. The problem is that we had the Cornish report, and complainants and respondents are still waiting to see it work better. The suggestions I have put forth to the committee certainly represent an easy way that doesn't cost a lot of money to deal with the problems.
As a practitioner in the area, the fundamental problem I see is the backlog of cases. Once you get that dealt with, you can move on to try to better meet the objectives that the commission has with respect to public education and a number of things.
I can tell you about the public education, though, that a lot of employers are being counselled that they don't want the commission in the four corners of their establishment. So it doesn't strike me that there's going to be a lot of people running out there after public education, having people to come in and train.
The one comment I would make, though, is that my experience with the commission is that the officers I've had the experience with are more than willing to go out there and train with you. I've done it. I've done training with an officer and it's been very effective, but I think we have to keep our focus on dealing with the cases that are in the system and how we get rid of them.
The Chair: Mr Curling.
Mr Bradley: He's yielded it to me to start here.
I wanted to comment favourably upon your suggestion that the investigative and the mediation segments be separated. I've seen the same experience in the Ministry of the Environment, where you used to have the abatement people and the investigation people being the same people, and that is not possible, in my view. So I want to commend you on that suggestion. I think there are two distinct roles and it's impossible to play both roles.
My second question is, we've had a previous witness suggest that perhaps in some cases, to get out of an embarrassing public situation, people had paid off people. Some people use the words "hush money." In your experience, how often does this happen in relation to the commission that people, simply to avoid bad publicity, just pay off the complainant?
Mr MacKillop: I've done a lot of training in sexual harassment. I probably have done more training than any lawyer in this province since Anita Hill in 1991, and I can tell you that if there is a complaint against you in sexual harassment, in most cases you'd want it to go away real quick, with all respect, and I think that probably happens a lot in that area.
When you're talking about a case of racial discrimination, I think again companies don't want to be seen as discriminating against a certain population in their workforce. Other cases, I don't think it happens too much. The areas of sexual harassment and racial discrimination are the ones that tend to draw more attention to a company and the individual. In the commission there is a strong emphasis on trying to resolve the cases, and they want to cut a deal. Although there's a right of reinstatement, most complainants don't want reinstatement. They want money, and they want to cut the deal and move. So it happens a lot.
When you're advising an employer with respect to defending a case which may not be heard until three or four years from now, you're saying: "Let's talk settlement, because this is going to drag on for three or four years and it could be embarrassing to you. People will forget about your defence, and are witnesses going to be around?" There are a number of factors that go into considering a settlement, but in cases involving sexual harassment or racial discrimination, they are more likely to be cases where money is exchanged in order to resolve the dispute.
Mr Bradley: In terms of employment situations then, do you think, with this in mind, that this in the long run tends to make it more difficult for people who haven't been adequately represented in the workforce to be adequately represented in the workforce, the fear that somebody's going to have to deal with a human rights case, whereas they might not have to deal with a human rights case if they were not dealing with a person who has been underrepresented in the workforce previously? In other words, if they want to hire me, the chances of a case being brought before the Human Rights Commission by me is much less than it is by someone else, by Alvin.
Mr MacKillop: Is the question, are employers deciding who they hire based on their race because they're scared of increasing the number of complaints?
Mr Bradley: Yes.
Mr MacKillop: I'd be scared to answer that question, because I don't know that answer.
Mr Bradley: That's fair.
Mr MacKillop: It could be one of the consequences that flows, but it would be very difficult to think that employers would start that process of hiring based on being scared of complaints.
Mr Bradley: One would hope not.
Mr MacKillop: One would hope not, and I think employment equity is certainly designed to deal with some of those issues.
Mr Curling: It's not proclaimed yet.
The Chair: Thank you, Mr MacKillop. The committee appreciates your time and your contribution by being here today.
Mr MacKillop: Again, thank you very much. It was a privilege to appear before your committee.
The Chair: We just have one item of business, committee members, with regard to the appointments that we will be dealing with next Tuesday and Wednesday, the 15th and the 16th.
There was a selection that the subcommittee made that was approved by all of the committee in the name of Kristine Connidis. She is an intended appointee as a member of the Ontario Criminal Code Review Board. At this time Ms Connidis is unable to attend, as she's out of the country. In fact, she's in Switzerland studying at the Jung institute, south of Zurich, until the end of February. So we need direction from the committee as to whether you would just like her appointment to go ahead. The other opportunity would be to have her reviewed when the House resumes sitting. This was a selection by the government members, so I'm looking to the government members.
Mr Waters: I'd just move that we let the appointment go ahead at this point in time.
The Chair: Any discussion on that? All right. There's unanimous agreement that the appointment go ahead.
I would like to remind you that tomorrow our sitting starts at 2:30 in the afternoon, and we have the pleasure tomorrow afternoon of having the newly appointed Employment Equity Commissioner, Ms Juanita Westmoreland-Traoré. We look forward to that presentation and your participation tomorrow afternoon at 2:30. The committee stands adjourned.
The committee adjourned at 1638.