This Fact Check is an attempt to help ensure that public discussion and debate on Bill 107 is based on accurate and complete facts.

 

GOVERNMENT STATEMENT:    When introducing Bill 107, Attorney General Michael Bryant stated: “Today, with this bill, we would add a third pillar to the human rights system: full access to legal assistance. We would establish a new human rights legal support centre to provide information, support, advice, assistance and legal representation for those who are seeking a remedy before the tribunal.” [i]

FACT: 

• It is vital that all complainants have effective legal representation before the Tribunal.
• Bill 107 doesn’t establish any Human Rights Support Centre
• Bill 107 doesn’t guarantee discrimination victims legal representation, it only provides the Attorney General the ability to make agreements to pay organizations to give legal advice or representation.
• Bill 107 doesn’t require the Attorney General to make any funding agreements or spend any money.
• Even if the Attorney General agrees to fund an organization for legal services, under Bill 107 he or she can later withdraw that funding without notice or Legislative approval. [ii]

 

GOVERNMENT STATEMENT:    Bill 107 strengthens the Ontario Human Rights Commission. Attorney General Michael Bryant stated: “The Human Rights Code Amendment Act, 2006, if passed, would strengthen Ontario's human rights commission.” [iii]

FACT:

• Bill 107 takes away the Commission’s key investigation powers

• Bill 107 reduces the Commission’s power to initiate its own human rights complaints
• Bill 107 eliminates the Commission’s role as public prosecutor at all Tribunal hearings
• Bill 107 seriously weakens the Human Rights Commission

 

GOVERNMENT STATEMENT:    Attorney General Michael Bryant stated: “[The Commission] would have the ability to intervene in or initiate complaints on systemic issues affecting the public interest before the tribunal.” [iv]

FACT:

• Bill 107 doesn’t give the Commission the right to intervene in human rights cases that others bring before the Human Rights Tribunal 
• At most, the Commission may be able to ask to intervene
• The Tribunal can always say no, unless the bill is amended to give the Commission the right to intervene 

GOVERNMENT STATEMENT:  Attorney General Michael Bryant stated:  “The Commission will still have a critical role in resolving human rights complaints.”

FACT:

• Bill 107 takes away the Commission’s role in the resolution of most human rights complaints
• Currently the Commission signs off on the settlement of a human rights complaint providing the Commission with the ability to include public interest remedies to prevent future discrimination.  Most cases are now resolved this way. In contrast, Bill 107 excludes the Commission from most cases.

 

GOVERNMENT STATEMENT:  “[U]nder the bill, the tribunal would have the capacity to ensure that all relevant evidence is before it, and would be able to compel parties to provide this information within set time limits.” [v]

FACT:

• The power to order the production of evidence is a common power of Tribunals and is only effective when parties are sophisticated enough to know what evidence to ask for. An unrepresented complainant gets no benefit from this.
• The only way this statement can have significant meaning is if the Bill is proposing to make the Tribunal a public investigator. If so, this would cause significant unfairness. There must be a sharp separation between the public investigator that investigates illegal actions and the tribunal that receives and weighs evidence and decides the case.

 

GOVERNMENT STATEMENT: With Bill 107 “[a] new anti-racism secretariat and a new disability rights secretariat would be established within the human rights commission to ensure that Ontario and the Ontario Human Rights Commission entrench its long-standing commitment to addressing inequality in historically disadvantaged communities” [vi]

FACT:  

• This is nothing new. Both branches within the Human Rights Commission existed at various times in the past, and under slightly different names.
• Under Bill 107, they are far weaker, backed by far narrower powers.
• The proposed Disability Secretariat largely duplicates, in a weaker form, the Government’s existing Ontario Disability Accessibility Directorate.

 

GOVERNMENT STATEMENT: Attorney General Michael Bryant stated:  Ontario Human Rights Commissioner Barbara Hall is supportive of moving forward on direct access.” [vii]

FACT:

• Ontario Human Rights Chief Commissioner Barbara Hall stated: “Recent reports suggest that I support the direct access model. These statements are inaccurate. I do not support any specific system, and will not until all of the parameters are made public. Any reform must be based on international principles and involve all affected communities.” [viii]

 

GOVERNMENT STATEMENT:    Attorney General Michael Bryant stated that there is a community consensus around reform proposals in the 1992 Mary Cornish report on human rights reform. [ix]

FACT:    

• There has never been a community consensus around the proposal to eliminate the Human Rights Commission as the key public investigator and public prosecutor of discrimination complaints.
• There is significant opposition to the direction of the Government’s proposed reforms, which have been conveyed to the McGuinty Government and the Attorney General. [x]
• There are significant differences between the recommendations contained in the Cornish report and the provisions of Bill 107.  Support for the Cornish report cannot be equated with support for the current government proposal.

 

GOVERNMENT STATEMENT:   Attorney General Michael Bryant said it takes an average of five years to resolve a human rights complaint. [xi]

FACT:

• While there is a backlog that needs to be addressed, the Government’s own statistics disprove its claim that it takes an average of five years to resolve a complaint:

In 2004-05, of the 2,399 cases filed with the Commission:

­        2,117 cases were completed at the Commission: Average 12.9 months

­        143 cases were referred to the Tribunal: Average 27.6 months

­        An additional 27 cases were sent to the Tribunal after a reconsideration by the Commission of a previous decision

­        Number of complaints over three years old at the Commission: 85 (3 % of 2,880 active caseload) [xii]

 

GOVERNMENT STATEMENT:   Attorney General Michael Bryant stated: under the current system, there is no legal representation to assist any human rights complainant at any stage in the human rights process. [xiii] He also stated:  “A complainant only receives legal support in the current system if they retain their own lawyer at their own expense.” [xiv]

FACT:

• At present, in every case that goes before the Human Rights Tribunal, the Human Rights Commission provides a public prosecutor who has carriage of the case. They present the complainant’s human rights complaint. They seek a remedy for the complainant and are mandated to also seek public interest remedies to prevent future discrimination, whether or not the complainant seeks these.
• The complainant can also bring their own lawyer if they wish, and of course, if they can arrange and afford to get one. However, the Commission’ prosecutor’s role is similar to that of a Crown prosecutor in criminal cases. They seek to prove through evidence and legal argument that the respondent violated the complainant’s human rights.
• Bill 107 would take away the Commission’s role of a public prosecutor.
• The current system is designed to allow an individual to navigate the system themselves. There should be more guaranteed supports in place. Bill 107 does not provide more support. It actually eliminates all guaranteed support.

 

GOVERNMENT STATEMENT: Attorney General Michael Bryant stated Bill 107 will ensure that everyone who files a human rights complaint will get their “day in court”, a hearing before the Tribunal.  He said his bill responds to the criticism that under the current system, the Human Rights Commission can decide a complaint won’t proceed and that there will be no hearing. [xv]

FACT:

• Bill 107 doesn’t guarantee that each human rights complainant will get a hearing before the Tribunal. To the contrary, s. 41 of bill 107 provides that the Tribunal can dismiss a complaint on several grounds without holding a hearing. [xvi] As well, s. 34 allows the Tribunal to pass rules that provide that the Tribunal need not hold a hearing. [xvii]

 

GOVERNMENT STATEMENT:   Attorney General Michael Bryant stated: under the current human rights system, most human rights complaints are resolved behind closed doors, but in contrast under bill 107, they will be resolved in the open, with the public able to see, thereby helping better root out systemic discrimination. [xviii]

FACT:

• Under bill 107, there is no requirement that human rights complaints be resolved in open, public proceedings. To the contrary, most cases will likely be resolved under Bill 107 without public proceedings, as is the case now.

·         As noted above, the Tribunal has the power to dismiss complaints on several grounds, without holding a hearing. The Tribunal has the power to make rules limiting the availability of a hearing to persons whose complaints are not dismissed on preliminary grounds.

·         The tribunal properly has the power to mediate settlements.

·         Bill 107 doesn’t require that mediation to take place in public. To do mediation in public would substantially hamper the mediation process.

·         Currently the majority of human rights complaints are resolved through mediations, negotiations or conciliations either at the Human rights Commission or at the Tribunal and are not held in public.  Bill 107 does not change this.

• In the current system, the Commission reviews all settlements to ensure that they comply with the Human Rights Code. Under Bill 107, complainants do not have that protection.  Settlements will be more private.

 

GOVERNMENT STATEMENT: Attorney General Michael Bryant stated: under Bill 107, the Human Rights Commission will be able to go out and investigate systemic discrimination and to take action on it, for the benefit of the thousands or millions of Ontarians who face discrimination but aren’t among those bringing forward human rights complaints. [xix]

FACT:

• Bill 107 significantly weakens the Human Rights Commission’s capacity to investigate and prosecute systemic discrimination. It repeals the Commission’s statutory investigation powers in s. 33 of the current Human Rights Code. [xx]
• Bill 107 also significantly reduces the power of the Human Rights Commission to initiate its own complaints. Currently, s.32 the Human Rights Code imposes no preconditions on when the Human rights Commission may launch its own complaint, and on what remedies the Commission can seek. [xxi]
• In contrast, Bill 107 only allows the Commission to launch its own human rights complaint in “systemic” discrimination cases, and only if the Commission hasn’t been able to address the matter under Part III of the bill, and only if the proceeding is in the “public interest”. The bill doesn’t define this term. [xxii]
• Under s. 43 of the bill, the Commission would only be able to seek remedies in relation to future practices. It cannot seek remedies to rectify or compensate for past discrimination. [xxiii]
• In contrast, the current code doesn’t impose any such restriction on the remedies the Commission can seek when it launches its own human rights complaint.

GOVERNMENT STATEMENT:  Attorney General Michael Bryant stated that a benefit of Bill 107 is that it creates a new “Disability Rights Secretariat” which differs from the Ontario Government’s existing Disability Accessibility Directorate”. [xxiv] He said the existing Disability Accessibility Directorate doesn’t deal with matters that are a violation of the Human Rights Code, and doesn’t deal with matters affecting systemic discrimination. [xxv]

FACT:

• The core mandate of the existing Disability Accessibility Directorate is to deal with key parts of the Human Rights Code’s protections for persons with disabilities, via developing accessibility standards that derive from the Code’s duty to accommodate, and to remove and prevent barriers against persons with disabilities.

 

GOVERNMENT STATEMENT:  Attorney General Michael Bryant said that one of the goals of Bill 107’s reform is to provide “due process” to those who appear before the Human Rights Tribunal. He stated: “The purpose of a direct-access system… is partly to provide access … give due process and give timely justice to those who appear before the Human Rights Tribunal.”

FACT:

• Bill 107 reduces, rather than assures, protections for “due process” for persons who appear before the Human Rights Tribunal.
• Presently the Tribunal is required to comply with all the requirements for “due process” (i.e. a fair hearing) that are provided for in the Statutory Powers Procedure Act. In contrast, s. 38 of Bill 107 permits the Tribunal to make procedural rules that override and don’t comply with the Statutory Powers Procedure Act’s due process Requirements. [xxvi]  

 

GOVERNMENT STATEMENT:  Attorney General Michael Bryant stated:  Bill 107 isn’t taking Ontario down the road of the highly criticized reforms in British Columbia. He said that unlike in B.C. Bill 107 will provide legal supports and maintain the Human Rights Commission. [xxvii]

FACT:

• Bill 107 substantially resembles the widely-condemned changes to B.C.’s human rights system.
• Both require human rights complainants to take their case directly to the Human rights Tribunal.
• Both eliminate the role of the public Human Rights Commission as the public investigator of all non-frivolous human rights complaints.
• Both eliminate the role of the Human Rights Commission as public prosecutor of all cases that go before the Human Rights Tribunal.
• Contrary to the Attorney General statement, B.C. does provide limited funding for a legal clinic to give legal support within its limited budget for human rights complainants, and Bill 107 does not require the provision of legal supports, that is left to the discretion of the Minister of the day.
• A difference between B.C. and Ontario is that B.C. completely eliminated its Human Rights Commission. In contrast Bill 107 leaves the Commission in place, but eliminates most of its powers and mandate.

GOVERNMENT STATEMENT: Attorney general Michael Bryant stated: under the current human rights system, there is no access to justice. [xxviii]

FACT:

• While there is need to improve the current system, it is inaccurate to say that there is no access to justice under the current system.
• The Human Rights Commission now reaches voluntary resolutions of more than 1500 [xxix] cases annually. The law books contain many successful precedent-setting decisions that the Commission has successfully prosecuted before the Human Rights Tribunal.
• What the current system needs is adequate funding and revisions to s. 36 of the Code so that the Commission takes more cases to the Tribunal. There is no need to eviscerate the Commission to solve the existing problems and improve access to justice.

 

Bill 107 Action Kit - re proposed Human Rights Code Amendment Act

AODA Alliance - Talking Points - Queen’s Park News Conference - May 19, 2006
Read what the AODA Alliance had to say today at their Queen's Park's news conference announcing our strong opposition to the McGuinty Government's Bill 107, the proposed Human Rights Code Amendment Act, now before the Legislature for Second Reading