DRAFT REPORT ONTARIO HUMAN RIGHTS COMMISSION
CONTENTS
Wednesday 8 June 1994
Intended appointments
Sapard Kalala, Ontario Film Review Board
George Trialonis, Ontario Highway Transport Board
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:
Klopp, Paul (Huron ND) for Mr Harrington
Fletcher, Derek (Guelph ND) for Mr Mammoliti
Clerk / Greffière: Mellor, Lynn
Staff / Personnel: Pond, David, research officer, Legislative Research Service
The committee met at 1011 in room 228.
INTENDED APPOINTMENTS
The Vice-Chair (Mr Allan K. McLean): This morning we're dealing with some appointments, and the first on our agenda is the intended appointee to the Ontario Film Review Board, Mr Sapard Kalala.
SAPARD KALALA
Review of intended appointment, selected by third party: Sapard Kalala, intended appointee as member, Ontario Film Review Board.
The Vice-Chair: Sapard, you have the opportunity to make an opening statement or a few remarks or we can go right into questions, whichever is your wish.
Mr Sapard Kalala: If I can say bonjour. Mon nom est Sapard Kalala. Je remercie d'abord le gouvernement qui a soumis ma nomination à ce comité. Je remercie aussi les membres du comité, venant du Président au Vice-Président et à tous les membres du comité qui sont ici.
The Vice-Chair: We haven't got translation.
Mr Kalala: Good morning. My name is Sapard Kalala. I thank first the government, which submitted this nomination to this committee. Also I thank the Chair, the Vice-Chair and all of the honourable members of the Legislative Assembly to be here talking with you. Thanks again for having me here. I am quite a bit shaky because you are the people I watch mostly on TV. When I see you now, you can understand my situation.
The Vice-Chair: We have a half-hour review and will start the first 10 minutes with Mrs Marland.
Mrs Margaret Marland (Mississauga South): Welcome, Mr Kalala. You must be really hard up for entertainment if you're watching us on television.
In my opinion, the Ontario Film Review Board is one of the most important government agencies we have in the province today, and I'm glad that you're being appointed. I'm interested to know your opinion on a number of things, because I'm sure you're aware that there has been a tremendous amount of controversy swirling around the Ontario Film Review Board for the last four or five years.
One of the concerns of the public stems from the fact that the viewing of the films is done at seven or eight times the normal speed and the sound is turned off. I just wondered what you would feel about being asked to review film in that way.
Mr Kalala: I can't accuse the members of the board because I've never been in the work before and I don't know if they are viewing the film by turning the sound off. But for me I think it is better to do the job well. I have to view the film with the sound on to hear what they say and to follow it mostly for the enforcement. I will follow it regularly as the people who are watching the film, to see and to understand what could be good for our society.
Mrs Marland: Dorothy Christian, the chairman who just stepped down, was the one who told us that they viewed it at seven or eight times the normal speed with the sound turned off. One of the reasons she gave was that they just couldn't get through the volume of material if they had to sit there and watch everything at normal speed. I'm pleased to hear that you wouldn't want to review it that way.
Another thing that Ms Christian, the former chair, said was that the first obligation of the film board was to the business, the industry who produced the film, and the second responsibility was to the public. I wondered if you agreed with her position if you were being asked that question.
Mr Kalala: That's very controversial, because I know that firstly it's the public we are protecting. We protect the children of our society, those who will be responsible citizens of tomorrow. We have our mandate with society first, and business also comes first because it's very interesting for our society to have certain economic background. But when a board like this is there it's to protect society from violence, from all of the bad things that are happening in films today, and I think we have to do what we can do to protect the society. That's what I think.
Mrs Marland: Your priority is first to the people of Ontario, not to the industry?
Mr Kalala: Yes, it's first to the people of Ontario. But also we have to take the balance: people first and other things come after.
Mrs Marland: It is a publicly funded agency, totally publicly funded, so I think that's what the public are looking for. Do you believe in censorship?
Mr Kalala: The problem is, I can't say no or yes. If I follow the Charter of Rights and Freedoms and if I look at freedom of expression, because we consider things such as films under section 2(b) of the Charter of Rights and Freedoms and we believe that censorship is not really a very good thing, because sometimes it starts the people to think and extends knowledge. But in our free and democratic society, governments, you who are the lawmakers, have the right in section 1 of the Charter of Rights and Freedoms to protect society from some of the things like violence against women, against children and all of the materials which are harmful to our society.
Mrs Marland: In this case, the government and the people of Ontario have diverted that responsibility to the Ontario Film Review Board. That's why I'm asking you, as a member of the Ontario Film Review Board, if you believe in censorship and would be willing to simply say outright that certain standards have to exist and certain material will not be circulated, even under any classification. Would you be willing to do that?
Mr Kalala: Yes, because I remember that in the Butler case Judge Sopinka said the same things, that there are some materials with obscenity which are dehumanizing, degrading people, mostly women, and they are really harmful to our society. These kinds of things can't be left in our market because they are not good for our society. These bad acts can't be accepted in Ontario at all, and I think that they could be deleted or censored.
1020
Mrs Marland: So you are willing to say no?
Mr Kalala: Yes.
Mrs Marland: How do you hope to establish your understanding of what the community standards are, of what the public wants? How do you hope to do that as a member of the Ontario Film Review Board?
Mr Kalala: Community standards are something which are more subjective than objective, but we can see that something which was considered pornographic in 1955 is not today pornographic at all; it's quite erotic material. By setting community standards, it's like having all of us in the same community, all of us different -- I can't say different people because people are mostly the same, but different ideologies, people with different backgrounds, or people like us on the board and some people who view things differently, and that's the community standard. Together we shall make at least one thing which could come up.
In French they say, «On choque les idées, jaillit la lumière,» which means that where there is at least a shock of ideas, there will be lightening, and from that lightening together we shall make the community standards. With blacks, whites, different backgrounds of people, French Canadians, English Canadians, Hungarians, all of those people together but different backgrounds, we can make community standards. That's what I think.
Mrs Elizabeth Witmer (Waterloo North): I hear you saying then that you would support censorship of some material, some films, and the distribution thereof.
Mr Kalala: Yes. I would like to do that in the case where they are materials which are degrading people, mostly women, as we know it, and which are involving minors and bestiality, something like that. I can't let those materials get out.
Mrs Witmer: I'm pleased to hear you say that, because a leading group of psychologists have recently acknowledged that there is a need for some censorship. It was very difficult for these individuals to arrive at that particular conclusion, but the linkage between violent movies and violence practised by individuals as a result of what they see in violent movies that mutilate women and children and what have you unfortunately now does carry over into the actions of children. We saw that in the case of the two boys in England. The one boy had been influenced by pornographic material that was in the home of his father.
I think there is an acknowledgement, although many people have not supported censorship in the past, that the linkage is there between what people see and how they act out that behaviour on the street. I hope that you would continue to be an advocate for the removal of material that was totally inappropriate for any audience whatsoever.
Ms Jenny Carter (Peterborough): I see you have quite a rich and varied background. You've travelled and so on. I was just wondering if you could tell us how your life experience and the different involvements that you've had with your community will help you contribute to the work of the film review board. What do you bring to this position?
Mr Kalala: I bring my experience. As you can see from my background, I have been involved with many people of different backgrounds, with the community as a whole from richest to poorest. I've travelled quite a bit, and with my education I think that's going to help me at least to see what the standards are. It will help me a great deal to contribute to this board. I hope that it will at least make Ontario a better place to live in by viewing the films. That's all I can say.
Ms Carter: As you said, it's hard to say that there's one set of community standards because there are so many different groups with different standards and you would have some understanding of what those different points of view would be.
You've been asked about censorship, but, of course, there are really two things that are involved here. One is sexual explicitness and the other is violence. Would you perhaps feel that violence was more of a problem? Do you have any opinions on that aspect of it?
Mr Kalala: Yes, because, as I said, I just remember in the Butler case Judge Sopinka said that there are so many materials which have explicit sexual activities but which are consensual. That's erotica and they can keep it for viewing. But where there's violence, it's better to stop it, because violence is violence, and violence is very bad, is degrading people. We have to stop as fast as we can. That's my idea.
Ms Carter: I'd go along with that.
Now a different question: Obviously entertainment technologies are changing all the time, and, of course, there are new implications with each technical change that we get. How do you see the role of the Ontario Film Review Board being affected by new technologies?
Mr Kalala: At this point I think we have to have a lot of concerns about what is produced. First of all, you might be sleeping at home at night and have children or grandchildren who are watching some pornographic materials on the computer or something like that. We could put our heads together to start to get all of the materials, maybe the films published in America and so on, and try to play the bigger role of educating, which is very preventive, rather than going to look for films to censor. That is, we should try to educate people to know what is in the materials, to watch their children and what they do. From there, maybe people will choose what to view.
I have spoken to kids. When you tell them the Power Rangers are very violent and tell them, "Don't watch it. This guy's bad. If you watch it, you'll be violent," the kids start to say, "No, we don't want to watch Power Rangers at all because they are violent." That's the way. When you start educating people, they will know what is better. We are aware about these things which can hinder our children, younger people who are the future of this place. If we educate them when they are young, when they are our age, they will be better. That's all I can say.
Mr Robert Frankford (Scarborough East): I note that you live in Ottawa. Are you aware of the equivalent situation in Quebec? If one lives in Ottawa, going to Hull, would one be aware of any differences in policies about film censorship in the two jurisdictions?
Mr Kalala: Fortunately at this time I am working with the Quebec Human Rights Commission in a Quebec-Ontario exchange. I am an investigator and I deal quite a bit with the Quebec Charter of Human Rights and Freedoms. I found out in Quebec the Régie des films du Québec, which is the counterpart of the Ontario Film Review Board, have stickers on their films and the classification is made straight away from Quebec.
Mr Frankford: On the videos.
Mr Kalala: On the videos, yes. But here most of the time the videos we see, we find that it's PG-13, which is not the same classification, because here it is classified as "Family," "Parental Guidance," "Adult Accompaniment" and "Restricted." But in Quebec it's not that way. All of the stickers are coming from the Régie des films du Québec, and that's the difference. I found out that Quebec regulates their own and they are shown.
1030
The second difference is that in Ontario we classify films and the classification remains on the lists that are in the stores. They are not stuck to the films themselves, which is quite different because when people come, like when the police come, they have to go through the lists. For better control of this, it's better to have at least the stickers on those films and this could help to do something.
Mr Frankford: So this is something which might be discussed in the board.
Mr Kalala: Yes, we have to. I think we have good staff in the ministry and they are aware of it. In the board I think we have to discuss it.
Mr Frankford: Yes. Are you aware that there is any difference in the approach to judging films in the two provinces? You did say there was some classification.
Mr Kalala: Yes, classification. There is a difference because in most of the provinces, Quebec included, they start with "General" and they go on, but we don't have "General" here. We start at "Family" and "Parental Guidance." Maybe if we can do the same -- I don't know; It's up to the board to decide. I'm not on the board yet, but I think we should discuss this.
Mr Alvin Curling (Scarborough North): Mr Kalala, I want to welcome you here because it gives us an opportunity to see the kind of qualifications of an individual who is serving on the Ontario Film Review Board.
You come well qualified, I see, to this, but within this jurisdiction that you are, from time to time people will be asking you, and I notice that my colleague earlier on did ask you, about the community standard and how you define it. I think you defined it very well, but, you know, it's almost a moving definition, because in Ontario we talk about our diversity and as people move around and immigration comes in or in around the province, we find that it changes.
Do you think that the approach that is used by the Ontario Film Review Board is in a sense able to really properly define the community from time to time, or are we giving it too much of a job that is almost impossible, to say this is the community and then we will react to that community? Do you think this committee that you sit on is able to define the community and its standards?
Is it able to do that because -- and allow me a little bit because there are times when you define it, the courts then will define what are standards and then the police define what are standards. Do you feel that this board is put in a peculiar position to define the standard and then be tested by the court and tested by the police how they enforce the laws?
Mr Kalala: Yes, sir. As you said, I think it is a moving definition. If we look back, we know that most of the decisions in this country were mostly -- without prejudice I can say that they were mostly -- I am thinking the example of Judge Denning, who gave an example of a reasonable man. He thought that a reasonable man has to be an Englishman, has to be a gentleman, he has to have an umbrella and a suit and a moustache and he has to wear black suits and hats. That's what they thought first as a reasonable man. We never had the definition of a reasonable woman at all because in some of the cases you find Denning saying that because she was a woman, she didn't have the standard of a reasonable man and then she was incapable.
That's what happened, and after years and years I think we are moving in the right direction. As far as we recognize the voting rights of those women that we are always working on, we recognize the rights of some of those people who are invisible or visible minorities, as they call them, we recognize the rights of other people to be equal and we've got the Charter of Rights in Canada and the Human Rights Code in Ontario, I think we are moving in the right direction.
By putting all of us together now -- women, men, different religious professions, Catholics, Jews, Protestants and all of those, and people of different sexual orientation -- all of us together discuss something we see that can happen in our society, to bring people together and discuss that. I leave the partisan politics for you -- you are the ones I always watch on TV discussing those things -- but on that board it's better for us to be really sure that what are we working on, as a group, we are working towards one objective. That objective is to keep our Ontario safe.
Mr Curling: You're always put in a very difficult position, the board that is, because things that would be perceived as being natural for some people are offensive to other people. What comes to mind now is the example of Show Boat. Some people feel that it is quite entertaining, historical -- not factual but historical, some people say -- and other people say it is offensive.
As we try to define that, do you feel that we'll ever reach the situation, especially in times of history, where some of the things that happened in the past that have been so hurtful to people, if you want to call them minority groups -- because I don't think they were quite successful, those who felt that Show Boat was offensive -- could appeal to organizations like yours or some organization where they could make their concerns known? Do you feel that there should be something like that? Do we have films that have been shown and people seem to have gone to the Ontario Film Review Board and have had them withdrawn?
Since you come under the Theatres Act, and I presume Show Boat would come under the Theatres Act, do you feel that there should be something like that, because continuously -- I'm a black person -- people want to find out if Show Boat is offensive to me, and if I say no and the next person beside me says yes, where do we take that kind of a situation?
I could say that I commend the Jewish people who are so organized, who have categorized and listed some of the things that have been atrocious in their lives, and say, "We can identify that and we want that withdrawn." I don't think the black community has those kinds of resources and organization. Do you feel there should be some board where that could be addressed outside of a court?
Mr Kalala: You said that it puts you in a difficult position, but you are putting me now in a particular situation. Seeing a black cat doesn't mean that the black cat is not a cat at all. All of us are human beings, despite all the distinctions between our colours. I know that so many bad things happened to Jewish people in Germany and I don't deny what happened to black people on slave ships, but that didn't stop the production of a movie like Schindler's List.
Second, I know that with things like Show Boat, there will always be disagreement with people. There will never be a 100% agreement in our communities. But I know that if I go today to have it, they will see me and say, "You are a black person," and at the same time with intention people tend always to compare that I represent you, as when you are there, even though I didn't select you, they can always say that you represent black people.
This time, as in Show Boat, in case of things like that, our community is well aware that we are in the 20th century. We are not in the 21st century. History is long, but reminding people about their history is not bad, except in the case where this has been done with the objective of trying to degrade people. But if it's done to teach, to remember as in the arts and to give a certain historical significance, I think it's a good thing, because everybody tends to forget. That's what I can say.
1040
Mr Curling: I think you answered well on that, very well. It's not a matter of testing you to see how you answer it. I think what you're saying is how difficult it is. My position and my question is, who will make those judgements? Who will say, "This is history," and who, "This is offensive"? I don't need you to answer that, because I'm saying that will be raised from time to time. What is offensive to one could be quite entertaining or historical to the other, conceived as historical stuff.
I see this also in the way that you do things on the review board. For instance, when you want to rate one film as an AA rating and one as restricted, which one should you see, because some people see that as what's the difference between AA and a restricted rating film. Some people would see this as being rather obnoxious and some people see it as normal entertainment.
I don't have another question. I just want to say to you that, reading your background and seeing how you present yourself, I think you will make a great contribution to the board. Robert Payne was there before and raised some very important questions. Some of it has not yet been resolved. We hope that you continue to contribute to that and reach out in the community so that you can have a community standard and community reflecting its aspirations, its history, and what is offensive to that can be reflected in your decision.
The Chair (Mrs Margaret Marland): Thank you for appearing before us this morning, Mr Kalala.
GEORGE TRIALONIS
Review of intended appointment, selected by government party: George Trialonis, intended appointee as member, Ontario Highway Transport Board.
The Chair: Mr Trialonis, welcome. If you wish to make a brief opening statement, you may, or we may just start with questions, whichever is your preference.
Mr George Trialonis: Thank you very much for giving me this opportunity to be here with you and share ideas and get more experience.
Mr Frankford: Good morning and welcome. I notice in your résumé you don't really have a great background around transportation, but you have a background in small business and communications and in the Greek community.
Mr Trialonis: Yes, that's right.
Mr Frankford: Can I ask you something which you may not have thought about? It's a long time since I've been in Greece, but in many countries there is a sort of intermediate form of transportation -- in Israel they're called sheruts; in North America in the past they were called jitneys; in Mexico they're called públicos -- a form of quasi-public transportation which is small vehicles going in fixed routes for a modest sum. Is there such a thing in Greece?
Mr Trialonis: Yes, there is. Transportation is divided into different sectors. One of them is assisted and financed by the government and another one is operated by owners, by the private sector. So it's a mixed private and governmental sector. It seems that both of them work well. In case any one of you has been to Greece, I think you didn't have any trouble with going around.
Mr Frankford: The private ones would be the smallest --
Mr Trialonis: Small licences, yes. They operate the small vehicles primarily between the big cities and the rural areas. The governmental sector operates in the big cities; like the TTC and the highway transportation system.
Mr Frankford: I don't expect you to know the complexities of the regulations that exist right now, but it would sound to me as though the board which we believe we're going to be appointing you to would be able to oversee this and perhaps there would be an opportunity of getting into a similar type of vehicle and encouraging a new sector of transportation.
Mr Trialonis: Yes, I would say. I don't want to compare what happens in Greece and what happens here, but transportation, I believe, is a very important aspect of the governmental issue. It brings people together and it gives the opportunity to rural areas, help to cities to develop, and I think it's very important.
My background is not very rich, but I'm a fast learner. I believe that with cooperation and exchange of ideas I'll get the experience and serve Canadian transportation.
Mr Frankford: It would sound as though you have some interesting experience that you can bring from another country, which I personally have been looking for and I think it's a welcome appointment.
Mr Trialonis: If they would be appreciated by the rest of the board, yes.
Ms Carter: As has been mentioned, you don't have very specific knowledge of the transportation industry, and I believe it has been the practice in the past to appoint to this board people who have been more closely involved. It seems to me that this is a deliberate policy of having more of a mix of people on this board, which I think is going to be a good thing because you'll bring a different viewpoint and you're not specifically involved in the kind of issues that have affected this.
If you were involved in making a decision -- and obviously you need to know all the rules and regulations pertaining to licensing and so on -- if you found that you didn't know how to apply the act to the case that was in front of you, what would you do?
Mr Trialonis: It seems to me that I would ask the advice of the rest of the members of the committee, exchange ideas, ask them questions towards what's legal and what's not, and then I would make up my mind, but based on what the rest of the committee, the more experienced people, will say.
That's in the beginning. I hope once I'll get familiar with the procedures and be more experienced, I would be able to make up my mind. Even if such is the case and even, I think, experienced members, they have to exchange ideas with the rest of the board as well.
Ms Carter: You have been involved with small business as an owner-manager of a community newspaper. Do you think that the experience you have had will be useful to you in this function, because, after all, the people making these applications are small businesses.
Mr Trialonis: I think so. I have a very good idea what the difficulties are for having your own business. I have served also on the Greek National Tourist Organization and, of course, tourism and transportation were related somehow, and that helped me a lot. I think I can bring my ideas and I'll be helpful.
Mr Daniel Waters (Muskoka-Georgian Bay): Your last statement, sir, was very refreshing; finally somebody that recognizes that our roads are made for more than just tractor-trailers. Coming from a tourist area and a cottage area, one of the things I've always found difficult to understand is why the people at the Ministry of Transportation don't understand why they built the roads. There's more than one reason, and one of the biggest reasons hopefully in the future will be tourism.
1050
One of my other concerns, and I really don't know whether it's part of the commission of the board that you're going to sit on or not, but it's becoming a hazard, I believe, on the highway, is the ability for tractor-trailer companies to put five and six or more axles under a trailer, because of the weight, the damage it does to the road and the ability to stop. I have even had truckers admit that once you get these five-axle trailers fully loaded, you can't stop them in an emergency.
I'm curious: Do you know that much about what the board does? Does it actually deal with that type of thing, or is there an ability, through the board, to talk within the ministry, to send recommendations on some of these things where there is a potential hazard in the case of so many axles? We're out of step with the rest of North America; everyone else allows two to three axles and we're allowing five or more. I'm just wondering if there's an ability through that board to have any impact on the ministry.
Mr Trialonis: I would say that they should at least recommend something to the minister, to take some kind of action if that's the case.
Mr Waters: It may not be as easy as before, because as we all know, the trucking industry has been deregulated, but even at that there has to be a regulation somewhere as to when to say, "Whoa."
Mr Trialonis: Yes, I think so. We need to make a research, and if we see that those trucks are destroying the roads or the streets, then we can recommend to take action. First of all, it's the word "research." We have to make -- oh, I'm sorry. I can't find the word. We have to examine the case, the particulars of the case, and be very sure about our recommendation to the minister.
Mr Waters: You talked about tourism and transportation, and I think that as tourism evolves within this province and indeed within this country, we are going to end up with more and more offshore tourism, which means buses and other modes of transportation in order to move those tourists about. Do you have any feelings on what we should be doing within our transportation system in order to prepare it for the future of tourism? Once again, because of your being part of a tourism background, how can we prepare the roads, maybe our communities or something, to make them more user-friendly for our tourists who will be coming?
Mr Trialonis: I think one very important aspect here is the safety of the roads. We have to make our roads and streets very safe. Also, we have to make the schedules and connect the different cities and different historical -- because tourists like to visit historical places -- make the connections between those places more frequent and do something about the timing, the time that the bus leaves and the time that the bus comes back, to be very precise. I think as well, and this is good, the attitude of the people who operate the buses is very good in Canada, and that's a very nice thing. They are very polite; they are helpful to the people.
Mrs Witmer: I was going to ask you what experience you've had in the past as an adjudicator.
Mr Trialonis: I worked for the Greek National Tourist Organization.
Mrs Witmer: For which tourist board?
Mr Trialonis: The Greek National Tourist Organization here in Canada. It was a committee -- actually it was operated under the assistance of the Greek government -- and we were working there, 10 or 11 people, and we exchanged ideas, what to do in order to promote Greek tourism in Canada. We had to take decisions about where to advertise, what shows in which to participate, and all those should be answered with why: why we should take part in a particular show or why we should advertise on a particular TV show. I think that's very important to a board, if the person who participates there knows how to relate why and what -- what has to be done and why -- what are the implications of having a certain decision, what's going to affect and how it's going to affect the people and everything. I think that's my experience.
Mrs Witmer: What type of familiarity do you have at the present time as far as the busing industry is concerned; that is, the local busing industry, the extraprovincial busing industry?
Mr Trialonis: Well, my experience is limited for the transportation, but as I mentioned before, I'm a fast learner, I'm a hard-working person, I know how to cooperate with people, I take advice, I'm objective and I count on my qualities that I'll manage to do a good job.
Mrs Witmer: Why do you want this position, then?
Mr Trialonis: To get the experience from the other people and also to try and offer something with my limited knowledge. I think that everyone has to offer something.
Mrs Witmer: Okay. I guess what I was saying was, what motivated you to apply for this position?
Mr Trialonis: It's a challenging position for me. I like challenges. I like to know more; I like to be involved in the communities.
Mrs Witmer: How did you become aware of this position?
Mr Trialonis: From a friend of mine, who said: "I hear that they're asking for a person there. Why don't you go and apply? I think you've got the qualities."
Mrs Witmer: Thank you, and I wish you well.
1100
The Chair: Thank you, Mr Trialonis.
If Mr Waters comes back in -- we have two things: We have a subcommittee that I thought we could do, but right now we don't have any of the subcommittee members here. So I think what we will do is --
Clerk of the Committee (Ms Lynn Mellor): Make the motion?
The Chair: I think we have to wait till we have some members back to do the motion.
All right. We need a motion dealing with Mr Sapard Kalala as an appointment as member to the Ontario Film Review Board and Mr George Trialonis as a member of the Ontario Highway Transport Board.
Mr Waters: So moved, Madam Chair.
The Chair: Mr Waters has moved both those appointments. All in favour? That motion is carried.
DRAFT REPORT ONTARIO HUMAN RIGHTS COMMISSION
The Chair: Now we will move to the finalization of the Ontario Human Rights Commission report, the review that has been done by this committee. As you know, we did work on the report last week and there were some very significant suggestions made by you, the members of the committee, and we also identified there were some areas where earlier in the report there were options about whether or not you wanted to make recommendations that had to be addressed. The suggestion was that each caucus review that and you as members would come back this week with your recommendations.
So is it the wish of the committee that Mr Pond take us directly to where those options were and then you speak about what your preferences are?
Mr Waters: That's fine with me, Madam Chair.
Mr David Pond: The options, to put it that way, begin on page 30. What I've done here, as you will recall, as you directed initially in February, is summarize the main points made by the witnesses which you felt were relevant to the hearings and summarize their proposed recommendations. The first proposed set of recommendations begins on page 30. Your eye will quickly be drawn to the bold italics, which list the questions you want to consider as you go through this.
I might add that some of these recommendations have been responded to initially by the Human Rights Commission in a document called Commission Response to Recommendations Made to the Standing Committee on Government Agencies, which you all have a copy of. So you've already got in many cases here a preliminary response from the commission. So I'll stop there.
I can continue if you like, Madam Chair.
The Chair: I'm waiting for members to respond.
Mr Waters: So, Mr Pond, we're looking at page 30 and you said the recommendations under section 34 of the act is what you're talking about at this point?
Mr Pond: Yes, one of the recommendations, as you recall, that many of the witnesses made was that the commission use section 34 of the code more rigorously to narrow down its case load, and in the bullet points I list what section 34 empowers the commission to do.
I might add that when Ms Brown appeared before the standing committee on the Ombudsman a couple of weeks ago, she pointed out that under her tenure, which is fairly young, as you know, the commission was using section 34 more often to narrow down its case load at the preliminary stage. She argued that, in fiscal year 1993-94, the more rigorous use of section 34 had already had an impact on the commission's work.
Ms Carter: The point there is that as a general rule that six-month rule is fine, but there may be occasions when it should be waived and the commission should be free to do that. It shouldn't be a hard-and-fast regulation.
Mr Waters: Further to that, on this rule of the 12 months -- there are cases out there where, especially with recent people who have emigrated to the country and don't understand our laws, it might take them longer to bring their problems forward for a whole number of reasons.
Regardless of whether they're a recent immigrant or a person who is fourth or fifth generation, it's my understanding that what the Human Rights Commission is all about is to make sure that everyone is treated equally in the eyes of the commission. So I think that you cannot write it as a hard-and-fast rule.
The Chair: Maybe we should go down these bullet points one at a time, but you've just addressed the 12 months, so you don't wish to make a recommendation on that part.
Mr Waters: I want to remove the words "early stage of the process." I know that I've seen it somewhere in here and I found it and I can't seem to find it at the moment.
Mr Pond: With regard to a recommendation made by one of the witnesses, sir?
Mr Waters: That's probably where it came in and I'm just trying to find it. Today has been somewhat of a confusing day for me and I'm having trouble finding things.
Wait a minute. It could be back on page 17.
Ms Carter: Yes, it is page 17. There's a recommendation, "The code should be reworded to prevent the commission from dealing with a complaint filed 12 months after the date of the alleged discrimination."
Mr Pond: Here it is. It is on page 30 of the draft you probably received on Monday. The third thick bullet point: "The code should be reworded to prevent the commission from dealing with a complaint filed 12 months after the date of the alleged discrimination."
Ms Carter: What we need here is to substitute some wording which says that the commission has the discretion to deal with a complaint filed 12 months after the date of the alleged discrimination, although as a general rule it would not do so; something like that.
The Chair: Is the intent of the committee to discourage members of the public from having the option of filing a complaint after any period of time? I think that's what you have to decide.
Ms Carter: I think the point is, that as a general rule it's fine, but there might be exceptional circumstances and we don't want to close that off so that the commission could not deal with a complaint that's still seen to be valid in spite of the time that had elapsed. So we want somehow to give them the discretion.
The Chair: First of all, I think you have to decide on whether 12 months or 18 months or 24 months is the benchmark you want to use and then decide: "However, there may be exceptions and it will be at the discretion of the commission."
Ms Carter: I don't think you want to change the 12 months. That's fine.
The Chair: You agree with that?
Ms Carter: Yes.
1110
Mr Waters: What we are saying is that there is always the exception to the rule. So if you make it a hard-and-fast 12 months, those people who might be the exception would then not be able to access their rights under the law.
The Chair: So do you just want to add at the end of that sentence, then, "However, exceptions may be made at the discretion of the commission"?
Mr Waters: That would do.
The Chair: Okay. Are we going to work down page 30, starting at the top?
Mr Waters: I don't have any problem with the first bullet point. It could be more that they could refuse to deal with it if the complaint should be -- in some cases I know it deals with collective agreements and things like that. I think that there are avenues that the person or the complainant should use to resolve a case and the commission is more a place of last resort in those cases. Try to resolve it within.
The Chair: To move to the second sub-bullet, "The subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith," obviously the first person who hears that complaint has to interpret that, has to make that decision. I'm just wondering if, under clause 34(1)(b), there is an appeal of that. I may have a personality problem with the first person who hears my case, and say, "That's trivial," or "You're not doing it in good faith," and that's their single opinion.
Mr Waters: It's my belief that they have the right to appeal the decision.
The Chair: They have a right to appeal the final decision, I know. I'm wondering if at that point they do.
Mr Waters: Maybe Mr Pond could enlighten us.
Mr Pond: Yes. We go into that on the bottom of page 3. If you're the complainant and the staff, at first instance, make a decision you don't like, that's not necessarily the end of the story. Just to quote from the report here: "If the staff are unable to settle a complaint" -- for example, in this case they reject it -- "a report is made to the commission detailing the findings of the investigation. The commission has the discretion to decide not to deal with the complaint if..." and then I outline the substance of section 34. Then you go to page 4: "If the commission decides not to deal with a complaint, it must notify the complainant in writing and advise him or her of his or her right under section 36 of the code to apply to the commission for a reconsideration."
The Chair: That answers that, then. So does the committee then agree with the first bullet point on page 30, including the four sub-bullets?
Mr Waters: The last bullet point does amend it.
The Chair: Oh, wait a minute.
Mr Waters: Along by the exceptions.
The Chair: The fourth sub-bullet is now in contradiction to the one we just agreed on, isn't it?
Mr Pond: Yes and no. As I mentioned earlier, Ms Brown has already responded to this particular recommendation in the Ombudsman's committee. You could change this quite simply, frankly. The first line could be changed to read, "The commission should be `encouraged'" and that essentially covers the ballpark. If you say "required," you're essentially fettering their discretion, which I'm not sure you would want to do. You might want to consider the implications of directing a quasi-judicial commission to hear certain cases certain ways. If you put "the commission should be encouraged," you're essentially fitting in with existing policy under Ms Brown, because what she told the Ombudsman's committee a couple of weeks ago is that the commission is now invoking the section more rigorously under her leadership. If you put, "The commission should be encouraged," and not "required," which is what one of the witnesses said it should be, you're essentially endorsing her efforts.
Mr Frankford: This, in the document, is saying what witnesses have said --
Mr Pond: Yes, precisely.
Mr Frankford: -- and we're really going down to the bottom, maybe, to make a position. We're not going to ask that they change what they're empowered to do right now, so I suppose we're supporting what they can do right now.
The Chair: So do you want the words to say, "should be encouraged," then, instead of "should be required"?
Mr Frankford: What did the witnesses say?
Mr Pond: They're saying it should be "required."
Mr Curling: Who said it should be "required"?
Mr Pond: Some of the witnesses who addressed this issue.
Mr Curling: I think if the witness said it should be "required," it should be "required." It's rather sad to know they had to say that, but it is said, "The commission should be required to invoke." That's their requirement, as a matter of fact; they should be adhering to the Human Rights Code.
Mr Frankford: They're saying they should invoke it more rigorously. They were suggesting ways in which the process could be speeded up and there would be --
Mr Curling: So in other words, rigorously.
The Chair: I think the point is, if the code exists, we either support it or we don't. I think what this statement is saying is that the code exists; the commission should meet the requirements of the code.
Mr Waters: I guess the reason why I would say to change it is that in some ways we're dealing with a group of people unlike we deal with in other areas of government and the Legislature, and indeed the Human Rights Commission deals that way. We deal with, in a lot of cases, the most vulnerable people in our society.
I would hope that we try to keep the Human Rights Commission to a point where a person can walk in off the street without a lawyer and a multitude of support and be dealt with fairly and feel that they've had a fair hearing and a fair outcome. If indeed you start to become demanding and taking some of the flexibility of the commission away, then they lose the personal touch, I guess, is what I want to say. I would hope that the Human Rights Commission gives every person who comes into it with a complaint the personal touch, sits down and hears them out, because a lot of these people, it might be their first time that they deal with any judicial body or semi-judicial body or anything of that nature.
Therefore, I would have trouble if we indeed get too forceful with the commission. I think it needs flexibility; I think it's very much a living commission that has to deal with each individual as an individual.
Mr Curling: My feeling is that if the presenters had said that it is to be required, encouraged, it doesn't matter to me, just that we place what they say. If they don't want to say it to be encouraged or required, it really doesn't matter.
The Chair: I'm looking for what you want it to say.
Mr Waters: I would move that we change, in the first line, "to be required" to read "to be encouraged to invoke."
The Chair: Does everybody agree with that?
Ms Carter: I know we've already discussed the one about 12 months, but just looking at this again, I think if we cross that out, then the rest would be probably okay.
The Chair: Wait a second. I'm only dealing with the first major bullet right now. We're dealing with the first sentence.
Ms Carter: But that kind of covers the rest.
The Chair: After you decide whether you want "encouraged" or "required," I then would like you to tell me what you want in the fourth sub-bullet, which says "six months," whereas further down, in the third major bullet, it says, "12 months."
1120
Mr Frankford: It seems to me that these bullet points are what has been suggested by witnesses. That's them and that's not us. We are, I think, dealing with what the committee is saying and Mr Pond asks the question at the bottom of the page for us to respond to. We're trying to have some wording as far as a recommendation, which I think, if I get the sense of what people are saying, is to provide some sort of balance between saying, "Yes, it should be required," which is thought to be too harsh because that could be very impersonal and too severe, or the other extreme, to say, "Yes, we don't want to change the act and these bullet points are in it currently and we don't see any need to change it."
The Chair: I think maybe we're getting into a bit too much of semantics here. The purpose of the review was because everybody's concerned about the backlog, and as it says in the previous paragraph, you're looking at ways "to help the commission better manage its case load in the future and to encourage the commission to respect the limits of its jurisdiction." I don't think there's any disagreement with you on that and I think what you're trying to do here is give some direction to the commission about how it can meet the requirements of dealing with its case load. What you're simply saying is, under certain circumstances maybe if they invoke section 34 they can get on with their case load better because their case load will be defined more clearly.
Mrs Witmer: I think we're starting to second-guess the witnesses. People did come in and everybody talked about the backlog at the commission and the fact that the case load was not being dealt with efficiently and within a short time frame. I'm very comfortable with the wording here, that they need to be required to invoke that section more rigorously. This is the only way that we're going to get that backlog under control. Also, it at least gives them some direction as to what they are able to do, because this commission is not functioning the way that the public in Ontario would like it to function.
The Chair: We do have a motion. Mr Waters moved that page 30, first bullet, changing the word "required" to "encourage." So the motion is to change the word from "required" to "encouraged."
All in favour? Okay. So we'll leave it as "required."
It's too bad we didn't number these. Let's number them. The major bullets are going to be 1, 2, 3, 4, 5, and then we'll just count the others as --
Mrs Witmer: A, B, C, D?
The Chair: Yes, let's do that. So 1(d) is in conflict with number 3, is it not?
Mr Curling: Wait a second. "The commission should be encouraged" is 1. Is that it?
The Chair: We've agreed to the wording on bullet 1. Under bullet 1(d), where it says, "the facts upon which the complaint is based occurred more than six months before the complaint was filed," I'm simply saying to you: before you approve that, look at bullet 3, which is dealing with 12 months. I think you've got to decide which you want.
Mr Frankford: Are we not going to leave the bullets as is, because that's what's been suggested by outside witnesses? Are we not trying to get some text of the opinion of the committee about these recommendations? We can note that 3 is apparently at variance with 1(d).
The Chair: Okay. Mr Pond doesn't interpret it as a conflict, which I was doing.
Mr Pond: Well, 3 requires the code to be reworded, so that would require, as Ms Brown pointed out in her response, an amendment through the Legislature. So the question here is, do you want to go to that extent?
Recommendation 1 simply asks the commission to change the way it operates, period. Recommendation 3 will require the government to move an amendment to the code in the Legislature, so recommendation 3 is going one step further. You could adopt both if you wanted, but number 3 would require an amendment to the code.
Ms Carter: But even under 1(d) there might be people who for some reason don't file because they aren't aware of their rights until some time has elapsed, so I would be worried about that one.
Mr Waters: Might I suggest that (d) and 3 should match? We've already had a previous discussion on how we would like to change 3 that would allow for those exceptional cases that wouldn't tie the hands of the commission not to deal with an exceptional case, and I think we had some wording on that a few minutes' back. If you wanted to eliminate (d) and deal with it solely under 3, it's another alternative, I believe, isn't it?
The Chair: I think so.
Mr Waters: Why don't we just do that? Eliminate it, because you're saying the same thing.
Ms Carter: We've got six months and 12 months.
Mr Waters: Yes, so let's eliminate the six-month one.
Ms Carter: There's such confusion in here.
Mr Curling: Maybe the lawyers can define for me the difference between the facts upon which the complaint is based that occurred more than six months to the other wording, "The code should be reworded to prevent the commission from dealing with a complaint filed...." Is there a difference between the facts?
Mr Pond: No. The first one, (d), is legal language lifted directly from the code, and 3 is simply language recommended by a witness.
Mr Curling: Okay, so (d) is recommended by a witness.
Mr Pond: No, 1(d) is the language lifted from the code, clause 34(1)(d) --
Mr Curling: Oh, I see.
Mr Pond: -- and recommendation 3 here, as we've numbered them, is a recommendation lifted from the witness's testimony.
Mr Curling: But you said to us that the (d) one doesn't take any change in the code.
Mr Pond: No, all that recommendation 1 will require is for the commission to more rigorously invoke an existing clause. Recommendation 3 would require an amendment to the code.
Mr Waters: So what we want to do is keep (d) and eliminate 3. Okay.
The Chair: First of all, you don't want to change the code in number 1, so you might as well leave it as it is. Then when you move to 3 that's another decision. You were saying earlier that you support 3 as long as there is an exemptive opportunity for the commission in certain circumstances. So why don't you just say that? Why don't we just say in 3, "after the date of the alleged discrimination," whatever the wording was I said earlier, which was, "Under certain circumstances, an exemption may be considered"?
Mr Waters: At the discretion of the commission.
The Chair: At the discretion of the commission.
Mr Frankford: Shouldn't this be in a new sentence in which we, the committee, are commenting on these bullet points, "The committee agreed with bullet point 3, but expressed" whatever reservations?
The Chair: Okay. Let's do that. So we've approved 1 and 3. Do you approve 2, 4 and 5?
Ms Carter: The undue hardship one?
The Chair: Let's deal with 2, if you're going to discuss them individually. "The Legislature, and not the commission, should be responsible for adding new grounds to the code."
Ms Carter: That's fine.
Mr Waters: That's fine.
The Chair: Okay. Number 4: "Where the complainant has settled the subject matter of the complaint, he or she should not be allowed to initiate a complaint under the code." Isn't that common sense?
Ms Carter: Yes, that's fine.
Mr Waters: That's fine.
1130
The Chair: Okay. "(5) What constitutes `undue hardship' in accommodation cases should be clearly articulated in regulations." That would be regulations in the Landlord and Tenant Act and I'm assuming --
Mr Curling: It's regulations.
The Chair: -- regulations in all the provincial statutes that apply to accommodation.
Mr Waters: I know, because I was particularly interested in disabled accommodation, even within our own Ministry of Housing, and I'm talking with the minister on coming up with some sort of standard, because what we're doing is that we're creating disabled suites that don't really have any standards across the province. You have some who have access by a phone and others who have access by a wall unit in order to let people in the front door of the building. You have situations where most of them have nothing for the deaf. They're only for the physically disabled confined to a wheelchair. It doesn't take in other people and their disabilities. All that has to be incorporated into these suites eventually.
The Chair: So number 5 supports your concern.
Mr Waters: Yes.
Ms Carter: I'm wondering if we should give further consideration to this, because there's a danger with defining this thing that you can sometimes narrow things, reduce eligibility by being too rigid. We need to be sure what we're doing.
The Chair: But at least to articulate "undue hardship" in accommodation cases in regulations would be a beginning, if it's not defined anywhere now.
Mr Curling: I have no problem with that. I just want to know what regulations we're talking about. Is it all regulations in all jurisdictions that depict undue hardship, or is it the Human Rights Code regulation?
Mr Pond: The complaint by witnesses behind this is summarized at the first bullet point on page 28. The argument you'll get from some of the witnesses, landlords, for example, and employment lawyers is that the commission's interpretation on the duty to accommodate an individual's disability under the code with reference to employers, landlords and service providers is extremely generous. To read you the last line, "By adopting such a high threshold for undue hardship, which employers will have difficulty meeting, the commission multiplies the number of complaints with which it will have to deal."
The argument you get from these witnesses is that this kind of interpretation should be clearly written in a regulation which the government of the day has promulgated and should not be left to the discretion of the commission. This is one of the ways, so argue the witnesses, that the commission in effect expands its jurisdiction, by adopting liberal interpretations of the relevant sections in the code and multiplies the case load.
Hence, the argument is that whatever standard the government adopts for undue hardship, it should be set by the government of the day and not --
The Chair: Then what you're saying is, so everybody knows what the ground rules are --
Mr Pond: Yes, precisely.
The Chair: -- the government knows, the public knows, and the public being the employer in some cases, the landlord in some cases and the client. That does make sense, to have the rules established so that people can't change them for their convenience, an employer or a client. If we, as a committee, hear there are problems with those regulations, then that's something we can take issue with in the House, in the Legislature.
Mr Frankford: That was my sense, that regulations really meant the guidelines that the commission operated under would be made clear in advance, and I guess regulations can always be changed as time goes on, but that the commission, as Mr Pond said, wouldn't be able to keep on expanding the definitions.
The Chair: We had better define whose regulations these are by saying the regulations --
Mr Pond: Promulgated by cabinet?
The Chair: But they're the regulations for the enforcement of the code, is what I'm pointing out.
Mr Pond: Oh, I see what you mean.
Mr Curling: But they're saying in accommodation cases and I think what they were referring to here was maybe in housing, landlords and all that.
The Chair: Right.
Mr Curling: We don't know if it's in the hospital, we don't know if it's the workplace.
The Chair: It's accommodating people, so it may be accommodating them in their workplace.
Mr Curling: Yes, but when they were making reference here it was in regard to landlords.
Mr Pond: I'll clean that up. I see what you mean.
The Chair: David is going to clean it up and make --
Mr Pond: More succinct.
The Chair: -- the regulations be a ground rule for OHRC to operate under.
Mr Curling: Yes.
The Chair: Okay.
Mr Curling: Not only OHRC, you know.
Mr Waters: It'll come back to us anyway, Alvin.
Mr Pond: Yes, you'll see everything again.
The Chair: We weren't going to see everything again. We were going to try to finalize it today. I think David knows what it is that you're saying. Do you want to authorize me to approve the wording after David's done it? We can phone you on that one, if you like.
Mr Curling: We want to finish this today?
The Chair: We do, because even now it's doubtful that we can get this report --
Mr Waters: Get it to the House.
The Chair: We want to get it tabled in the House and we've done the other two. We have to table them all altogether. The other two have been translated. This one has to be finalized and still translated and we still want to try to get it tabled.
Clerk of the Committee: Otherwise we'll be tabling it during the recess with the Clerk. It will be released as soon as it's ready.
The Chair: Yes.
Clerk of the Committee: It might be the first or the second week in July.
Mr Waters: David has a fairly good idea of what we're trying to say. You haven't failed us a lot yet.
The Chair: David would like to send it to you all.
Mr Pond: I'm just asking the clerk. What's the routine?
Clerk of the Committee: If they're comfortable and you're comfortable with it, fine, otherwise perhaps maybe you could authorize Margaret to peruse the final changes that he's done, if you're comfortable with that.
The Chair: I don't know. Everybody has fax machines.
Mr Curling: Could we have her do this instead of meeting? In other words, David has done it and sent it to us and said those who will be responding have 48 hours to respond.
The Chair: Yes, I think we should just whistle it out to your fax machines.
Mr Curling: Yes, and then we whistle it back, and if you don't see it, you run.
Clerk of the Committee: Just the changes.
Mr Waters: Just the changes, if we have any.
The Chair: I think in fairness you should be able to respond in a day on that.
Mr Waters: Yes.
The Chair: I'd rather you did that. I don't mind the responsibility. I just don't want to not approve something that you're not happy with.
Clerk of the Committee: If there are any questions, what do you want to do? Circulate the changes that may have been suggested by one party or another?
Mr Waters: Yes, that sounds fine.
The Chair: My guess is that David will get it right the first time.
Ms Carter: I think the idea is that there are broad guidelines which would probably be in the legislation and then we've got the more precise interpretation of very specific things, which would be regulations.
Mr Pond: Yes, I think that's it exactly.
Ms Carter: Okay.
Mr Pond: The code is fairly broad, as you know.
The Chair: Okay. I think we're now at the top of page 31.
Mr Pond: This is the big one, to put it crudely, the right to a hearing. The issue here, as you recall, is that many of the community groups that appeared before the committee would like to see a complete change in the way complaints are processed, whereby complainants could go directly to a hearing and circumvent the commission entirely. It's basically summarizing the second paragraph here, starting with, "ARCH and CERA argue that...." and following. That's the major thrust of the argument you'll get from those kinds of witnesses.
Mr Waters: My response to it is no, there is a process. My rationale is that all you're going to do is create a backlog in a different place. The idea is to deal with the problem and the best and most efficient way to do it is to deal with it early on.
The Chair: And go with the process. So we don't want a recommendation on that.
Mr Pond: Just a clarification: Should I leave this out entirely then or should I argue --
Mr Waters: What I'm saying is, no recommendation.
Mr Pond: So I'll just leave out this issue.
The Chair: You might want to make a statement, such as you've just said.
Mr Pond: If that's what you want me to do, okay.
Ms Carter: We just want no recommendation. Just leave the recommendation out.
1140
The Chair: What I'm hearing is that you might want to reinforce the fact that you heard this presentation, but your decision is that there is a process in place and you want that process to carry on.
Mr Curling: No, I have a different idea. I think it should remain in here as it is. What we were doing previously was to make the process more efficient. We felt that some of the things we have recommended to the minister, if that is being done, would help the frustration and delays. Therefore, it would not necessitate going straight to hearings.
In other words, they're saying, "We're so frustrated with the backlog, we want to go straight... " We're saying: "We have looked at this report. We have tidied it up in some respects. Hopefully, they will follow that. It would not necessitate your bypassing the process." So I would say keep it and say that we want to put a bit of confidence in what we have amended here for the report. When that is done, we don't need to bypass the process.
Mr Waters: That's much the same as what I said.
The Chair: That sounds good.
Mr Curling: I just don't want to ignore CERA --
The Chair: No, I think their comments should be there, but what I'm saying is --
Mr Waters: Our response to their comments is that we do not recommend this and these are the reasons why.
The Chair: At this time.
Ms Carter: A lot of complaints are settled before they get to the board of inquiry and we don't want to stop that from happening. It just builds another backlog.
The Chair: I think that sounds good.
The next one: We're going to have to move our little selves along here.
Mr Pond: The next one was recommended by Mr MacKillop, an employment lawyer, and Mr Shell, the Canadian general counsel from the Steelworkers, two people with different perspectives, essentially arguing that the expedited hearings process under the Ontario Labour Relations Act could be adapted to the Human Rights Commission.
I should point out that in the commission response to recommendations made to the standing committee, the document prepared by the commission in response to all the witness testimony, on the bottom of page 13, the commission opposes this recommendation. The commission essentially argues there really is no parallel between the processes under the Ontario Labour Relations Act and the processes under the code, that they're two completely separate processes.
In particular, under the code, the investigation by the commission officers has to be complete before you go to the next step. Under the expedited hearings process under the Labour Relations Act, you can essentially jump the completion of the investigation and go right to an expedited hearing. The commission argues that's undesirable in the case of human rights complaints because, for example, not all the evidence might be filed, if you jumped to a hearing without completing the investigation first, and that can lead to injustice down the line or a bad decision, if you like, down the line.
I thought I'd fill you in there. That's likely to be the commission's response if you adopt this recommendation.
Mr Waters: As a person who came out of the labour movement, I used to use that quite frequently because of that exact reason. If I thought I had my paperwork together and the people opposite didn't, I would jump. Therefore, I would be prepared and they aren't. In the case of human rights, when you're dealing with individuals, as I've said before, let's keep it human. These people don't have unions or large organizations behind them all the time when they're coming forward. Let's keep a human face on the commission.
The Chair: Do you want to leave this in without a recommendation?
Mr Waters: Yes. I think we should leave that as is.
The Chair: Okay.
Mr Pond: Should we include what you just said, sir, the summation about -- you're going to get this back --
Mr Waters: You can if you want; Brian'll beat up on me, but that's fine. He and I have disagreed before.
The Chair: How come you call everybody else "sir"?
Mr Pond: I don't call you "sir".
Mr Curling: It's his military upbringing.
Mr Pond: Moving right along, the next one is a recommendation by Mr Juriansz and Mr MacKillop, and it follows from the previous page's recommendation about the right to a hearing. They argue that it's simply impractical to give everybody a right to a hearing. A sort of a halfway house, if you like, would be to strengthen the pre-hearing conference procedure the commission is already using. The middle paragraph here explains the background to that particular recommendation.
Going to the commission response document on page 5, number 12, essentially what they're arguing is that they already do this to a greater degree than they used to. Under Ms Brown they are making greater use of the pre-hearing conference procedure, and they point out in their response, "Pre-hearing conferences on cases that have been referred to a board of inquiry are currently showing in excess of a 50% rate of success in resolving cases prior to the actual convening of the board of inquiry."
I should add, to be honest, the difference between what the commission is responding to and, if you look at the fine print here, what Mr Juriansz is saying halfway down this middle paragraph, "The investigating officer should have the power at this early stage to review the complaint, make a finding and issue an order," that would be a substantive increase in the power of commission staff at the pre-formal complaint stage, so what he's arguing is a significant difference from what the commission under Ms Brown is actually doing.
Mr Curling: I have no problems with that. I know it's a substantial change. The good thing about that is if any party's unhappy about that, like the complainant, they can then go to the complaint. In other words, you're right, it empowers the person at the lower standard, the standard below the commissioner, and the officer can make that decision. If the complainant isn't happy with that, then they can go up. But I think a lot of things could be settled at that level.
Mr Waters: My only concern is that I would want to make sure that the complainant -- well, either party -- could move forward, that if that decision is made there, there is an opportunity for either party to move forward with the case. One of the things a number of us commented on who have had dealings with the commission is the historic thing where they have basically played on off against the other and browbeaten both sides into submission. I would hope that when you have this, that isn't going to happen.
Mr Curling: It's there. "If either party were unhappy with the officer's finding and order, they could appeal to a board of inquiry directly."
Mr Waters: Okay.
Mr Pond: Mr Curling's quoted the relevant phrase. This would be a change in existing procedure whereby you go to the commission. Under this proposal, you could go directly to a board, so you're giving these pre-hearing investigating officers a lot of power under this recommendation. That's the gist of it.
Mr Curling: Remember, we spoke about the different commissioners before, how they are making those decisions? Let's say these officers have those powers. I think quite a few cases could be settled pretty early, and if any of the parties are unhappy, then it goes to the board of inquiry.
Mr Waters: But Mr Curling, I look at the experience, let's say, of the Workers' Compensation Board, where for some time your claims adjudicator had all this power. What ends up happening is that you end up with a larger backlog. I just don't know whether I want to give -- and to be able to jump directly from there to a board of inquiry.
Mr Curling: If they're unhappy.
Mr Waters: We just said that we didn't want to do that at one stage, and now we're saying --
Mr Curling: No, we didn't say that. If some people want to bypass all the process and say, "I don't want to go through those middle processes; I want to go straight to the board of inquiry," we're saying that if it could be settled, and maybe both parties would agree it is settled, then that's fine. Then if any of the parties disagree, it goes to the board of inquiry. I'm saying they should take a look at that.
Mr Waters: My feeling is that I like the idea of the hearing. I'd like to endorse that. I just don't know whether I want to go as far as what this is saying, when you point out these two sentences. I really think you're giving an individual a very big chunk of power to wield a very heavy stick.
1150
Mr Curling: Let me tell you this: The officers have more information maybe than the board of inquiry. They have been living with this case, they've been interviewing all those people, and when they come to a conclusion, they have a full understanding of where it's going to go. They can make the settlement then and get the agony out of those people's lives early. Settle it, and if some people are unhappy about that, let it proceed, but I'm saying that the backlog and the wait is so long, because even when they reach that stage after years and they are not happy with it, then it goes on. Make an early settlement.
Mr Waters: This is a pre-hearing. This is very early on in the process. This isn't after years; this is very early on after a complaint has been filed. We just dealt with the fact that if it's frivolous or anything, the commission should have the right to dump it. I think that's taken care of there. I really don't think that I can support these two lines in here. Being a person who has been through this process within labour, you can resolve a lot of those types of pre-hearing things and you don't have to have that heavy stick. They don't have that stick. You don't need that.
Mr Curling: I don't want to belabour it. It's like discoveries. Many of these cases go to court. Wives and husbands or separated people sit down and work it out, and sometimes it saves the court, saves the agony, because there are professional people sitting down making those decisions. I'm saying this could be done too, but again I don't want to belabour it.
Mr Waters: I'm not disagreeing with you. That is done without the power that is issued in those two sentences two thirds of the way down that paragraph. I believe that you can still do exactly what you're saying and eliminate those two sentences, which I think will be problematic and will not actually be proactive at all but in fact work in the opposite direction. What you will end up doing is that instead of people coming to an agreement, you're going to have people get their backs up and they're going to fight the case for ever, instead of sitting down and trying to come to some sort of agreement.
Mr Curling: What are we deciding? Are we prepared to endorse this recommendation or not?
Mr Pond: One way to change it, if you don't like the offending sentences, is simply to change the phrase "board of inquiry" to "commission." "If either party were unhappy with the officer's finding and order, they could appeal it to the commission," which would not require any change to the code. It does reflect something like the commission's current practice which is to give more power.
Mr Waters: I don't have any problem with them making an order as long as the person has the right to go back to the commission. To circumvent the rest of the process is a problem. If you were to change it to read that, I think we can live with that.
Mr Curling: It's not circumventing the process, because it's going through that process. We're not circumventing it. But again, as David said, if they want to appeal to the commission after that, that's fine.
Mr Pond: The next one is another of the major recommendations. Many witnesses pointed out that the backlog extends to the board of inquiry stage. We're now at the bottom of page 32 and the top of page 33.
Mr Juriansz, who is a practising lawyer in this field, recommended that essentially the time had come in Ontario, in the 1990s, where the board of inquiry under the code should be full-time and staffed by full-time professionals. As you know, right now the boards are part-time, ad hoc bodies. They meet when they're needed, when the board members can find the time in their schedules. His argument is that it's long past the time when, under the code, the board of inquiry should be a full-time institution. He draws a parallel with the Ontario Labour Relations Board which has, according to Mr Juriansz, 50 full-time adjudicators operating out of a bank of hearing rooms on their own premises.
The Chair: Or the Ontario Highway Transport Board that we had earlier this morning. It's kind of ironical that that's full-time and yet dealing with human rights isn't.
Mr Pond: Mr Juriansz argues the code's out of date at this point.
The Chair: That's not an opinion from the Chair; it's just an observation.
Mr Waters: I believe that what is going to happen, and I'm looking back in my notes, I believe that somewhere in my notes I have something on the fact that what they're looking at doing is bringing the Pay Equity Commission, the Human Rights Commission and the Employment Equity Commission and having full-time --
Mr Pond: No.
Mr Waters: These people would be crossed and that would be enough to keep them going full-time.
Mr Curling: It sounds like my speech. It sounds like what I was recommending about bringing the equity commissions together, but in this situation here, I fully agree we should have full-time members of the board.
Mr Pond: Sir, that is addressed in the last two paragraphs on page 41. What Ms Ziemba pointed out in her speaking notes, which are now going to be attached to the report, if you recall, was that the administrative infrastructure of the Pay Equity Hearings Tribunal, the boards of inquiry under the code and the new Employment Equity Tribunal, would be merged for various reasons, but that doesn't speak to this issue of whether the part-time, ad hoc boards under the code should become a full-time institution. She didn't address that in her speaking notes.
Ms Carter: We support this.
Mr Waters: But we support it.
Mr Pond: Pardon me?
Mr Waters: Because of all those things, I think we support that.
Ms Carter: Of course, there is an administrative merger going on.
Mr Pond: Yes.
Ms Carter: That should help with it too, the pay equity board of inquiry and Employment Equity Tribunal.
Mr Frankford: It seems to me that this recommendation for full-time boards is supported by the committee.
Mr Pond: Okay. The next one, the suggestion thrown out by Mr Lou Ronson, who is a former vice-chair of the commission, he argued that one way of dealing quickly with the backlog would be to establish sort of a separate panel. He calls it the equivalent of a Small Claims Court. This is the bottom of page 33. A separate panel would sit daily to adjudicate selected cases of lesser importance to the public interest, and that would be a way of bringing down the backlog fairly expeditiously. The tribunal would sit, hear the evidence and make a decision. That was just his suggestion.
The Chair: I have a concern. We still have five recommendations to look at and the House is going to sit next week. I'm wondering whether you wish to try to complete these five today, or do you want to do it next Wednesday at the regular meeting of this committee.
Ms Carter: There's nothing already scheduled for that time?
Clerk of the Committee: No.
Ms Carter: It might be as well.
The Chair: It's taking more time than we anticipated. Next Wednesday, our regular Wednesday morning meeting because the House is still sitting next Wednesday; the date would be the June 15.
Mr Waters: I agree, Madam Chair. It's taking a bit more time than expected. One question I would have is, all that we've agreed to, in order to get this into the House, can we then agree that we --
The Chair: Yes.
Clerk of the Committee: With it going next week, you're not going to get it in the House. It'll be tabled when the House has recessed. Probably, I would think, by the time the translation is done and the printing, we're now looking at the first or the second week of July. It'll be tabled but not in the House. It'll be tabled with the Clerk, in that process. It won't wait until October.
The Chair: So we won't lose our jobs.
Mr Waters: Oh, okay. What you're saying is that we should pick up next week on page 33 --
Mr Pond: Page 34.
Mr Waters: -- with Mr Lou Ronson?
The Chair: That's right.
Mr Waters: Okay.
The Chair: You'd still like that wording sent to you ahead of time.
Mr Waters: Yes.
The Chair: Then you can just say next Wednesday whether you're happy or not.
Mr Pond: The usual way we do things. I'll rewrite this for next week's meeting.
The Chair: All right. There is going to be a subcommittee meeting and this meeting now stands adjourned until next Wednesday. Thank you for your attendance.
The committee adjourned at 1158.