The Pinto Report: Access to Justice from the Practitioner’s Viewpoint Page 6
Introduction
The Report of the Ontario Human Rights Review 2012[1] (Pinto Report) presents us, as human rights lawyers and advocates, with a unique opportunity to discuss and debate the role of Ontario’s human rights system in the context of a larger social debate about access to justice. As a human rights lawyer (who almost exclusively advises respondents), I believe that Mr. Pinto’s review and recommendations should be welcomed, even if some stakeholders disagree with his proposals. In this “response” to the Pinto Report, I focus on certain recommendations Mr. Pinto makes in respect of mediation and costs, with a view to whether those recommendations advance the cause of access to justice.
Access to Justice
The Supreme Court of Canada has endorsed the principle of access to justice as part of the rule of law, which is protected by section 7 of the Canadian Charter of Rights and Freedoms (Charter).[2] In B.C.G.E.U. v British Columbia (AG)[3], the Supreme Court of Canada said: “There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.”[4] But that case really focused on access to the courts: physical access to justice. In Christie v British Columbia (AG)[5], the British Columbia Court of Appeal defined the constitutional right to access to justice more broadly: “reasonable and effective access to courts of law and the opportunity to obtain legal services from qualified professionals, that are related to the determination and interpretation of legal rights and obligations by courts of law or other independent tribunals.”[6] Though the Supreme Court accepted the importance of access to justice as part of the rule, it expressly rejected the constitutionalization of access to justice beyond access to the courts and the right to a lawyer.
As a result, we do not have a good common law definition of “access to justice”. Even if we accept that certain forms of access of justice are not protected by the Charter, we do not have a workable definition to assist legislators, policy-makers and other decision-makers concerned with the issue outside of the Charter context. So, for example, in class action litigation, access to justice is defined as “making economical the prosecution of claims that would otherwise be too costly to prosecute individually.”[7] In Fortin v Chrétien[8], the Supreme Court describes access to justice by reference to other rights: the right to the assistance of an interpreter and the right to use the official language of one’s choice in proceedings. But these decisions arguably limit the definition to the facts or circumstances of the case in which they are decided (like Christie) and cannot necessarily be used in other, broader contexts.
We may get some clues about the meaning of access to justice from extra-judicial comments made by Supreme Court and other judges. So, for example, Chief Justice Beverly McLachlin focuses the problem of access to justice on financial aid and the problem of self-represented litigants.[9]
In my view, access to justice must be defined by reference to both its both objective barriers and its subjective barriers: physical access, economic considerations and procedural issues, but also “lack of knowledge” and “age, physical or intellectual deficiency, ethnic and socio-cultural background and internalized class perceptions”.[10]
For the purposes of this discussion, I believe the issue is: given the quasi-constitutional role of our human rights systems[11], does the legislation and the bureaucratic system created by that legislation do enough to remove impediments to access to justice?
The Pinto Report and Access to Justice
In my view, the Pinto Report makes important recommendations that a go a long way to improving both the objective and subjective barriers to access to justice. But it could go further.
Mediation
As the Pinto Report notes, mediation has been offered as part of Ontario’s human rights system long before the 2006 amendments[12] to the Human Rights Code.[13] In fact, mediation may have been overdone: parties mediated during the Ontario Human Rights Commission’s investigation and, if the complaint was referred to the Ontario Human Rights Tribunal, again before the Tribunal hearing.[14]
Today, there are two opportunities for mediation: after the Application is filed before the hearing and at the hearing (“mediation-adjudication”).[15] In both cases, mediation is voluntary. The Application Form and the Response Form both ask the party: “Do you agree to try mediation?” In the forms, mediation is described as follows:
Mediation is one of the ways the Tribunal tries to resolve disputes. It is a less formal process than a hearing. Mediation can only happen if both parties agree to it. A Tribunal Member will be assigned to mediate your Application. The Member will meet with you to talk about your Application. The Member will also meet with the respondent(s) and will try to work out a solution that both sides can accept. If Mediation does not settle all the issues, a hearing will still take place and a different Member will be assigned to hear the case. Mediation is confidential.
In my experience, Tribunal members, at the commencement of a hearing, will at least ask (if not encourage) the parties to participate in mediation-adjudication.
The Pinto Report finds that mediation “occurs in about 1,420 cases each year with a 65% resolution rate”.[16] This means that approximately half of all new cases are being mediated.[17]
In order to improve mediations, the Pinto Report makes three recommendations: (a) the Tribunal should dedicate more resources to early mediation; (b) the Tribunal’s policy on union involvement in mediation should be more consistent; and (c) the Tribunal should compile and publicize mediation statistics.[18]
I would go further. Mediation is a vehicle for access to justice. It allows parties to have their “day in court”, where they can express their feelings about the issues in dispute to a neutral third-party. It allows for a cost- and resource-effective way to resolve the dispute and can, because of the informality of the process, provide for more nuanced fact-finding experience that better accounts for the parties’ needs, capacities and circumstances.
In Ontario’s civil justice system, mediation is mandatory in most actions commenced in Toronto, Ottawa and Essex County.[19] The parties are required to mediate before the action is set down for trial.[20] Further, in all actions, the parties must participate in a pre-trial conference, where the presiding judge or case management master will consider “the possibility of settlement of any and all of the issues in the proceeding”.[21] Ontario’s Small Claims Court does not have pre-trial conferences: it has “settlement conferences” before the action can be placed on the trial list.[22]
In my view, all human rights cases should be mediated for the following reasons:
· Unsophisticated or self-represented applicants may not understand the benefits of mediation at the time they make an Application. The applicant can achieve a measure of justice without the anxiety, stress or risk of a hearing. A mediated resolution is more cost-effective. The applicant may be able to negotiate a more meaningful remedy, such as an apology or a reference letter.
· Unsophisticated or self-represented respondents may equally not understand or appreciate the benefits of mediation at the time they file a Response. Or they may have a poor perception of mediation at the Tribunal (i.e., the Tribunal may be viewed as applicant-friendly so mediation can only result in the respondent “writing a cheque”).
· Even if the settlement rate decreases, more cases will be closed, meaning more resources for the truly intractable disputes. In the civil justice system, cases were more likely to settle immediately after mediation in jurisdictions with mandatory mediation.[23]
To make mediation more effective and efficient, the Tribunal should also consider allowing or encouraging parties to mediate with private mediators. Though most parties are likely to use the Tribunal’s free mediation service, represented parties or sophisticated respondents may see the value in a timely mediation or choosing their mediator, even if the parties or the respondent has to bear the cost. In the civil justice system, mediators’ fees are capped at $600 for a three-hour mediation between two parties.[24] Even if only a few parties access private mediation and successfully resolve the dispute, there will be more human resources available to the Tribunal.
Finally, there should be a formal mechanism for requesting mediation once the case is scheduled for a hearing. In my experience, parties become more willing to mediate as the hearing approaches, which could be the result of anxiety about the hearing, a more realistic assessment being made about the party’s chance of success or other factors (i.e., witnesses becoming unavailable, parties having “moved on” from the issues that gave rise to the dispute). As it stands now, the parties have no formal mechanism to request another mediation (or a first mediation if they did not agree to mediation at the outset). Instead, the parties have to wait until the commencement of the hearing to mediate-adjudicate, which may be too late if they have spent time and resources preparing for the hearing.
Costs
Though I am generally supportive of Mr. Pinto’s conclusions and findings, I disagree with his recommendation that the Ministry of the Attorney General should investigate the merits of a cost regime.
The Statutory Powers Procedure Act[25] provides that the Tribunal has the jurisdiction to make costs awards provided it has made rules regarding costs and the party being ordered to pay costs engages in conduct that is “unreasonable, frivolous or vexatious” or “has acted in bad faith”.[26] As a result, my view is that it is incumbent on the Tribunal to show leadership in this respect, either by compiling data to show the effects of a costs regime on Applications and Responses or to implement rules regarding costs.
Further, though I understand the value in empirical data, I am not sure how the Attorney General will adequately test this question. Instead, I would propose to rely on the experiences in other jurisdictions. Prior to the 2006 amendments, the Human Rights Code expressly provided for costs where the applicant’s complaint was “trivial, frivolous, vexatious or made in bad faith” or where the respondent suffered undue hardship.[27] Most other jurisdictions in Canada have a costs regime (though Ontario and B.C. are the only jurisdictions with a “direct-access” model for human rights complaints).[28] What was Ontario’s experience before the 2006 amendments—were complainants “chilled” by the risk of an adverse costs award? In B.C., which has a direct access model and allows for costs where there is improper conduct, have applicants disclosed an unwillingness to proceed with their complaints because of the risk of an adverse costs awards? In jurisdictions where the Tribunal has broader discretion to award costs, such as Alberta, Prince Edward Island, Newfoundland or Quebec, have complainants declined to proceed with their application? In all of these jurisdictions, what, if any, empirical studies have been done either before the costs regime was introduced or after to determine what effect, if any, costs would have on human rights proceedings?
From an access to justice perspective, I do not believe there is any reasonable dispute that successful applicants should be entitled to their costs. Even if the applicant is self-represented, the time and resources involved in completing the Application, mediating the dispute and preparing for and attending the hearing can be onerous. The Court of Appeal for Ontario has held that self-represented litigants can be awarded costs “who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity.”[29] If the applicant is represented by a lawyer, the modest damages awards made by the Tribunal may set-off any fees that the applicant has to pay to his or her counsel.
I also do not believe there is any reasonable dispute that the Tribunal should have discretion when awarding costs, notwithstanding that the rules or the statute may proscribe certain factors to be considered.
So, the issue really is whether successful respondents should be entitled to their costs. I believe so.
The Supreme Court of Canada has articulated the policy reasons underlying Canada’s “loser-pays” costs regime: “to encourage settlement, to deter frivolous actions and defences, and to discourage unnecessary steps in the litigation.”[30] These policy reasons can and should apply equally to human rights complaints. Though Ontario’s human rights system is an administrative law system, the Tribunal is being called upon to resolve disputes between private actors (albeit disputes that arise from a statutory cause of action). The procedure for making complaints and responding, documentary discovery, mediation and ultimately hearing most closely resembles the civil justice system. And the desire to encourage settlements, deter frivolous actions and defences and discourage unnecessary litigation are equally concerns expressed either expressly or impliedly in the Pinto Report.
Under the current system or under a one-way costs regime (i.e., only successful applicants are entitled to their costs), respondents are made to bear the costs of the human rights system. That, in my view, is both unfair and inconsistent with the goal of encouraging a robust culture of human rights. It also, in my view, distorts the incentives to settle and leads to unfair conclusions: if damages range from $500 to $15,000, respondents will likely settle because the costs of litigating are much higher, which leads to the conclusion that the applicant has “won” and there was discrimination when, in fact, the respondent may have made an economic decision.