As someone who works for the Canadian Labour Congress and who has been a member of the Ontario Federation of Labour Human Rights committee for over a decade, I quite understand the positioning of Michael Bryant and the provincial government on changes to the Human Rights Commission and the Code under Bill 107.

The labour movement in Ontario has been lobbying for changes to the Human Rights Commission for many years. There is no question that the current system for resolving violations in Ontario is in need of reform, with two primary problems:

A delay in the process with some investigations taking over a year to be assigned.

The fact that some complaints are dismissed without ever being referred to the tribunal, when it is believed they do not need to be.

Bill 107, as it is presented, seemingly alters the process of resolving human rights complaints, stripping the commission of its responsibilities and transferring the entire system to the tribunal.

What Bill 107 takes away:

• It removes the right to choose whether or not to participate in mediation.
  
  
• It removes the right to have a complaint made in good faith investigated by a commission staff person, whose job it is to do those investigations and who has extensive rights to obtain evidence and the co-operation of witnesses.
  
  
• It removes a complainant's right to have legal counsel assigned (by the commission at no cost to the complainant) to a case which is referred to the tribunal.

What Bill 107 imposes:

• It gives the tribunal the ability to make rules allowing it to dismiss cases without a hearing without appeal.
  
  
• There is no guarantee that the same delays facing the commission will not be reproduced at the tribunal level. And when a hearing is held, complainants will have to investigate their own cases and get their own evidence without the assistance of a commission investigator.
  
  
• This, of course, then leaves questions around the ability of applicants without sufficient funds to hire a lawyer to present their case.
  
  
• And there are also questions around whether or not user fees may, at some point in the future, be charged to use the system.

What should happen:

There should be an assurance that all individuals (unionized and non unionized) have the right to opt for an Ontario Human Rights Commission public investigation and prosecution of their complaint.

There should be a guarantee that a publicly funded lawyer is available to represent complainants at the tribunal (whether that is through a commission staff person or failing that, a community-based organization advocate.

There should be some kind of assurance that the tribunal cannot dismiss a case without a fair hearing of some kind.

The provincial government must strengthen, not weaken the commission's enforcement powers and role to monitor and enforce tribunal orders.

It should ensure that all "direct access" complaints are heard within 90 days of filing.

It should ensure that the legislature as a whole, must approve any government decisions on the funding of human rights enforcement and services.

It should ensure that, in every case, the commission advocates for the public interest and for public interest remedies.

It should ensure that the public has prior notice and an open and accessible opportunity for input into any changes in rules or regulations made to the Code (as is the case with the Accessibility for Ontarians with Disabilities Act.)

It should make the commission and the appointment process for members of the tribunal meaningfully independent of the government.

And, finally, if the commission's mandate, power and funding aren't entirely preserved, to amend the Accessibility for Ontarians with Disabilities Act 2005 to establish a strong, effective, independent enforcement agency to enforce the act, including a mandate to receive, investigate and prosecute discrimination against Ontarians with disabilities.

In the great words of J.S. Woodsworth, "what we desire for ourselves we wish for all."

No one is saying the system doesn't need some changes, but those changes need to come with some assurances. All Ontarians deserve a human rights commission that works and works well for them, with options and actions that are
accessible and supportive to reach acceptable resolutions in a timely manner.

Sandi Ellis is a resident of Kitchener and a southwestern Ontario regional representative for the Canadian Labour Congress.

Published May 29, 2006 in the Waterloo Record

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