Leading the Way: Human Rights Tribunal of Ontario Jurisprudence in National Perspective
Bruce Ryder
Osgoode Hall Law School, York University
In his Report of the Human Rights Review 2012 (“the Pinto Report”),[1] Andrew Pinto undertook a careful study of the administration and enforcement of the Ontario Human Rights Code[2] before and after June 30, 2008, the date of the coming into force of profound changes to the roles of the Ontario Human Rights Commission and the Human Rights Tribunal of Ontario. The 2008 amendments were bold, replacing the previous system, in which the Commission played the role of “gatekeeper”, with a “direct access” system in which every applicant is entitled to a hearing before the Tribunal.[3]
These changes, adopted by the legislature with the passage of the Human Rights Code Amendment Act, 2006,[4] were hotly contested, with some issuing dire warnings that the transformation of the role of the Ontario Human Rights Commission would lead to the collapse of meaningful access to remedies for violations of fundamental human rights in the province.[5] Because of these concerns, the legislature was persuaded to add a third pillar to Ontario’s human rights system, the Human Rights Legal Support Centre, with a mandate to “establish and administer a cost-effective and efficient system for providing support services, including legal services, respecting applications to the Tribunal”.[6] The legislature also thought it wise to review the effectiveness of the new system after three years. To that end, s.57 was added to the Code, requiring the Minister to “appoint a person who shall undertake a review of the implementation and effectiveness of the changes resulting from the” amendments.[7]
We are fortunate indeed that the Minister turned to Andrew Pinto for this task. His report provides convincing data and analysis to support his conclusion that the new human rights system “is working better but faces some important and urgent challenges.”[8] He found that “the current direct access human rights system under the revised Code appears to be more efficient than the previous system in a number of respects.”[9] In particular, “a greater volume of cases are resolved faster without a backlog developing and, for those cases that do not settle and proceed to a hearing, they are decided much faster.”[10]
Moreover, drawing on Tribunal statistics, Pinto presents a clear picture of how dramatically the direct access model has altered the jurisprudential landscape of anti-discrimination law in Ontario, and indeed in the country as a whole. The Tribunal now receives about 3,000 new applications annually. A huge number of these are settled. A significant number proceed to a hearing at the Tribunal. A glance at the HRTO database on CanLII reveals that the Tribunal now issues roughly 2,400 rulings annually, compared to about 30 annually under the previous Code in the years leading up to the amendments. Of course, many of these rulings related to preliminary matters or involve summary dismissals. Still, the Tribunal now issues a large number of final rulings annually: in the 2010-11 and 2011-12 years, the Tribunal issued 104 and 95 final rulings respectively.[11] On average the Tribunal issued 15 rulings per year under the previous Code.[12]
Put together with the new requirement in the Code that Tribunal members have “experience, knowledge or training with respect to human rights law and issues”,[13] and the high quality of the government’s appointments to the Tribunal,[14] the direct access model has produced a remarkable and rich efflorescence of anti-discrimination jurisprudence from the Tribunal.
Pinto found that in 60% of the successful applications he reviewed, the Tribunal ordered a public interest remedy.[15] He observed that the funding of Ontario’s human rights system had increased significantly in the transition to the new system, from roughly $14M annually for the Commission and the Tribunal under the old Code to $20M for the Tribunal, Commission and Centre under the new Code.[16] Nevertheless, he pointed out that the Centre in particular needs a significant infusion of additional resources if it is to be able to fulfill its statutory objectives.[17]
Given the scope of the statutory mandate that shaped the terms of reference of the review, it is understandable, and indeed appropriate, that the Pinto Report is focused on measuring the before and after situation in Ontario, with little discussion or attention devoted to whether other Canadian jurisdictions are administering statutory prohibitions on discrimination efficiently and effectively. If we do consider the situation elsewhere in the country, and compare it to the data and analysis presented by the Pinto Report, it becomes clear that we are fortunate in Ontario to have a unique and uniquely powerful human rights system.
No other jurisdiction has the three pillars that exist in Ontario. Other Canadian jurisdictions are not adding new pillars to their human rights edifices; rather they have been tearing down existing pillars. When one considers how hostile the political and legal climate for the advancement of equality rights across Canada has been in recent years, it starts to appear like a kind of miracle that the new Ontario system has survived and prospered. Elsewhere in the country the news is not so good. A federal Bill will soon repeal the prohibition on the distribution of hate messages by phone or on the internet in s.13 of the Canadian Human Rights Act. Ill-informed attacks on Canada’s human rights institutions are commonplace in new and old media and in our legislatures.[18] In British Columbia, the Human Rights Commission no longer exists. In Saskatchewan, the Human Rights Tribunal is gone; henceforth, applications will be adjudicated by the Court of Queen’s Bench. If a glance at CanLII reveals the efflorescence of jurisprudence from the HRTO since the 2008 amendments came into force in Ontario, in other Canadian jurisdictions it reveals a striking paucity of rulings from human rights tribunals. In its 2011 annual report, the Canadian Human Rights Tribunal reported that it released six final decisions in 2011.[19]
The situation regarding the equality rights in s.15 of the Charter is also dire, and has been for the past decade.[20] The federal government cancelled the Court Challenges Program in 2006 and other sources of public funding for test case litigation are shrinking. Despite the fine-sounding rhetoric of the courts, we have witnessed a dramatic decline in the number of s.15 claims, as well as a dramatic decline in the proportion of s.15 claims that courts find to be established. When courts do deal with equality claims, they often do so dismissively.[21]
The HRTO, then, is clearly playing a leadership role nationally in the development of anti-discrimination law. For example, when it comes to dealing with racism and race discrimination, it is not much of an overstatement to say there are virtually no significant s.15 rulings from the Courts, [22] while there is a significant body of recent case law from the HRTO dealing sensitively and seriously with allegations of racism. Not surprisingly, a significant number of those HRTO rulings have run into judicial resistance at the Ontario Divisional Court.[23] When it comes to the rights of transgendered persons, no Canadian ruling is as impressive as Vice Chair Sheri Price’s ruling in XY.[24] Likewise, HRTO rulings elaborating on the statutory and constitutional test for discrimination are more nuanced and thoughtful than what we see from the courts on equality rights these days.[25]
It is likely, then, that the Ontario human rights system will continue to come under political pressure in the years ahead, perhaps with attempts to introduce some of the destructive measures adopted in other jurisdictions. The Pinto Report provides us with a strong basis for resisting those pressures. Other Canadian jurisdictions will have difficulty measuring up against Ontario’s unique and uniquely powerful three-pillared approach.
6
[1] Andrew Pinto, Report of the Ontario Human Rights Review 2012 (November 2012) [hereafter, the “Pinto Report”], available at:
http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/human_rights/Pinto_human_rights_report_2012-ENG.pdf
[2] RSO 1990, c H.19.
[3] Ibid, s.34(1).
[4] SO 2006, c 30.
[5] See, for example, the contributions to the 2006 legislative debates and persistent concerns expressed by the AODA (Accessibility for Ontarians with Disabilities Act) Alliance, online at: http://www.aodaalliance.org/
[6] Code, supra note 2, s 45.12(a).
[7] Ibid, s.57.
[8] Pinto Report, supra note 1, at 196 (emphasis in original).
[9] Ibid at 41.
[10] Ibid at 43.
[11] Ibid, Appendix E, at 214.
[12] Ibid at 43.
[13] Code, supra note 2, s 32(3)1.
[14] In Pinto’s assessment, “[t]he appointment of adjudicators to the Tribunal appears to be merit-based and stakeholders were generally complimentary about Tribunal members’ knowledge of and experience in human rights.” Pinto Report, supra note 1, at 184.
[15] Ibid at 75.
[16] Ibid at 176, 179.
[17] Ibid at 181.
[18] See, e.g., Ezra Levant, Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights (Toronto: McLelland and Stewart, 2009); Richard Moon, “The Attack on Human Rights Commissions and the Decline of Public Discourse”, (2010) 73 Sask L Rev 93.
[19] Canadian Human Rights Tribunal, Annual Report 2011, online at: http://chrt-tcdp.gc.ca/NS/reports-rapports/2011an/index-eng.html#a9
[20] See Fay Faraday, Margaret Denike and Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality Under the Charter (2006).
[21] See Bruce Ryder and Taufiq Hashmani, “Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010”, (2010) 51 SCLR 505.
[22] Julie Jai and Joseph Chang, “Invisibility of Race in Section 15: Why Section 15 of the Charter Has Not Done More to Promote Racial Equality”, (2006) 5 JLE 125.
[23] For a review of these cases, see Ranjan Agarwal, Jessica Weiss and Lauren Shneer, “To Agree or Not to Agree: Judicial Review of Ontario Human Rights Tribunal Racial Discrimination Decisions” (OBA Annual Human Rights Update, June 2012).
[24] XY v Ontario (Government and Consumer Services), 2010 HRTO 726.
[25] See, eg, Hendershott v Ontario (Community and Social Services), 2011 HRTO 482; Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1714.