Assemblée législative de l'Ontario

SUBCOMMITTEE REPORT

DRAFT REPORT ONTARIO HUMAN RIGHTS COMMISSION

CONTENTS

Wednesday 1 June 1994

Subcommittee report

Draft report: Ontario Human Rights Commission

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)

Malkowski, Gary (York East/-Est ND)

Mammoliti, George (Yorkview 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 Malkowski

Tilson, David (Dufferin-Peel PC) for Mrs Witmer

Wilson, Gary, (Kingston and The Islands/Kingston et Les Iles ND) for Mr Waters

Clerk / Greffière: Mellor, Lynn

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

The committee met at 1013 in room 228.

SUBCOMMITTEE REPORT

The Chair (Mrs Margaret Marland): Good morning. The first item on our agenda is the report of the subcommittee dated May 18 where, as you will see, there have been selections made for reviewing intended appointees. Are there any questions on the report of the subcommittee? If not, would someone like to move approval?

Ms Margaret H. Harrington (Niagara Falls): I so move.

The Chair: Mrs Harrington moves the adoption of the report of the subcommittee.

All in favour? That is approved.

DRAFT REPORT ONTARIO HUMAN RIGHTS COMMISSION

The Chair: The next item is the revised draft report on the Ontario Human Rights Commission.

Ms Jenny Carter (Peterborough): We're just carrying on with our review of the document. I seem to remember that last time we had just dealt with the first of the four recommendations at the end of the report, which was response to the Cornish commission, so logically we should proceed to the other three recommendations.

The Chair: Mr Pond is going to take us through it.

Mr David Pond: Ms Carter's referring to page 26. From there to the end, I summarize the proposed recommendations that have emerged from past meetings of the committee. The only one the committee has formally approved thus far is at the top of page 27, and it appears in shaded ink, which is recommendation 2. As you'll recall, at the last meeting there was an extensive debate on the proposed recommendation 1, on page 26, and then on number 2, which was formally approved. That was about as far as the committee got.

Mr Alvin Curling (Scarborough North): Have we dealt with recommendation 1, the Cornish report? We haven't dealt with that.

Ms Carter: I believe we did.

The Chair: I think every committee member received a copy of the report from the Ombudsman to the Ombudsman committee. Yes? So you've seen that. Mr Curling, you have been attending those meetings, haven't you? There were two meetings the Ombudsman herself attended, right?

Mr Curling: I wasn't there when she herself made her presentation, but I was there before.

But coming back to the Cornish report, are we saying we have dealt with that? In what capacity? In other words, what have we agreed on? We felt at the time this report was drafted, "The government of Ontario should formally respond to the Cornish report."

Ms Carter: Yes.

Mr Curling: And what did you say?

Ms Carter: That it should indeed respond to the Cornish report. But I'd like to add to that that the submission and comments made by the minister, which in fact she did not get to read into the record at the committee, should be included in the final report.

Mr Curling: No, she didn't have it in the report. How can you now submit it in the report? You said she didn't get an opportunity to read it in at the committee meeting, and you say you're going to submit it now because she didn't get an opportunity to do so?

Ms Carter: That it should be included in the report.

Ms Harrington: As an addendum.

Ms Carter: These comments do include a number of remarks on the Cornish task force, which would then be in the report.

Mr Pond: We have a copy of the statements. All the members got that, so it's already typed and so on, if you want to include it as an appendix.

Ms Harrington: I would recommend it as an addendum at the end.

Mr Pond: As an addendum to the report?

Ms Harrington: Yes.

The Chair: Recommendation 1 doesn't say to whom the government should respond. Do you want that statement to stand as it does? It doesn't really give very much direction, does it? If you're making a recommendation that "the government of Ontario should formally respond to the Cornish report," what is it that we are saying as a committee? Are we saying we'd like them to respond to the recommendations of the Cornish report or act on the recommendations of the Cornish report? I think it has to say more than it says here. Reading this committee's report, I'd read that recommendation and say, "What is that saying?"

Ms Carter: It's just that a formal response is needed, not that it necessarily agrees or doesn't agree with the Cornish report.

The Chair: But to whom would the response go, and do you want it in a certain time frame?

Ms Carter: I would imagine to the committee.

Mr Curling: The Cornish report was submitted to the minister, and some recommendations were made in that Cornish report. I'm just wondering if the report shouldn't reflect that the minister should respond to the recommendations in the Cornish report. We said "formally respond to the Cornish report." I don't know what "formally" really means, what it meant when we said that. The Cornish report made some recommendations. Does she agree with it or not? Is she looking into it?

Ms Carter: I think the answer to that is complex. Some of the recommendations of the report which don't involve legislation have already been implemented, but some of the major suggestions will not be acted upon because the ministry feels that changes at the Human Rights Commission need to be evolutionary rather than sudden changes such as you're suggesting.

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Mr Curling: Wonderful. You agree with me then, really, to say the minister can respond formally to the Cornish report. It will be much easier for her to do so because, as you said, they've already acted upon some of the recommendations. The minister should respond formally to the Cornish report about where action has been taken, where action will not be taken on these recommendations. They're hanging there. Although she's acted upon some, she's really not acting upon the Cornish report; she's acted upon some initiatives she has that somehow reflect some of the recommendations.

Ms Harrington: What I'm hearing is that we need a formal response and a public response to each of the recommendations of the Cornish report.

Ms Carter: Yes, which is what is said here and what we agreed.

Ms Harrington: That's what we mean here.

The Chair: May I ask you, because as Chair I don't want to lead you, since you are the committee that has reviewed this agency and the Cornish report has been part of your review, would you like that response to come to this committee from the minister? You, on the one hand, have reviewed the Cornish report, and your question now is that you'd like the government response, but in order for you to have that, would it not make sense for the minister to report back to this committee?

Ms Carter: I don't see why not.

Mr Curling: I just want to make clear that Mary Cornish has never gotten a formal response to her report, so I presume she could get a response to the recommendations made in that report.

The Chair: I don't think it's within our purview to deal with whether or not Ms Cornish received a response from the government, because the government commissioned her to do the study. I think what is for you to give is the direction about the work of this committee, and in order to have the work of this committee completed you need to know what the government's going to do with the Cornish report. You would achieve that by having the minister report back to this committee. So this needs to be reworded. Have you any suggestions how you might reword it, Mr Pond?

Mr Pond: "The minister should formally submit a response to the committee," something along that line. I'll obviously have to come back to you anyway.

Mr Curling: Could you mention in there whether the recommendations are being acted upon or not?

The Chair: I don't think it should be "should." It would be, "The government of Ontario, through the minister, shall formally respond to this committee on the recommendations of the Cornish report." And would you like it in writing? Is that what you're suggesting?

Ms Carter: Sure.

Mr Pond: And as agreed, we will attach the minister's speaking notes, and I'll put in a reference to that ahead of this recommendation so it makes sense to the reader.

Ms Harrington: Have we clarified recommendation 1 to everyone's satisfaction?

The Chair: It'll come back finalized to be approved anyway.

Mr Pond: Yes, you'll see everything at least one more time, I would think.

Recommendation 2 was already dealt with, as Ms Carter mentioned a minute ago.

Recommendation 3, at the top of page 28: When Ms Brown appeared before the standing committee on the Ombudsman in May this issue came up. Also, you should have in front of you the document submitted by the commission, Commission Response to Recommendations Made to the Standing Committee on Government Agencies, April 25, 1994, as part of your package. Number 3 on the bottom of page 2 of that document responds to this recommendation.

You'll note when you read through it that the commission is really responding to the notion that the staffing of the commission should represent the cultural diversity of the province. Only in the last sentence on the top of page 3, "The principle of diversity is also utilized in the appointment of commissioners," does the commission respond to this particular recommendation.

Mr Curling: Can I just back up a bit on the employment equity stuff at recommendation 2? This is just a note of an issue that was raised about employment equity.

Is it correct to say in this that "once the Employment Equity Commission is established, many human rights complaints currently filed with the Ontario Human Rights Commission will in future be submitted to the Employment Equity Commission"? I tried to get a clarification out of whoever came before us, but the minister didn't tell me, or even the Employment Equity Commissioner, that that would be the case. Right now there is a systemic discrimination section or division or whatever within the Human Rights Commission, but the Employment Equity Commission is really dealing with systemic discrimination in employment. Is it a fact that cases will just be transferred?

I gather that when someone brings a complaint before the Human Rights Commission, they still deal with it. Some of it may be systemic, but the individual coming to that process doesn't know if the complaint is systemic or endemic; they just know they have been shafted because of their colour or their sex or something that individually affects them. What I'm hearing here is that those cases would just be transferred to the Employment Equity Commission. Is that so?

The Chair: I'm looking to the government members, because that's not an answer Mr Pond can give you. If that question wasn't asked when they were before the committee, unless the government members are -- none of you are PAs in that ministry, are you?

Ms Carter: I'm in Citizenship.

The Chair: You are, Jenny. I'm sorry. Then maybe you can answer Alvin's question.

Mr Curling: That question was asked quite often.

Ms Carter: I'm just a bit puzzled as to where we are. We're looking at section 3, are we?

The Chair: Mr Curling is back at the bottom of page 26, asking another question. At the bottom of page 26 it says: "The committee expects that once the Employment Equity Commission is established, many human rights complaints currently filed with the Ontario Human Rights Commission will in the future be submitted to the Employment Equity Commission. This should help to relieve the Ontario Human Rights Commission's workload." Mr Curling is asking is that so?

Ms Carter: I guess the answer is yes, that the commission will look at whatever complaint comes to it, and if it seems to be something that is more rationally dealt with by some other body, they will ask that it be transferred.

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Mr Curling: We didn't get that clarified. Where Mr Pond could help us -- not right now -- is to look back at some of those comments in some of the interviews that were done. People said: "I really don't know if my case is systemic discrimination. All I know is that they threw me out of my job because I am black, or because I'm short," or whatever. Do they go through the process of the Human Rights Commission and then have them say, after two or three years with all this backlog they have, "Oh, it's systemic discrimination, and that is handled through the Employment Equity Commission, because they handle systemic discrimination"? I ask, what about the three years they've been waiting for justice to be done?

Ms Carter: I don't think that would happen. I think they will screen people at the outset and say --

Mr Curling: They're backlogged now.

Ms Carter: Well, there are reforms under way. I believe this was mentioned in Rosemary Brown's speech -- I would have to check that, but I think so -- that this is one way by which they're reducing the backlog.

But I should also mention that Bill 79, the Employment Equity Act, deals with the relationship between the Ontario Human Rights Commission and employment equity. So that is set out in that act.

Mr Curling: But the problem we have with this is that the regulations would tell us step by step how it would be done. We don't really have the regulations to do that.

For us to make a statement that "once the Employment Equity Commission is established, many human rights complaints currently filed with the Ontario Human Rights Commission will in future be submitted to the Employment Equity Commission" -- say I'm on the Human Rights Commission and there is something sitting on my desk. I'm going to pass it over now to the Employment Equity Commission. Is that how it's going to work: just pass it over?

Ms Carter: As I say, this is written into Bill 79, so this is legislation.

Mr Curling: No, it's not written in there. We asked for the process, and they said it's in the regulation.

Mr Pond: As Ms Carter mentioned, what Bill 79 does is lay out that in the future, if you have a complaint of this nature, you don't appeal to the Human Rights Commission; you take it over to employment equity. That is the intent, that the flow will be diverted. Whether a witness specifically said that to us, I'd have to check the transcript. I know what you're saying.

Mr Curling: That's the point I'm making. When an individual is being subjected to discrimination, they don't see it as systemic. They just see that, "I've been discriminated against," and their own psyche tells them, or the process tells them, to go to the Human Rights Commission. It is for the bureaucracy to sort out their little stream of where it should go. I'm saying it was not plain in the bill that this one, with that kind of dressing, goes to the Employment Equity Commission. That's the confusion we had: whether it's a pay equity problem, a human rights problem or an employment equity problem.

Ms Carter: But hopefully, if the complainant makes a mistake, they will be very quickly redirected, because that is clear in the legislation.

Mr Pond: To be fair to Ms Brown, she did point out -- and she wasn't the only witness -- that under section 34(1)(a) of the Human Rights Code, the commission has the power to decide that a complaint filed with it should be dealt with more appropriately under another act and under another body's jurisdiction, and that it is exercising that power much more rigorously in the present than it did in the past, resulting in the diversion of more cases away from its own workload to other bodies, whether it's the Employment Equity Commission in the future or the Ombudsman's office or the Pay Equity Commission and so on. To be fair to Ms Brown, she did put that on the record, and when she appeared before the standing committee on the Ombudsman, she made that point.

Mr Curling: Well, I won't beat this any more, but I'm telling you that I'm not yet convinced that the process is laid out, that we feel these things will go straight to the Employment Equity Commission.

Ms Carter: Hopefully, it will be clear enough that the person will know that --

Mr Curling: No, because right now the Ontario Human Rights Commission has a systemic division, and I think it maybe handled only about three cases. If you tell me there's a big backlog at the Human Rights Commission and we'll be moving over to the Employment Equity Commission, then I want to know where all these cases are. What is she going to transfer over, all these complaints, when the Human Rights Commission has only handled maybe three or four cases which are systemic discrimination and the Employment Equity Commission is set up for that? Are we just going to move them across?

I'm not going to beat it any more. I'm just saying I'm not comfortable with the fact that this just states that things that normally would go to the Human Rights Commission will now transfer over to the Employment Equity Commission.

Mr David Tilson (Dufferin-Peel): I think it's a legitimate question and I wouldn't let it rest. Obviously, if you're on the Human Rights Commission and here's a pile of applications or a pile of issues and you say, "This is for the Employment Equity Commission, so we'll just put them over here and they'll have their regulations perhaps a year from now," or whenever they're going to be together, meanwhile, these applications that have been waiting for gosh knows how long are then going to be put in this pile over here waiting for the Employment Equity Commission to get its act together.

As I understand what Mr Curling is saying, what's going to happen to all those applications that have already been waiting for gosh knows how long? I think it's a legitimate question and the government should legitimately respond to that.

Mr Pond: Without commenting on what you've said, as you know, the normal practice when new legislation is passed, in the regulations, which Mr Curling will point out haven't been released yet, the usual practice is for the regulations to state that such-and-such piece of new legislation will go into effect on such-and-such date and all cases filed before that date will continue to be addressed by the previous body and all complaints or applications filed after a certain date will be dealt with by the succeeding body. That's how rent control has worked in Ontario in the last three or four years, and I rather suspect that's probably what's going to happen under the regulations under Bill 79. It's the standard practice.

Mr Tilson: In other words, you're saying that the pile of applications that normally would go to the Employment Equity Commission is going to stay with the Human Rights Commission, which is bogged down? Is that what you're telling us?

Mr Pond: Yes.

Mr Curling: That's right, until they get their act together with the regulations.

Ms Harrington: Madam Chair, on a point of where we're at and where we're going: Is it correct to say, Mr Curling, that you are not happy with this sentence on the top of page 27? Are you trying to change that?

Mr Curling: Yes. I'm just talking about the writing of the report. I said we did not get an answer; I didn't hear that all of those things that are there will be then transferred to the Employment Equity Commission.

Ms Harrington: Let me just clarify. You are not happy with that sentence; you want it changed?

Mr Curling: Yes.

Mr Tilson: That sentence is slightly misleading.

Mr Curling: Yes. It's the conclusiveness.

Ms Harrington: Madam Chair, I guess I need some direction. If you could help Mr Curling.

The Chair: I think there are two things here. That paragraph at the bottom of page 26 that begins with "The committee expects" is making an assumption. As the Chair, I'm not going to say whether that's an assumption that you want to make or, if you want to make it, whether it's stated clearly enough. Then, when you actually go on to the recommendation, the recommendation itself is a bit contradictory. "The government of Ontario should implement the Employment Equity Act...." Obviously, if there's an act passed by the government, it's going to implement it, but we're saying "...as soon as possible." Can I ask, Ms Carter, has the Employment Equity Act been proclaimed yet? The last time I asked it hadn't been proclaimed.

Ms Carter: No, but I don't think the time line is going to be very long.

The Chair: Maybe the committee is interested in the fact that that act proceeded through the House with time allocation, a closure motion. It was rushed through the House prior to Christmas, and now we're into June and it still hasn't been proclaimed. If the committee is looking at the Employment Equity Commission as being a help to the problems that have accumulated at the Ontario Human Rights Commission, maybe what you want to be saying is something stronger than what is written here under recommendation 2. I think telling the government that it should implement the act and its regulations "as soon as possible" is kind of a wishy-washy statement.

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Ms Harrington: I thought we had approved recommendation number 2. When I came in I checked on that and I thought we had already dealt with that. Now Mr Curling is going back, not to that particular recommendation, but to the wording at the bottom of page 26 and top of page 27. I thought we were trying to change that sentence, and now you're looking at something broader.

The Chair: To clarify where we are, this is a draft report and you can all discuss it wherever you want, because it's going to come back again.

Mr Curling: I'm not going back, though, Madam Chair. This is recommendation 2, and "This should help to relieve the Ontario Human Rights Commission's workload" is a conclusion based on recommendation 2 that "The government of Ontario should implement the Employment Equity Act and its regulations as soon as possible."

How can you say that? You're saying that if it walks like a duck, it must be a duck. I'm saying that it's walking like a duck and it ain't a duck. It's saying that all these cases in the Human Rights Commission will be transferred to this great commission that will be established with a working situation called regulations. If it comes into place it will be great, but it is six months now, and whatever it is, the pilot's sitting there still, so we can't conclude that it will relieve it. When?

The Chair: Okay. Then put the wording you would like it to say on the floor and let the committee decide if it agrees with you.

Mr Curling: I must put the wording about this?

The Chair: If you are concerned by the premise that starts in the sentence "The committee expects," if you don't think that is an expectation of the committee, say what it is you'd like it to say. You don't have to write it, just say verbally what you think you'd like it to say, and see if the committee agrees with you. Then Mr Pond can word it accordingly.

Mr Tilson: I arrived at the conclusion of this interesting debate, but are we satisfied from the hearings and from the debate that point 2 is even legitimate? Will the problems with respect to the Human Rights Commission be relieved by the Employment Equity Commission? Are we satisfied that the problems that exist with the Human Rights Commission will be alleviated somewhat by the Employment Equity Commission?

Ms Harrington: We can all speculate from our own political points of view as to what will happen. The question is, does this committee want to make the connection between these two agencies?

Ms Carter: Which I should have thought was a very logical thing to do. I think what Mr Tilson and Mr Curling are saying is very hypothetical. The whole thing is somewhat hypothetical.

Ms Harrington: Well, it is hypothetical, because it's the future. We don't have a crystal ball here.

Mr Tilson: Ah, yes, the future.

The Chair: As a matter of fact, I was sitting here thinking there's something wrong with the process. When a committee selects an agency to review, it's because it's important to the committee and the committee makes a decision to review a government agency. Most often those in-depth reviews, as we know, take place when the House is not in session because we do it in four or five meetings, sometimes two weeks, in terms of time.

This review took place in February, I think, and here we are finalizing the report in June. Some of the members of the committee who sat on the review during the recess when the questions were asked of the deputations, which included representation from OHRC, and the Employment Equity Commissioner was here too, are not here while we're now writing the report. Writing the report is the most important part of our work as a committee, and yet we're trying to write the report with not everyone here who was here for those interviews.

The point is that these things were discussed during the review. All the points that are being made by all of you were discussed during that review, and I think that when you're drafting the report, if there's some question about what was said, then we need Mr Pond to give you that reference in the Hansard from those hearings.

Mr Mike Cooper (Kitchener-Wilmot): During the public hearings, when we heard from the human rights commissioner and the Employment Equity Commissioner -- and I also sit on the Ombudsman committee, which is also doing a review of the backlog in the Human Rights Commission -- the expectation is that once we've got this commission set up, the potential to relieve the backlog is there. One of the concerns that was raised during the questioning was that right now the way it stands is that people will go to the WCB for an appeal, the Human Rights Commission for an appeal, the Ombudsman for an appeal. What was raised was that quite possibly now they'll have four appeals in because they'll add another one on to this commission.

But the expectation is there that this will relieve some of the backlog, so the flow of this whole paragraph is right. Yes, if the regulations were complete and we had everything set up and the Employment Equity Act was proclaimed, I think it could be quite reasonable that we would expect that this would relieve the backlog. So I would say this whole paragraph flows quite properly.

Mr Tilson: I'm one of those who hasn't attended the hearings, Madam Chair, but I will say that we hopefully don't deal in these committees with looking into some sort of crystal ball. We rely on facts about whether a system is going to be improved.

I assume there are facts that have been put forward at the hearings indicating what percentage of applications before the Human Rights Commission have specifically dealt with problems on matters that normally would go under the jurisdiction of the Employment Equity Commission, and if those facts don't exist, I don't see how we can support people philosophizing and saying, "Oh, everything's going to be okay," because everything may not be okay. I love the expression Mr Curling used about ducks; that says it all. Just because you say it, it isn't going to be the case. Unless you have facts, then it shouldn't be in here. We shouldn't be philosophizing. We shouldn't be dreaming and saying, "I hope everything's going to be okay."

Ms Harrington: I think you're leading us in the right direction, Madam Chair. No, not leading -- helping us out. Mr Pond is reflecting the discussion that did happen several months ago, and the wording here says "the committee expects." That's all we can do: expect.

There has been a fair amount of discussion on this, and I think at this point either we try to change the wording slightly, or it seems to me that this sentence does reflect, through Mr Pond, what the discussion was, so I'd be happy enough to leave it the way it is.

The Chair: Okay. I'm looking for a recommendation that we either change the wording or defer it. If there was some concern about the wording, I thought we should either get new wording, and that's what we will discuss now, or we can defer this until we ask Mr Pond to research the statements of fact that were made by the two people, the Ontario Human Rights Chief Commissioner, Rosemary Brown, and the Ontario Employment Equity Commissioner, Miss Westmoreland-Traoré. So what is the wish of the committee?

Ms Carter: I suggest we leave the wording as it is and that we conclude the matter today. I can't see what would be gained by researching into this. I just point out that the Employment Equity Commission and the Human Rights Commission are in fact going to be working quite closely together --

Mr Tilson: I hope not.

Ms Carter: -- so I can see that this expectation is realistic, that they will cooperate in an effective manner in the allocation of who does what.

Mr Curling: I don't think my wording's going to be perfect, but I feel the committee could be comfortable with things like, "The committee expects that the Employment Equity Commission be established as soon as possible," or "the urgency that it be established is imperative," or something like that. But I don't want us to jump to the conclusion, because we don't know -- we're making a conclusion that a regulation will work.

Ms Harrington: We're not concluding. The word is "expects."

Mr Curling: Of course you are. You said, "This should help to relieve the Ontario Human Rights Commission workload." That's a conclusion.

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Ms Harrington: It should if the expectation takes place.

Mr Curling: It's a conclusion. We don't know.

Ms Carter: The future's never certain, Alvin. There's nothing we can do to make the future certain.

Mr Curling: No, but we don't know, because we don't have the regulations. As a matter of fact, it would have been very helpful, writing the report right now, for you all, because it is June, and that is six months after the legislation has been passed. The regulations are still pretty late.

Ms Harrington: I don't want it to be six months since we started this investigation that we have our report come out.

Mr Curling: You won't have the regulations. You haven't had six months here yet.

The Chair: Do you want to delete the last sentence of that paragraph?

Ms Harrington: We could leave it out if you wish.

The Chair: That's what I'm saying. Do you want to delete, "This should help to relieve the Ontario Human Rights Commission workload"? Is that what you want to do?

Mr Curling: As a matter of fact, take it out. The employment equity presentation was not helpful at all --

The Chair: No, I'm just asking about the last sentence of the paragraph and I'm looking for agreement. Do you want to take out, "This should help to relieve the Ontario Human Rights Commission workload"?

Mr Tilson: Agreed.

The Chair: Okay. Is there agreement that that short sentence be deleted?

Mr Curling: I can live with that.

The Chair: If there isn't agreement, then we should have it in a motion.

Ms Harrington: No problem.

The Chair: Okay, there's an agreement; we'll delete that. Now, does recommendation 2 say what you want it to say, or is it a redundant recommendation?

Ms Carter: It think it's desirable.

The Chair: Okay. So there's an agreement with recommendation 2. We're doing this again, I realize, but is there approval of, "The government of Ontario should implement the Employment Equity Act and its regulations as soon as possible"? All in favour of that? Against, if any? We have three people voted on it out of seven here. Was there any dissenting opinion on number 2?

Mr Curling: I'm a dissenting opinion, because I'm telling you that, while I take that part off, I'm not very happy with what the flow was. You are the government: one, two three, four, five. You all vote for it; why don't you do that? Five of you there.

The Chair: All in favour of recommendation 2 as printed on page 27? Thank you. That's carried.

We can continue with recommendation 3.

Mr Pond: The preamble to recommendation 3 is on page 27 and the recommendation's on the top. As I mentioned earlier, in the response to the draft that the commission submitted to the committee, which you have a copy of, at the bottom of page 2 and the top of page 3 the commission lightly touches on this recommendation. As I quoted earlier, "The principle of diversity is also utilized in the appointment of commissioners."

Having said that, I should point out in all honesty that if you read the preamble to this at the bottom of page 27, this particular recommendation came out of the concern that the commission should reflect all of the interests that are affected by commission decisions. The member who put this forward was thinking specifically of employers. I think it's probably fair to say that the commission's response to the draft recommendations was more in terms of cultural diversity.

Mr Tilson: I'm interested in the statement, "If the public believes that the composition of the commission is weighted in favour of complainants or respondents, its credibility will suffer." You look at the principles of employment equity, and is this paragraph contradicting the principles of the bill? I think it is. I think that this statement in this report contradicts the principles of employment equity in Bill 79, or whatever the bill was. I think it is weighting it in a different direction.

I don't know if anybody heard over there, but that's my observation. If nobody cares, I guess that's the way life goes. But I have a lot of problems with the wording of this because I think it contradicts the bill. I don't know where the wording came from, but that isn't what Bill 79 says about how you hire people, the philosophy of employment equity. In fact, it may even be suggested as being discriminatory, one way or the other.

Ms Carter: I think I see what you're saying, Mr Tilson, but I think this is a very special body in this respect, the Human Rights Commission.

Mr Tilson: Nobody's special; we're all equal.

Ms Carter: You have to look at the requirements of the specific job. I think that was one of the conclusions that we came to in the hearings on employment equity. For most jobs, the job description is something that can normally be done, say, by a man or a woman or an indigenous person and so on, and I think there is a requirement in the actual job here that diversity be recognized. That's my own reading of it.

Mr Tilson: I have no problem with that, but that isn't what this section says. That isn't what this report says. What you said hopefully reflects what the bill says, but that isn't what this says. This says --

Ms Carter: "That the appointees adequately reflect the diversity of Ontario society." To me, that is a legitimate requirement for this.

Mr Tilson: If you read what is here and what you just said, they don't say the same thing.

Ms Carter: No.

The Chair: In this case, this paragraph is referring only to the makeup of the commission, and it's suggesting that, as Mr Pond has written, for example, currently only one of the 10 commissioners represents employers, though employers are often the respondents named in complaints filed with the commission. So what this is saying is that there was a concern expressed that perhaps the commission, as currently appointed, does not represent a cross-section of the people who are involved in human rights complaints.

So the recommendation, then, says, "The government should review how it appoints members to the Ontario Human Rights Commission, in order to ensure that appointees adequately reflect the diversity of Ontario society." Maybe what you want that to say is more to reflect those people who need to work with the Ontario Human Rights Commission.

Mr Tilson: Madam Chair, I agree with what you're saying. I guess my question really is, with respect to the membership of the commission, should the philosophy as to how the commission is formed as to who sits on the commission be different than what Bill 79 is saying? I get the impression that it is not.

The Chair: But the thing is that in this report we are dealing only with the OHRC.

Mr Tilson: Employment equity applies everywhere in this province. It applies to commissions. It applies to the makeup, believe it or not, of the Human Rights Commission.

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The Chair: Yes, but in this particular paragraph maybe what you might want to say is, "in order to ensure that appointees adequately reflect the diversity of Ontario society" -- I think maybe "society" is the wrong word -- "and those people who, by necessity, come before the commission," which would then give you employers and employees. Bear in mind, of course, that not everyone who goes to the OHRC is an employer or an employee. It isn't always through employment practices that people grieve before the OHRC, is it?

Mr Curling: There are two points here. One is that we're leaping to another conclusion here.

One, the preamble talks about "...one of the 10 commissioners represents employers, though employers are often the respondents named in complaints filed with the commission." Then the recommendations talk about "the diversity of Ontario society." Therefore, are we talking about employer-employee or are we talking about the cultural diversity, or whatever the diversity of our society means? I know labour unions see that the world is in two ways, labour and employee, and this is saying a diversity of the society.

The Chair: It doesn't fit with the paragraph.

Mr Curling: Yes. I agree that the representation of the employer-employee should be there somehow. How do we deal with that? Then, if you talk about "the commission must reflect the diversity," we can deal with that separately. That's how I see that too.

The Chair: Maybe that is the way to cover off both.

Ms Carter: I think there is a problem here, because it seems to be a non sequitur between the bit about the employers and the respondents and then the resolution, but I think you could argue that diversity would include the difference between people who are liable to be complainants and people who are liable to be respondents. Now, how you can include that when you make your appointments I'm not quite sure. If we can somehow build that in, I wouldn't see any objection.

Mr Curling: Well, easily, because when the trade unions group is sending representation, make sure you have a diversity -- qualified diversity. You don't send someone just because they're an employee; you send someone who reflects the workplace, and don't put the onus here on the Ontario Human Rights Commission to say, "Well, I have to have an employee," because you know the record of the trade unions is terrible in its diversity. Then you are saying, "We want representation of employees." You do that, and when it arrives at the Ontario Human Rights Commission, it will be reflected accordingly.

I don't think the Human Rights Commission should be dealing with an employer-employee sitting there because I'm an employee. If you have done that by the selection responding to the diversity in the workforce, it will take care of it in the Ontario Human Rights Commission appointments.

Ms Harrington: I think it is clear from what Mr Pond has written on the bottom of page 27, if that reflects the hearings, that we were concerned with regard to the balance being more evenly weighted in favour of both complainants and respondents, and that concern is not reflected in the recommendation. I'm wondering if Mr Pond could suggest some way of having that reflected.

Ms Carter: "Diversity" could include that, but it's not specific.

The Chair: As I said a couple of minutes ago, the recommendation doesn't really match the paragraph.

Ms Harrington: Would you be willing at this time to give us some wording that you think might --

Mr Pond: Off the top of my head?

Ms Harrington: Yes.

Mr Pond: "In order to ensure that appointees adequately reflect the communities and interests directly affected by the commission's decisions," something along that line?

Ms Carter: In the hearings I believe we've had complaints both that there was bias towards complainers and complaints that there was bias towards respondents. So that's something that has to be dealt with as far as perceptions go.

The Chair: How about "adequately request the representation which comes before the OHRC," or something like that?

Mr Tilson: The wording "diversity of Ontario society" suggests a whole slew of things. It suggests unions and it suggests employers and it suggests employees. It suggests, as I indicated at the outset, all of the business with respect to employment equity. Does employment equity apply? The whole way it's been phrased doesn't match what you're trying to do, with due respect, even the new words. Are you trying to finish this today?

Mr Cooper: What if we went to "balance" instead of "diversity"?

Ms Carter: Why not both? You might lose something if you cut out "diversity."

The Chair: I'm going to suggest that I think Mr Pond knows what your concerns are, that the recommendation doesn't address the concerns that are in the paragraph. I hear that you're all in agreement with the preceding paragraph, so why don't we leave it to Mr Pond to come back with a better wording of recommendation 3 to address what you're all saying? I think he hears that.

Mr Curling: There's only one problem with that. Mr Tilson speaks quite well for himself, but there is something I'm hearing here that is so important that I think Mr Pond should take into consideration: If we are considering employment equity, which means that we must try to get rid of the systemic discrimination in our society, removing barriers so that all people can participate in fair treatment -- white, black, women, disabled -- if he's saying that and if we're saying we're going to do this now, let's make sure that when we are changing the composition of the commission and making an appointment procedure, we exercise the same principles we talk about in employment equity, if I'm hearing him right, so we all can compete and not patronize: "We've got to get an employee here because he's an employee. We've got to get a black here because he's a black." We want to remove those barriers that are inconsistent with your employment equity. It can't be having the Employment Equity Act over here to deal with certain people; it is to deal with all people.

I'm just saying to Mr Pond to be sensitive that when we talk about appointments to the board, we're talking about removing those barriers so that all people can participate, and you will get the diversity of the community in there of who are qualified.

The Chair: I think that these members of this committee, from my observation, would be very much in favour of wording that addressed the equality of all people and didn't just deal with designated groups. Is that what you're saying?

Mr Curling: Yes, I'm just saying to be sensitive to that, where we say we've got to reflect the diversity, that we make sure that is a --

The Chair: So are you happy to have another look at that new wording? In the meantime I would suggest that if you want to develop some wording you would like to forward through the clerk to Mr Pond, why don't you do that and then it would save time at the next meeting, because Mr Pond could have had your input to him in the interim.

Mr Pond: The point Mr Curling just raised was raised in the hearings. If you look at the first two paragraphs under the heading, "Membership of the Commission," in the middle of page 27, "Ms Brown was asked whether she was satisfied that the membership of the commission adequately reflected the diversity of Ontario society," and her answer: "She indicated that the commission needed more members who were bilingual, and that it was encouraging the first nations to suggest someone to sit on the commission." Underneath, I have in bold, "Does the committee wish to make a recommendation on this issue?"

Following what you've just said, you may want to suggest here another recommendation quite separate from this issue of employers and employees, because this issue did come up in the hearings, to be fair to the commission, and to you, since you probably want to raise it, if I remember correctly.

Mr Tilson: Surely the committee isn't suggesting that the size of the commission be increased. I can't believe they're doing that.

Ms Harrington: No, we aren't.

Mr Tilson: No, okay.

The Chair: May I suggest that if you do wish to develop some wording on your own, you get it to the clerk by Friday so that Mr Pond can have it and we can hopefully finalize this next week? If you could get it to Ms Mellor by this Friday, we can come with a satisfactory wording next Wednesday.

All right, so we'll move on to recommendation 4.

Mr Pond: This reflects the concern of some of the members during the hearings that the learning curve on the commission for new appointees basically eats into the time they have as commissioners, and therefore, as recommendation 4 has it here, that "The government consider reappointing commissioners for more than two terms when deemed appropriate," the idea being that you have a good commissioner who's gone through the learning curve, is then doing a good job and then all of a sudden his or her term comes to an end and all that knowledge and experience goes with him or her. That's the background to recommendation 4.

The Chair: Two terms being six years.

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Ms Carter: I have no problem with this. I understand that at present two terms is the norm for appointments to the OHRC.

The Chair: To all commissions, I think.

Ms Carter: But there have been circumstances where appointments have been extended beyond two terms. The point is that the value of appointing new commissioners is to make sure there are people on that commission who reflect the changing values and diversity of the province. So you want a balance between people with experience and people who maybe bring in new elements that would otherwise not be represented.

I have no problems with the wording here.

Mr Curling: There's also another concern: that some commissioners are part-timers. If the commissioners were full-timers -- is that so?

Mr Pond: Yes. That comes up, now that you mention it, sir, earlier in the paper. All we've dealt with so far are draft recommendations, which, as I said at the outset, the committee itself suggested we look at.

The earlier part of the paper summarizes all the recommendations that the committee considered relevant by the witnesses. There are a couple that address exactly this point: whether commissioners should be full-time or part-time, whether some of the commissioner's current statutory responsibilities should be devolved on legal counsel, that sort of thing. We'll get to those eventually, when we go back.

Mr Curling: The reason I raise that now, that the commissioners should be full-time, is it may have an impact on how we appoint.

Mr Pond: True enough.

Mr Curling: If we start saying we're going to re-appoint people on a two-term maximum time or as the case would be, or making sure they serve two terms in order to lend the experience that they've gathered over the first term, if they are full-timers, it makes a different strategy and will have a different impact; also, how we deal with cases afterwards, whether they go to the tribunal or not.

So before we make a decision on this recommendation, I think we should deal with the others, whether or not we should have commissioners full-time or have part-timers. When we speak about it, should that be the recommendation of the committee?

The Chair: You have to consider what is the role of a human rights commissioner, not that they're going to take over the workload of staff.

Mr Curling: But they do have a workload, because as a matter of fact more people will be appealing these things, and how much can they deal with if they're only part-time? You see the backlog, you see what is happening. Many of these cases maybe could have been dealt with if it went to the tribunals.

The Chair: But what becomes an extension of that, and maybe, Ms Carter, you know this: I would think that when an appeal is heard, it's never going to be heard by the full commission members. Probably it's heard by a panel of three or five. And what becomes interesting, then, is when it is heard by a smaller panel of the membership of the whole commission, there comes up the question of what the balance is on that individual panel, when you've just been talking about balance of representation on the commission as a whole.

Ms Carter: But we're not recommending, as I understand, that commissioners do be full-time, so I'm not sure that's an element we have to consider here.

Mr Curling: You remind me that some people don't have a full-time job but they have about three part-time jobs, and whether or not they could be more effective if they had a full-time job. All I'm getting at is that maybe if you had full-time commissioners -- has anyone studied that to see whether or not it could have a better impact on how we move some of that backlog, deal with those cases, more than decide to extend their time for a longer time, part-time?

I think we must deal with both cases. Deal with one, whether we want them full-time or part-time. And once we make the decision it is part-time, then I don't think we are dealing with the other cases at all. We just have to throw the full-time thing out.

Mr Robert Frankford (Scarborough East): Presumably we have to make a choice. It would have to be either all full-time or all part-time; you couldn't have a mixture of the two, could you?

The Chair: Well, you do essentially have a mixture because the Chief Commissioner is full-time.

Mr Frankford: Yes, I understand that.

The Chair: If you look at other boards and commissions, sometimes you do have a mixture: A chief would be full-time, and vice-chairs sometimes are full-time. So it's up to you to say what you are recommending.

Mr Frankford: I understand that having a full-time chair or maybe vice-chair has a great precedent.

Mr Tilson: Is it being suggested that part-time commissioners are not effective? In other words, if someone is appointed a part-time commissioner -- and I gather two terms equal six years. Did someone say that?

The Chair: Yes.

Mr Tilson: Is it being suggested that if someone is appointed for, say, one year or two years, they're not really effective and that you don't become effective until three years or something? Because if that's the case, if we have ineffective commissioners -- and I'm not suggesting necessarily full-time; I don't know enough about the subject, quite frankly, but if we're suggesting that the effectiveness of commissioners is not appropriate until they have been on the commission for some period of time, then that has deep ramifications as to the effectiveness of the whole system. If we have ineffective commissioners, maybe that's one of the reasons why this whole thing gets bogged down after a while.

I don't know that, but point number 4 has been put in for some reason. I can only assume that, indirectly, there's a period of time that part-time commissioners are not effective because they don't have the experience or the qualifications. If that's the case, then this is a serious subject and it needs to be reviewed more extensively somewhere, either by this committee or in some other forum.

The Chair: It's very serious if it's your particular case that's heard by someone who's newly appointed, so maybe it goes back to add emphasis to what your concerns have been about who is appointed to such an important commission.

Mr Curling: I don't think that the qualifications of the commissioners are in question here. I think they do a good job. What I'm saying is that we know about the backlog within the Human Rights Commission, meaning that there's a lot of work there. If someone is doing it part-time, those who go to the hearings that commissioners have to deal with and they are part-time, they have far less time with which to deal with it. I'm saying that we could have less people full-time, more on a full-time basis as commissioners than have part-timers who can't dedicate a full-time effort to that job. It's not about their competence at all. Therefore, we are being plagued with this backlog, meaning that dealing with cases, there are cases that wait 21 months after, just waiting for commissioners to hear it.

The Chair: If it isn't about their competence, then you don't want this sentence talking about experience necessary to make effective decisions, which is the point Mr Tilson is making.

Mr Tilson: That is exactly it. It doesn't matter what we think. This statement appears to be testimony that came to this committee that says that part-time commissioners' ability, once appointed, to gain the necessary experience to make effective decisions about the files placed before them by commission staff -- that suggests to me that part-time commissioners, at least at the initial stages, are not able to perform their duties. Otherwise, why would you want to extend the terms? Either they're competent -- and I'm saying this with the deepest respect; I'm just taking this sentence at its face value. It suggests to me that rookie commissioners, if I can use that word, may not be able to perform their duties or make decisions the way they should. If that's the case, that may be part of the jigsaw puzzle that's creating the myriad of problems this commission is having. If you don't have competent commissioners, the thing's going to get bogged down for various reasons.

The Chair: Maybe the committee should be reminded about who Mr Juriansz is.

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Mr Pond: I know a couple of the government members want to speak to this, but Mr Juriansz is the one who made this observation. He's a highly experienced employment lawyer, a former lawyer who worked for the federal Human Rights Commission, and this is his observation of the Ontario Human Rights Commission that you're seeing here. It was his view that commissioners were heavily influenced by what staff put before them, and I'm putting it that way --

Mr Tilson: That could be said about politicians. I understand that and that's the story of the system. I guess we're talking about independence -- I seem to recall that word was mentioned somewhere here. Maybe it's down below, maybe it's a further --

The Chair: Yes.

Mr Tilson: It does boil down to the issue of competence, and it rather alarms me, quite frankly, as someone who's literally walked into this committee session, because I think it's common knowledge that we all are afraid of the inability of this commission to operate effectively.

If this is one of the reasons, that the commissioners may not be qualified, perhaps for lack of experience, perhaps for lack of training. Maybe Mr Curling's right. I'm not prepared to agree with him yet because I don't know enough about the ramifications. He's suggesting full-time commissioners. I don't know what that means, but when we recommend to the Legislature that the government consider appointing commissioners for more than two terms when deemed appropriate, it suggests to me that the early stages of part-time commissioners are causing problems; that they are not as effective as they should be; in other words, that we don't have a system that is being as effective as it should. It has nothing to do with terms of office, Madam Chair; it has to do with the effectiveness of the running of the commission, and this may be a key issue that this committee has overlooked.

The Chair: Before we do that, I understand that we have an interest from outside of the committee members for a copy of this draft report, and I just want to reconfirm for committee members that the process is that, at the moment, it is only a draft report. It is the property of the committee and it is not for public distribution at this point because, before it's finalized, if it does become public, then it may become a question of privilege in the House. It is only the property of the committee for their discussion and their review, and it would be totally out of context if somebody outside of the committee members took the report and referred to it, because it is a draft only. I just wanted to confirm that.

Mr Frankford: A full-time commissioner is obviously paid a salary; that's their occupation. A part-time commissioner would be paid a per diem?

The Chair: They are; we'll tell you what it is in a second.

Mr Frankford: No, I'm not asking the amount. So in theory, a part-timer could be working five days a week, paid per diem. It's a matter of allocation whether they come in once a month or every day.

Mr Pond: Yes.

Mr Frankford: This conversation about the length of terms and part-time and whatever reminds me of the Ontario Municipal Board --

Mr Pond: Yes, I was just going to raise that, sir; good point.

Mr Frankford: -- which in the past has had people appointed for life and more recently has had people, I believe, appointed for five-year terms. In the discussions I recall about that, there is a judgement call: Does one want to have people who gain the expertise by being there for life, or is that a bad policy and should one ensure that people --

The Chair: There were never life appointments to government agencies, boards and commissions -- like the Senate, for example. It was quite a long time ago that a maximum of two terms, as far as concurrent appointments to government ABCs, was implemented; I think at least 10 years ago there was a cap put on.

Mr Pond: Dr Frankford was here in 1991 when this committee did the OMB, and that's what he's referring to. What happened was, as the Chair just alluded to, it was actually Mr Peterson in 1988 who established this rule that henceforward all appointees to ABCs would serve for fixed terms, regardless of what the particular statute said.

Now, the OMB at that time was exempted, and by the time we rolled around to this committee's review of the OMB in 1991, the government had decided to introduce this rule at the OMB. The OMB members who appeared before this committee, including the chair and some of the senior members of the OMB, were very upset by this. They did not like this idea at all, and one of the arguments they used against it to this committee, as Dr Frankford has just suggested, is that the learning curve for full-time -- and they are full-time -- OMB members, as far as the OMB was concerned, was at least 18 months. Therefore, to cut people off at six years, so argued the OMB, was a mistake, because you would be losing that experience so recently gained. Therefore, OMB appointees should continue to be at pleasure. That's that lovely phrase, "at the pleasure of the Lieutenant Governor," which in effect actually means for life.

So you see this argument in other agencies, was the point Dr Frankford was making, I think, to put words in his mouth. It's not just this business of part-time members at the Human Rights Commission; this is a general argument you'll hear with regard to a lot of commissions: that there is a learning curve when you get on the job -- it doesn't matter what the agency is -- and therefore that should be taken into consideration when you're setting the termination date.

Mr Frankford: And if I could just add, if I'm not mistaken, the OMB, because of its workload, has actually brought back former commissioners to work on a part-time basis.

Mr Pond: Yes, that has happened.

The Chair: We have Ms Carter, Mr Tilson, Mr Cooper, Mr Curling. We obviously are into a very important discussion.

Ms Carter: I think what we're recommending will give a possibility for some commissioners to stay on for longer, and I think the point is being made that that is not necessarily because they have greater expertise but because we need to have continuity of process.

But I think what we're forgetting in this discussion is the point that, after all, there's this full-time staff, which does the day-to-day work of the commission, takes in cases, does the investigation, and the commissioners just do the actual hearing. The facts of the case are presented to them -- that work has already been done -- and they're the people who make decisions.

I know Mr Juriansz did suggest that we have full-time commissioners, but as I remember, that was not a question that was widely raised and I didn't get the feeling that there was a large opinion behind the idea that we should do that, and I suggest that that's not really something that's under discussion at this point.

The Chair: Just to clarify the last statement you made, I think when you review an agency, anything and everything is up for discussion. So there's no limit on what you may discuss, nor is there any limit on what you may recommend.

Mr Tilson: Dr Frankford and Mr Curling have both made interesting statements, the issue of should someone be appointed for life; should we have full-time commissioners. I honestly don't know that. All I know is that we're dealing with the topic of extending part-time commissioners for more than two terms.

If we're not satisfied, if this committee feels there's a problem with part-time commissioners, we should say so; in other words, if the system is inadequate as it now stands.

I simply read the paragraph that precedes the recommendation, which is why I started this comment. It suggests to me that someone is making a comment that the effectiveness of part-time commissioners, in the early stages at least, is not adequate. If that's the case, then how are we going to improve that, because you will always have part-time commissioners, if that is the position this committee is adopting, that inexperienced commissioners cannot make proper decisions. That's always the case, whether it's judicial or whether -- you're always going to have rookie judges, rookie administrative tribunals, OMB. That always applies. But in this case we're talking about part-time people.

I'm just terribly alarmed, because I'm looking at the overall system, that there's something wrong with the system. If it's being suggested that one of the issues is the problem of commissioners, whether it's the training or the experience or whatever, then let's say it. If the answer to that is no, then I don't think recommendation 4 is really relevant. I don't think it should be made at all.

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The Chair: Or maybe you want to make another; maybe the committee might want to make another one.

Mr Cooper: I think Mr Tilson's going off on the wrong premise. I think that when we're talking effective here, we're not talking about them making wrong decisions or something that's not quite adequate. It is the same as when we take over the chair in a committee. If you have to constantly refer to the clerk or legal counsel or legislative counsel, refer to somebody else for advice, it's a time delay and you're not being quite as effective as possible.

It's kind of like what we did with the boards of education with the election of trustees. They used to be on a two-year term. What they would do is spend the first year learning the job and the second year getting re-elected.

Mr Tilson: Sometimes it's healthy to throw the whole bunch out.

Mr Cooper: I don't disagree with that, but the point is, to be effective is when you actually have the expertise, when you've been in the position and you've learned the job and you can make the decisions without doing all the referrals. It's not a case of making bad decisions; it's being able to make them on your own, without having to refer to maybe another commissioner for guidance or things like that.

I think this is what we're talking about: effective. I don't think we're talking about making bad decisions. What we're saying here is that once you've got that expertise, maybe we should keep them on longer if there aren't other people coming up. That's why the appointments are staggered, so you don't have the whole commission brand-new; you have some expertise you can refer to.

Mr Tilson: I'm aware of that. Again, I quite frankly find something offensive about the lifetime. We all think of the Senate and groan. Are we creating something else, a lifetime commissioner?

Mr Cooper: It says where "appropriate" here.

Mr Tilson: I know, wonderful words. I've said my point. My question is, is point 4 really appropriate? If we have a group of people who are staggered, as you say, it may well be that some are inexperienced. It's like any other tribunal: Some people are experienced. Some chairs are experienced, some chairs are not experienced, and gradually, through time, it works its way out. Lifetime appointments sometimes can be difficult.

The Chair: I think what is being said here is that Mr Juriansz made an identification, as Mr Pond has said, based on his experience, which is far more extensive than any member of the committee, because that's what he does all the time. It was an observation that he made. Without having the Hansard in front of me, I can't say that he actually, as Mr Pond has used the words, was making it as a recommendation, but he certainly has made it as a serious point for this committee to consider.

If you feel more comfortable considering full-time commissioners, if you're looking at backlog and you're looking at equity of who the commissioners are who hear these important cases, then that may possibly be the route you may want to go, rather than talking about serving more than six years without being -- some people do go off for three years and then come back.

Mr Tilson: Or the committee may thank him for his observation but it may not be serious enough to make a recommendation. That's another alternative.

The Chair: Yes, you do have that option.

Mr Tilson: What I hear today doesn't tell me that it may not be such a bad idea. Dr Frankford and Mr Curling have made some excellent observations, but it may well be that it's inappropriate to have lifetime appointments. It may be inappropriate at this time because of restraint to have full-time appointments. There may be room for debate there; I don't know that. It may well be that he has simply observed some inexperienced commissioners. Life is full of inexperienced people, but that doesn't necessarily mean they should be appointed beyond six years.

Mr Curling: What I have observed is a process that definitely is not working. There are all kinds of recommendations. Dr Ubale made different recommendations, saying that maybe we should have regional commissioners to deal with all this, meaning full-time regional commissioners, that maybe it would relieve the burden on that central place of the commissioner so that they could get on to doing other work. That is also a rather interesting perspective. what we're trying to do with you, Madam Chair, is wrestle -- we all are wrestling -- with, should this recommendation be recommended or not? We can't say approved or not.

The problem is that whether or not we accept one of the premises of how we're going to go, we can have extended part-time people, or the Cornish report recommends other things, and whether or not the minister is seriously reviewing and taking into consideration some of those recommendations, if she does, having people of other interest groups look at some of those complaints it shows the process in a different way.

On the Dr Ubale situation, if we say, "Maybe if it's regional it's better," maybe someone up in the north who has a human rights complaint is sensitive and is nearer to the issue dealt with than the central body can deal with it. It's hard to wrestle with whether or not we should recommend extended part-time, life or full-timers. I would move to the full-time situation, although it was nearer for us for once to concentrate on a day-to-day basis.

Dr Frankford said that of course we have part-timers who dedicate full-time to this, but the mentality there as part-timers is that it is a part-time job anyhow, so sometimes people take a part-time approach to human rights issues. I don't sit well with that kind of situation.

The Chair: What does the Cornish report say on this particular item? Now that we as a committee have asked the government to respond to the Cornish report, we would do well to make sure that the we know what the Cornish report is recommending.

Mr Curling: My reflection of the Cornish report is that -- again it causes a debate and I don't fully agree with the Cornish report -- maybe different associations could be established. In other words, if we have any interest groups that deal with human rights, then they could deal with their community, sort out all their human rights cases, maybe dismiss or advance them, and then send those cases that are sieved out, I would say, up to the Human Rights Commission. That's a very rough gist of some of the recommendations. I don't know, David, if I'm reflecting it right.

I have some concern about that -- some parts of it are attractive -- because I am concerned that if we give it to an association that has no proper training, what is the training manual going to have for some people to sort out human rights issues? That's another whole bag. It was really important that the minister respond to those recommendations, whether she would use those or not, but nothing was done with the Cornish report.

The Chair: The Cornish report doesn't deal with tenure. It says simply that appointments to these new bodies would be recommended to the Premier by a new equality rights appointments committee composed of three persons highly respected for their commitment to human rights.

Ms Harrington: It doesn't deal with the question we have before us.

Mr Pond: To be fair, as Mr Curling has just said, because her perspective is a total revamping, it would be very dangerous to sort of pick out this little issue and say, "Cornish says this about that," as Mr Curling has just suggested. Her vision is so different from the existing commission that I'd want to go back and check the actual text before I started pulling things out of it for you on that narrow issue.

Just to muddy the waters even further, the other point Mr Juriansz made about the composition of the commission, which is on page 25 here, the first bullet point, is that he suggested it was no longer appropriate for human rights decisions to be made by part-time commissioners. He questioned whether commissioners were necessary at all. The position of full-time Chief Commissioner should be retained, with the power to delegate responsibilities to the full-time professional staff. In particular, the power to decide which cases should be referred to boards of inquiry should be made by the commission's lawyers.

In the commission's response to that recommendation prepared for this committee, the commission rejected that recommendation of Mr Juriansz.

What Dr Ubale was recommending, as Mr Curling has outlined, was essentially the British system, whereby you have what they call employment appeal tribunals around the country which hear all employment-related complaints under statutory law in Britain: yet again another model.

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Ms Harrington: To come back to recommendation 4, the sentence above says "...they are limited from putting that knowledge to good effect by the two-term limit for appointees," and so the recommendation follows directly from that sentence without dealing with all the other issues we've just discussed.

Mr Pond: True.

Ms Harrington: What we have been discussing over the last 15 minutes is whether or not we should direct the government to consider utilizing more fully the acquired experience and expertise of commissioners by whatever means. What I think this committee is saying is that we look at it in a more general way than just the option of "more than two terms." I guess I'm asking you, Mr Pond, if the only concern with Mr Juriansz was the two-term limit or if it was more broad.

Mr Pond: That's a good point. The reason it's structured this way is that in this section of the draft, where we have these draft recommendations in bold, these simply reflect specific recommendations that members brought up at previous discussions and wanted to discuss formally.

Earlier in the report, as I was instructed to do in February, what I have done is summarize at length the other recommendations made by witnesses which this committee, at its previous brainstorming sessions, never got around to specifically discussing. So yes, elsewhere in this draft you will see other discussions about this issue, but as I say, it's sort of a bifurcated approach in this report because what you're looking at here are only the narrow issues which members of this committee have brought up at previous meetings. We should look at the broader picture now.

Ms Harrington: I would put forward then to this committee that we would like to have wording which is more general to recommend that the government consider options or ways of utilizing more fully the acquired experience and expertise of commissioners.

Mr Pond: I can certainly draft something to that effect.

Mr Tilson: My question is, to anyone, when does someone become experienced? One year, two years, five years? Six years is a long time.

Mr Curling: Slow learners.

Mr Tilson: I'm still not convinced that we should even be making this recommendation, quite frankly. There's no question that it's like any other job, I suppose, in that it takes a period of time to gain experience to be able to make competent decisions, but it gets to my original comment, suggesting that in those early stages, and I would suggest perhaps the first year, the first six months, one may need a little bit more experience to make proper decisions or to make the system run a little smoother. Six years is a long time and this wording is suggesting something that's well beyond the six years. I raise the question whether we should even be making this recommendation at all. Mr Juriansz's name is throughout this report. Just because he says so doesn't mean it's it, with due respect to him.

Mr Curling: To proceed with Mr Tilson's point, I would agree in a way. Just in considering whether or not we will extend part-timers or whether we consider my recommendation talking about making it full-time, there are so many areas in which we can go. We don't know where the minister is going with the Human Rights Commission because she has not responded to quite a few of the reports. It would be premature, of course, to start saying if we can recommend that they extend part-timers.

Mr Cooper: Excuse my ignorance, but is there anything prohibiting them right now from extending it past six years?

Mr Pond: No.

Mr Cooper: There's nothing?

Mr Pond: No.

Mr Cooper: Why don't we just drop the recommendation and leave the other part as an observation?

Mr Pond: My understanding, from what Mrs Harrington suggested, is that we would be dropping this recommendation. Was that not the intent of what you just recommended, that we drop recommendation 4 and simply replace it --

Mr Cooper: Just drop the whole section.

Mr Pond: I think Ms Harrington's suggestion was that we drop recommendation 4 as worded and replace it with something along the lines of "the government consider various options for better utilizing a commissioner's experience." That would eliminate the existing wording in recommendation 4.

Mr Tilson: I think recommendation 4 is redundant.

Mr Cooper: I think so too.

Ms Harrington: If they can appoint past six years, then to me, it is.

The Chair: Right. Do you want to leave the preamble in, because it was a point that was made to the committee --

Ms Harrington: Okay.

Mr Cooper: Just as an observation.

The Chair: -- and not make a recommendation? Is that your wish?

Ms Harrington: If I can be assured by Mr Pond that they can in fact be appointed past six years.

Mr Pond: Legally, yes. It's not the practice any more.

Ms Harrington: Okay, and perhaps we can put in that sentence about looking at ways of utilizing more fully their expertise and experience.

The Chair: Margaret, you're saying to put that as an added sentence on that paragraph?

Ms Harrington: Yes.

Mr Curling: What is that you're adding to the sentence?

Ms Harrington: It now says, "Once they have acquired experience and expertise, they are limited from putting that knowledge to good effect by the two-term limit for appointees."

The Chair: Yes, and now you want to add --

Ms Harrington: "That the government consider options for utilizing more fully the acquired experience and expertise of commissioners."

The Chair: Which wording, I would suggest, leaves open even full-time commissioners.

Ms Harrington: Yes.

Mr Pond: Just to interrupt, Madam Chair, what we could do in that section is take all the comments in this draft about this issue -- I quoted you the major one on page 25 -- wrap it into this preamble, make the point that legally the government can appoint people for longer than six years anyway and then finish with Miss Harrington's recommended sentence. That would basically deal with the whole issue, if you like.

The Chair: So what you're going to do is put it all together on the same page. You'll put it back following page 25?

Mr Pond: Where things appear is another issue, but in terms of the wording, that was where we deal with this whole issue of the status of commissioners.

The Chair: But it won't be at the end, because it's now no longer a recommendation.

Mr Pond: Actually, you can put it at the end anyway. We've done that before with other reports.

The Chair: But isn't the end presently all recommendations?

Mr Pond: Yes, it is.

The Chair: I think it should go earlier in the report as an observation, because it's no longer a recommendation. Is that okay?

Ms Harrington: Yes. Mr Pond, may I question then where you say they are "limited...by the two-term limit for appointees." Should that be changed?

Mr Pond: Yes, and one way to do that is to make it very specific that that's Mr Juriansz's point of view and not the committee's. I'll check the Hansard on that just to be fair to Mr Juriansz.

The Chair: That's great. All right, we're down to the last recommendation.

Mr Pond: This is Mr Curling's idea. This came up over and over and over again in the hearings, namely, that the government should amend the Human Rights Code to provide that the commission report directly to the Legislature, and not through the minister to the Legislature.

Mr Curling: I see that as a conflict for the minister, anyhow, dealing with human rights cases. If I have a case against the Minister of Citizenship, I would feel completely intimidated that I'm going to be bringing a case before the minister. There are many cases, as a matter of fact, right now where people have come to me and have concerns about the Ministry of Citizenship and how things are being operated.

What I'm getting from them is a sense of fear that justice will not be done. I feel that justice must be seen to be done, that the Human Rights Commission should report straight to the Legislature or to a committee and get rid of the kind of situation we have with the Ombudsman, to make it rather clear how they report. That is basically my motivation in having the Human Rights Commission report to the Legislature more than having the Human Rights Commission report to the minister.

A good example of that: We saw the circus when we wanted the Employment Equity Commissioner to come before us. I'm sure the commissioner wanted to, but somehow it seems to me that there's some direction that they've got to go through the minister before they can account to the Legislature, to the legislative committee.

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I feel it would be much more responsible and the people would have more confidence in the system if, when they put their case, regardless of whom they have their case against, they feel they could heard properly.

The Chair: It's truly at arm's length is what you're suggesting.

Mr Curling: At arm's length.

The Chair: Then it would be the same as the Ombudsman.

Mr Curling: Exactly.

The Chair: What's the discussion on that? Can I just ask one technical thing? Would it be the code that would be amended, not the act?

Mr Pond: That is the act, essentially.

The Chair: What is it that states --

Mr Pond: The Human Rights Code. That's it. That creates the commission.

The Chair: I see, okay.

Mr Cooper: I would tend to disagree on this. I think we're looking at an independent body. Whether they refer to a ministry or to the Legislature, the government still has the majority in the Legislature. To be reporting, with it being independent the way it is and the accountability that is set up, I don't think this is going to make any difference.

If you look at the Ombudsman, who reports to the Ombudsman committee, it's still the government that has the majority. Everything is fairly public now, so I don't see that this is going to make any difference at all with an independent body, that they're going to be intimidated by having to report to the ministry first, before the Legislature.

Mr Curling: Mr Cooper, I have respect for you and all that. Just examine it again. You're saying justice will be done, because if we are the government, we're going to lean on the side --

Mr Cooper: No, whoever the government is, the government of the day.

Mr Curling: Exactly. If they are reporting to the Legislature, they are more accountable to come before us. We can call them before the legislative committee at any time we want and the report comes through here.

The Chair: Can I just read to you from the Ontario Human Rights Code?

Mr Curling: Yes.

The Chair: It says, under part III, subsection 27(2), "The commission is responsible to the minister for the administration of this act." Whether you think that makes it arm's length is up to you, but it certainly tells you in the act that it's the minister who's responsible for the administration of the act. I guess it depends how the minister chooses to administer the act.

Mr Curling: You try to write the minister and ask her about a case and then she tells you how at arm's length she is. All of a sudden they're responsible and they are at arm's length. You write the human rights commissioner and she's at arm's length. Nobody can reach all this process because everybody's at arm's length.

As a matter of fact, in some countries, what they do with the Ombudsman is that the Ombudsman is a parliamentarian. Because these are the people they see out there, they're going to advance their cause and get things done. But we are just puppets, jogging the strings. We can't move because so many laws have isolated us from getting the job done and making justice be done.

I'm saying to you, take a very serious look at how accountable the Human Rights Commission could be. I think they're more accountable to a Legislature than to a minister.

The Chair: I'll just read you another point.

Mr Curling: You're turning into a lawyer now.

The Chair: No, I think what I'm reading is supporting some of the concern that is being expressed at this committee dealing with the annual report under subsection 31(1) of the Human Rights Code: "The commission shall make a report to the minister not later than the 30th day of June in each year upon the affairs of the commission during the year ending on the 31st day of March of that year."

It's a very direct reporting of everything to the minister, and then the administration of the act by the minister. It is obvious that the minister is directly responsible for this act, and it's written in the statute. It must be very difficult then for the minister to turn around and say it is at arm's length.

Mr Cooper: I think, by extension, what Mr Curling would be saying then is that the police force should be directly responsible to the Legislature and not to the Solicitor General, that the courts should be directly responsible to the Legislature and not the Attorney General.

Mr Curling: Bad analogy, because the police have laws.

Mr Cooper: It's the same thing. Somebody has to administer.

Mr Curling: No, the policeman has laws to follow. They know how to prosecute, how to arrest and all that. Here it's almost judgmental itself.

Mr Cooper: Such as the courts?

Mr Curling: Again, though, we have the police complaints commission. We have all those things where we are saying they must report directly so we can investigate police. Everything is reported to the minister directly. They're not reporting from arm's length. She's directly involved in the administration day to day of the Ontario Human Rights Commission. Is that right?

Mr Cooper: No, not day to day.

The Chair: There is a difference with the Ombudsman, and I think that's where you see an exception, a difference.

Ms Harrington: I just thought of the Pay Equity Commission. It reports to the Minister of Labour; that same kind of relationship that Mr Cooper brought up in other examples. It seems to me that we are going to disagree on this and that we would end up having a vote on this.

The Chair: The thing is that we don't have a full committee of members here to vote on this, and this is an important recommendation that needs to be voted on.

Mr Cooper: The members who are here are the committee.

The Chair: Do you wish to vote on it with the members who are present? What is the direction from the committee?

Ms Harrington: I think we've been working all morning with this group.

The Chair: Yes, so I'm going to ask, if there isn't any more discussion on recommendation 5, it needs to be voted on.

Mr Curling: That's right.

The Chair: Recommendation 5 reads, "The government should amend the Ontario Human Rights Code to provide that the Ontario Human Rights Commission should report directly to the Legislature, and not to the Ministry of Citizenship."

All in favour of that recommendation? Opposed? That recommendation is lost.

Will it be the wish of the committee that the preamble to that recommendation stay in the report or not? I suppose it's redundant to have the preamble in the report if it isn't followed by the recommendation. Would you agree, Mr Tilson? Okay, so we'll just eliminate it.

That completes the review of this draft report except for -- Mr Pond.

Mr Pond: The thing to point out here is that all we've dealt with this morning, as I mentioned earlier, are draft recommendations brought up by members at previous meetings of this committee dealing with this report. What you haven't dealt with -- and you don't have to if you don't want to, obviously; it goes without saying -- are all the other recommendations made by witnesses which this committee at none of its previous meetings formally addressed.

If you recall, in February you directed me, when I prepared the first draft, to summarize the relevant recommendations made by the witnesses, which you might want to consider down the road. They start on page 17 and go on to page 25. I guess the question is, since what you have here on these eight pages is a summary of the testimony of witnesses with, do you want to look at these? Do you want to consider these recommendations? Do you want to junk them entirely? Whatever. Do you want to do that or do you want to simply leave all that out? It's up to you.

Mr Cooper: I think in fairness that we should discuss that at our next meeting, being that it's 12 o'clock now.

Mr Tilson: My observation, for someone who obviously hasn't spent a great deal of time on this, is that there is a problem with the effectiveness of the Human Rights Commission. With due respect to the committee, the major concern is the backlog; it's just grinding to a stop. There are some interesting observations throughout the report, particularly from Mr Juriansz, I think, as to why that's happened, due to expansion of jurisdiction or the commission seems to be going wider and wider, taking more and more on.

My question is, do the recommendations that are being made by this committee deal with solutions, making recommendations, as to how the operation of the Human Rights Commission can be improved? Quite frankly, I'm not so sure this committee has investigated that sufficiently. I think there's more work that needs to be done. The topics that were raised this morning were very interesting but it doesn't really get to the crunch as to why the system's grinding to a stop.

The Chair: That's why what we have completed this morning are only those three recommendations. The point that you make, Mr Tilson, is a valid point and it's following on what Mr Pond is saying. On all these other areas that were identified in the previous pages where he is saying does the committee wish to endorse this recommendation or make a recommendation, the point is that this is the work of the committee and that has yet to be done. Mr Pond can't assume what recommendations the committee wants to make as a result of the testimony. Certainly, the testimony before this committee did heavily address the issue of backlog. I think it was the main issue of concern.

Mr Frankford: I agree that the recommendations we've discussed have been quite broad, while the specific questions that were raised earlier on in the text are more concerned with the direct management of case loads. I think we have no alternative but to return to it and to go through what's written there.

The Chair: I think what we need to do is have each of the caucuses review this draft report so that when we come back next week to finalize it, there is a strong position from each caucus about how you want the report to read.

Ms Harrington: I think the instructions we got from Mr Pond and now yourself are for each of us to go back to pages 17 to 25 and come up with recommendations from that.

The Chair: Thank you.

Ms Harrington: Just to clarify.

The Chair: Yes, I appreciate that.

Mr Cooper: Being a member of the Ombudsman committee, we're reviewing exactly this thing about the issue of the backlog in the Human Rights Commission. Was there correspondence sent from that committee to this committee? I thought something came up in the other committee.

The Chair: The members of this committee all received copies of the material that went to the Ombudsman's committee, so these committee members have the benefit of the same material that you were reviewing.

Mr Tilson: Mr Juriansz has made some alarming statements. He says on page 14 that the commission has been jurisdiction hungry. He felt that the commission was constantly striving to enlarge its own jurisdiction, thereby making a backlog of cases inevitable, and then he gives a number of cases. I don't think this committee has dealt with that topic of the jurisdiction of the commission, whether or not the jurisdiction of the commission is too broad, whether it's capable, if it assumes a certain jurisdiction with the personnel that it has, of dealing with that jurisdiction, or should the jurisdiction be narrowed? I don't see that being dealt with anywhere. That, to me, is the crunch of this whole issue: either (a) there's not enough personnel to handle these cases or (b) the jurisdiction is too broad.

The Chair: Mr Tilson, you're absolutely right, that hasn't been dealt with. This is the first day that we have dealt with our draft report and there are not recommendations that are dealing with that. We wish you were on the committee all the time.

We're just starting the work of dealing with a draft report, and having just commenced the work of the draft report, we have made some headway this morning, for which I thank the members. We look forward to the continuation of this report next week.

The business of the committee next week: We will begin with a review of appointments and then we will continue with this report. We are not having a subcommittee meeting today, so I thank you all for your attendance this morning and the work that has been completed so far.

The committee adjourned at 1204.