Controversy on How Anti-Discrimination Human Rights are Enforced in Ontario
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Controversy on How Anti-Discrimination Human Rights are Enforced in Ontario

September 21, 2019


– Good morning, everyone. It’s a privilege to
speak to your first year State and Citizen course,
and I would like to spend our time talking about
something you won’t be talking about during
the rest of the course. During the part of your
constitutional law course when you speak about
constitutional rights, you’re gonna be drilling
down into the very, very important subject of how
we define fundamental rights, which our constitution guarantees. What does freedom of expression mean? What does equality mean? What are the principles
of fundamental justice that are guaranteed to any
person whose life or liberty or personal security is
put at stake by the state? And in law school, as in law practice, the meaning of those
rights is both challenging and interesting and important. But what’s equally
important is how we go about enforcing those rights. Indeed, a right on paper is of little use, no matter how broadly interpreted, if our method for
enforcing it is one which those who need the right the
most can’t access it at all. I’m gonna use equality rights
in the charter section 15, as the specific right I wanna focus on, because it is the one
right in the charter which, well before the charter,
we’ve struggled with how to enforce it, and
we’ve had a parallel system online, both before and after
the charter to enforce it, and it’s one that’s changed over time. It’s been controversial, there
have been vibrant debates, sometimes, really tough debates. I’ve had the privilege of being right in the middle of those. I’m gonna share the
debates, I’m gonna point out where I’ve been a
partisan, so you can judge what I have to say with that fair scrutiny that a combatant deserves
to be subject to, and I’m gonna try to suggest what we’ve learned along the way. In the end, what we should
derive from all of this is our lessons about what we need to do to do a better job of coming up with ways for enforcing particular rights. So, here goes. When you got to law school, and for people who may watch this video
who aren’t in law school and will never go there,
their understanding of enforcing legal rights is typically that which we do in court. You hire a lawyer, you go to court, you have a trial, witnesses testify, lawyers argue, a court decides, and if you’re not happy, you appeal. That’s the paradigm for
enforcing legal rights that pervades what you
study here at law school, and pervades what non-lawyers understand about what rights are all about. But there’s an entire body of law and an entire body of practice that is outside that structure. And it’s called: administrative law. And you’re gonna touch on
it a bit in this course, and in your advanced studies,
in second and third year, you’ve got an administrative law course and then some advanced
courses you could choose from, to see where it goes. Let me give you a quick
introduction of what it’s all about, and then we’re gonna apply it to the issue of equality rights. Well, administrative law arose years ago as a body of law to study the situations where we’ve taken the
implementation and enforcement of individual rights out of the courts. We’ve said: you know what? There are better ways to implement and enforce these rights
to resolve disputes. The court system has some advantages, but it has some huge disadvantages, one of which is it costs a fortune and a lot of people
can’t afford to use it. Another problem is, it’s a rather stiff, rigid, formal system. It may not work very well for disputes that need more flexibility. Its remedies that it can
provide where there’s been an infringement or denial of rights are potentially helpful,
but potentially limited. Typically, a judge decides a
case, and then they’re done. We have a fancy Latin term: they’re called functis officio. They’re done. You can’t go back and say: hey,
we still have this problem. You’ve gotta go start a new lawsuit. There’s no ongoing oversight. There are many things, and often, you end up with issues
that you wanna deal with that require not just
technical, legal interpretation, like we teach you here in law school, but infusing decisions about public policy in an area where you want
someone who knows something about that area, has some expertise in it, and can infuse that into the decision. It’s not just a matter
of looking for cases and seeing if there’s
a precedent on point. So, from this came the
idea that let’s set up, in some areas, non-court
regulatory structures. And administrative law is that body of law that overlays all of it, that says: okay, you can set up these
different non-court structures. Labor boards, welfare appeal boards, immigration and refugee boards, securities regulation
type bodies and so on. But courts will oversee to make sure that they stay within
the bounds of the law, and that’s what we learn
in administrative law. Well, this is the route we actually went, many decades ago, in the area
of enforcing equality rights. Long before we actually
guaranteed equality rights in the charter of rights at all. Long before we knew there would be a charter of rights in our constitution. How did it start? Well, it started, the
prehistory is, as I take you on this tour, the prehistory
comes after World War Two. World War Two brings to
shocking public attention the kind of harrowing brutality
and cruelty that could arise from racial and religious discrimination. This led some provinces
like Ontario to decide to make it illegal to
discriminate based on race, or religion, in certain activities. Like access to public accommodations. The way they did it, initially, was not by turning to
non-court regulatory regimes that are the stuff of administrative law. Instead, what they did was they simply made it illegal and had
it prosecuted through the courts as a provincial offense. It wasn’t a federal criminal offense, it was a provincial offense. So you’d lay a charge,
the Crown would prosecute, the police would investigate, and at the end, a judge would decide and the penalty could
be a fine or something. This system didn’t work. And it didn’t work for a bunch of reasons. In summary: courts are not experts in human rights and equality rights. Nor are Crowns, prosecutors, or police. They’re busy working on
murders and sex assaults and break-ins and armed robberies. And when you add to that docket: you wouldn’t rent this apartment to me because of my religion
or the color of my skin, it didn’t exactly leap
to the front of the line, in terms of priorities. Moreover, the prosecution
process was not a way for making progress in relationships between those who are
victims of discrimination and those who engage in it. It didn’t constitute
a really effective way of changing how society works. And as a result, we go
from prehistory, the ’40s and ’50s, to a transformative
change, the next step. And it starts around 1960 or
’61 and it starts right here, right in the province of Ontario, and then it spread right
across the country. It was the introduction of the idea of taking this out of the courts. Let’s take discrimination
cases out of the courts. Let’s create a regulatory
regime for dealing with them. And the first version of this,
which started in 1960 or ’61 in Ontario, continues to this
day, in a number of parts of the country, but not
Ontario, and continued in Ontario until about 2008,
is a regulatory approach with a public enforcement model. What do they do? They created, the
legislature passed a new law called The Ontario Human Rights Code. Human Rights is the Canadian legal term for anti-discrimination protection. In other parts of the world,
human rights is a term that may refer to all sorts
of fundamental civil rights and liberties, freedom of expression, freedom from torture and so on,
but in Canadian legal-speak, it means anti-discrimination laws. Protecting equality rights. And the Human Rights Code
set these rights out. It provided you can’t
discriminate in employment or housing or access to
services or facilities. Later, they added goods. And it lists the grounds of discrimination that were forbidden. Initially race, religion and a few others. Since then, others have been added. Such as disability, sexual orientation, receipt of social assistance and so on. But they provide the
code of actual rights, but then the Human
Rights Code goes further and provides the rules for
how they’re gonna be enforced. And the Ontario Human Rights
Code, in the early 1960s, the first in Canada,
took the implementation and enforcement of these rights basically right out of the courts. And instead, it created two new bodies, to be responsible for their
implementation and enforcement. The first was called the
Ontario Human Rights Commission, and the second was an
adjudicative tribunal, then called the Human
Rights Board of Inquiry. Now, more accurately called the Human Rights Tribunal of Ontario. Different name, same basic role. So, how did it work? Well, the Human Rights Commission was this new administrative body, which was designed to take into account the ideas I described,
underpin administrative law. It was designed to bring to bear speed, expertise, and a capacity that
would bring policy concerns about human rights to
bear in deciding cases. And to be able to provide
a breadth of remedies, better than courts can. So how did it work? The tribunal, or pardon me,
the Human Rights Commission really had two roles. And they’re sequential: one
role at first, a second, second. Let me walk you through them. At the first stage, the
Human Rights Commission is the neutral law enforcement body. If you felt you were
discriminated against, on ground that the Code prohibited, you thought that because
of your race or religion, or later, your disability
or sex or whatever was used against you in
getting access to a job or a public service or whatever, you could file a legal
proceeding with the commission, it was called a Human
Rights Complaint back then. And the complaint was
supposed to be less formal than a civil statement of
claim or a criminal indictment. It’s just a narrative
of what happened to me. I applied for this apartment,
they said “no jews” or “no blacks allowed,”
whatever they wanted to allege. I believe my rights under
the Human Rights Code to freedom from discrimination
because of my race or religion were denied, and that’s it. Then we’re off and running. The Human Rights Commission then became, as I said, the law enforcement body. How did it do that? It had several steps it was to follow, under the legislation. First, it was to decide at the threshold: is this complaint one that we can handle? And it could turf the complaint out right at the front door,
without investigating, on either of two grounds: either it’s, the complaint’s
outside our jurisdiction. If you file a claim of discrimination, but not on a ground that
the human rights code bans, you’re out the door; they have
no authority to deal with it. Of if you file a complaint against a body that the commission can’t regulate. Provincial Human Rights Commission can’t regulate Air Canada, that’s federal. You try filing a complaint there, they turf it out the door. They don’t investigate it,
they don’t do anything, they just say: sorry,
we can’t handle that. They could also turf a
complaint right at the outset if they said it was frivolous or vexatious or brought in bad faith. What that means in plain
language is there’s some people who seem to just file
complaint after complaint, in a frivolous or vexatious way, or there’s some extrinsic
proof that there’s, that this is not a good faith claim. They could turf the complaint. For complaints to get through
that initial screening, the commission gets on to its next role. It had a duty to
investigate the complaint. And the commission had,
in its employ, officers. With investigation powers. Now, because this isn’t criminal law, they didn’t have to
follow all the strictures that a police officer would,
because they’re not looking for evidence of a crime that could
send you to jail and so on. Bit their role was to go out
and find out what the facts are and they had some powers,
that, ah, assisted them in being able to do that
kind of investigation. After they investigated, then
the commission had a duty to try to affect a settlement. In plain language: to try
to mediate or negotiate with the parties, see if
they can resolve the case. And in many cases, after
investigating and sitting down with the parties, case is
resolved via settlement. And if they settle, case is done. And the settlement is enforceable. In some other cases, they
weren’t able to affect a settlement, and then we
get to the commission’s really important role,
and this is the stage where the commission goes from
being an investigative body, where it plays a neutral, to
transforming to a new role. At this point the
commission, after it’s tried to investigate, after it’s
tried to affect a settlement, the commission was mandated by
the Ontario Human Rights Code to decide if the case warrants a hearing before the Human Rights Tribunal. This is absolutely a
pivotal, important power. If, at that stage, the case is settled, we don’t get to this need
for a hearing; it’s done. It’s settled. However, if the investigation
is completed and no settlement can be reached, the commission has to say: well, what do we do? They got two choices. They can either essentially say: we refer this for a hearing. In which case it goes on to
the Human Rights Tribunal for a hearing, or they say: we
don’t refer it for a hearing. At which point the case is over. It’s done. The complainant, the person
who brought the complaint, essentially goes away with nothing. And the, if, on the other hand, there is a decision in
favor of holding a hearing, the complainant then goes forward to a Human Rights Tribunal hearing. So now we’ve transformed, we’ve
now spent the commission’s role as an investigator, and as a party trying to neutrally mediate
between the parties. We now shift to the next
phase of the human rights public enforcement process,
and that’s at the tribunal. Now, to describe what
happened at the tribunal, under this system, I
need to take a step away and draw a bright line between two worlds that you, in first year
law school, know about, and that the lay public know about. One is the courtroom in a civil case, and the other is the
courtroom in a criminal case. In a civil case, like a lawsuit
over a family law dispute or a breach of contract,
it is a private lawsuit between two private parties: the plaintiff and the defendant. Each can have a lawyer, they hold a trial. They can each call
witnesses, cross examine each other’s witnesses and so on. The state is not there to
enforce anybody’s rights. It’s a private dispute. Well, the state can bring a private claim, but typically it’s private
party against private party. There’s no state actor that comes in as the prosecutor or the enforcer. That’s the private, civil lawsuit model. At the other end of the spectrum,
is the criminal law model. In that case, the state
is very much there. The Crown is there to prosecute the case. To call the evidence, to
cross-examine the defense witnesses and to try to prove guilt,
beyond a reasonable doubt. In the criminal case, the
state is the prosecutor, and the alleged victim
of crime is not a party to the proceeding, they’re just a witness. They can’t get up and argue
the case, they simply answer questions that are put to
them and then sit back down. In contrast, a plaintiff in a civil case is a party to the case. They not only can testify,
they can cross-examine the other side, they can
call their own witnesses, they can argue their case. So there’s a huge
difference between the role of the alleged victim of wrongdoing in a civil case versus a criminal case. Now, let’s look at what
we can do in a creative regulatory regime, when we’re
freed from the strictures of the rigidity of the court process. What the Human Rights Code did was to create a hearing process before the Human Rights Tribunal that was a blend of both a civil and a public, or criminal, model. At the Human Rights Tribunal, under the old Human Rights Code, the party accused of discrimination, they’re called a respondent,
because they’re responding to the allegation, they
had a right, of course, to testify and to call evidence, to cross-examine the witnesses
against them, of course. But as well, the complainant
had the status of a party. They could testify,
they could cross-examine the respondent’s
witnesses, they could make submissions to the tribunal
of what should be done. But there’s a third party at the hearing, and that was the Ontario
Human Rights Commission. Well, what’s it doing there? Well, under the old Human Rights Code, the Human Rights Commission was said to have carriage of the complaint. It’s comparable to a Crown’s
role in a criminal case. So the Human Rights Commission
could call evidence, cross-examine, and make submissions of what the tribunal should do, apart from the complainant. And having carriage of the complaint, what that meant is the commission had the duty to present the case. But they don’t present it as a private lawyer for a private complainant, they present it more in a public role. Akin to a Crown presenting
a case at a criminal case. So we’ve a hybrid between
a private civil dispute and a public, criminal dispute. Now, it’s not a criminal issue, but it drew on that model,
and I know this system well, because I was, at times, had the privilege of serving as counsel for the commission at some of these hearings, and
when I brought my complaint against the TTC to get them
to announce subway stops, something of which there’s an entire video in this video lecture
series, I was a complainant in two different hearings
under this model. So I’m drawing on personal
experience to what it’s like. And at this hearing, the
commission is no longer the neutral party it was during the investigation and mediation process. It’s now there, having
investigated and deciding the evidence warrants a
hearing, to present the case. And now it’s open to
the complainant to say: I agree with the
commission on some things, but I want some remedies they don’t want, or I want to make arguments
they don’t wanna make. Unlike a victim, or an alleged
victim, in a criminal case, they’re not simply a passive witness. They’re an active party. Now, what’s distinctive about this system, as it was designed, was
it was designed so that they could try to resolve
cases through investigation and mediation where possible. The code allowed for remedies
not only to compensate a victim of discrimination for their loss, but to prevent discrimination
from recurring again. And that could include ongoing remedies, the kind of things courts might not order. As well this system brought to
bear expertise at two levels: the Human Rights Commission,
a publicly appointed body, was supposed to have
expertise in human rights and discrimination, a better expertise at being able to determine
where it’s happened, whether it’s happened, what
should be done about it. As well, the Human Rights Tribunal, unlike courts, was supposed to be selected based on expertise in human rights. So it’s not a court tribunal. It could be more informal, but
it has this added expertise. The system was aimed to be faster, and more effective at
promoting human rights. And the key point that
becomes controversial, as you’ll find in a minute,
the commission’s decision whether to go to a hearing or not, before the commission can
stand up at a tribunal and advocate that there was a
denial of human rights, here, it was expected that, as a public body, law enforcement body, it would
first look into the case, investigate, and try to settle it. And it would only go forward with the case if it’s looked into it, gathered evidence, decided there’s enough
evidence to warrant a hearing, and dealt with the
respondent that won’t settle. For an appropriate settlement. The final feature of this
public enforcement model is that the Human Rights
Commission, as I said, when it stood before the
tribunal was not simply there as like the free lawyer
to the complainant. They were there to represent
the public interest, so they could seek
remedies, not only damages to compensate a person who lost their job as a result of discrimination,
but to seek public remedies that the complainant
might not even ask for, or even want, but which are
necessary to get the respondent to change the way they do
business in the future. And under the old system,
even if a complainant brought a case forward
and a respondent said: here, I’ll write a check
for you, will you go away? And if the complainant said: yes, I will. The Human Rights Commission
could still press the case forward, because
in the public interest, they wanted not just
money for the complainant, in the circumstances, but
remedies that make sure this isn’t swept under the rug. Remedies to ensure it
doesn’t happen again. So, great system. How’d it work? Well, mixed. And it was the subject, it was
running from 1960-61 onward. Human rights cases got more complicated, the case load got bigger,
new grounds of discrimination got added, like disability in 1982. I was involved in advocating
for those legislative reforms, just as I’d finished my studies here at the Osgood Hall Law School. Its workload grew, the complexity grew, the controversy around it grew, and what people found out, over time, was that it was, some
people were getting results, but it was mired in controversy, and the controversy from
the respondent’s side, it was alleged: this
system isn’t fair to us. It’s one-sided against us. And from complainant’s side, from the side of equality-seekers, the objection that was made was: it’s too slow. It can take years to get your case heard. You file a complaint, it could take years for an investigation to be done. It was argued the
investigations were often not as good as they needed to be. And if you get turned
away by the commission after investigation, you’re out of luck. This led to inquiries during the ’90s. Officially, one federal,
one provincial, into how to fix the system, and
various efforts at fixing it. And the various solutions were proposed. Nothing ended up fixing it. This culminates in the next phase in human rights enforcement. The most controversial. It’s what began 11 years ago, this month, in February of 2006, and it is to that that I want to turn,
now, for a few minutes. The government of the day
in Ontario, by the way, this model I just gave
you spread across Canada. It was adopted federally,
in all the other provinces. And problems that I just described were replicated elsewhere. Well, as of 2006, in
Ontario, there had been recurring concerns about this system, and this led the Ontario
government of the day under then-premiere Dalton McGinty and attorney general Michael
Bryant leading the cause, to come forward and say: we gotta fix it. We wanna come up with a complete revamp of how human rights will be enforced. The stated reasons for
it were to speed it up, because justice delayed is justice denied for victims of discrimination. But what became controversy
is what the fix would be. Well, the fix that the, what
I’d like to describe is, those first, the case
that was made for reform who pitched the new reform, then the response against it
by those who were against it. I was one of the loud folks
who was very much against it. What the government did about
the criticisms that we raised, what was enacted, and
then how it’s working. So, what was the call for reform? Well, interestingly,
the need for reform was, I think, unanimously recognized by lawyers who advocated in human rights cases or who advocated for
equality-seeking organizations. We all agreed the system was broken. But we disagreed with why
the system was broken. There were, ah, those who
said the system design was fundamentally flawed. That was the other side of this debate. And there were those of us
who said the design is okay, but it needs to be mended and improved. So those who, and we lost this debate, those of us on my side lost the debate. Those who were arguing for change, this was a group of lawyers
who do human rights cases, one thing united all of us, is was all had an equally passionate
commitment to human rights. We just disagreed on about the cause of the problem and the solution. They used to meet in mornings, sometimes, to formulate their ideas. They got the nickname “The Breakfast Club” and it was very interesting,
because when the government came forward with this
bill, those of us who united against it decided to call
ourselves “The Supper Club.” And we actually had one meeting together to see if we could broker, and we actually called that meeting: The Lunch Club. Sadly, it didn’t work. So what were the Breakfast Club folks, and everybody was genuine
human rights supporters. It’s not like anybody was saying, you know, we support it more than you do. We agreed that the system was too slow, but the Breakfast Club folks said that there was a design flaw, and here’s what their argument was. They said the problem with
the human rights system, under the old Human Rights Code, was that it did not
guarantee the complainants, alleged discrimination victims, a right to a hearing before the tribunal. In other legal systems,
including civil law, you file a claim, you can go to court. And they said what people
should be able to get is a hearing where they can
stand up and make their case. Indeed, they said, the problem was the Human Rights
Commission got in the way. It was a multiyear delay
for investigations that, at times, often, they
argued, were not well done. And the complainant was
put in the disadvantage that if they, they could
have the commission turn them away, say
that we’ve investigated, it didn’t settle, but we don’t think this case warrants a hearing. They were a gatekeeper to the system, and it was argued there
should be no gatekeeper. And if you’re turned away, you lose and you never got a hearing. They said that’s both
paternalistic and wrong. And they said if we could
only get rid of the gatekeeper and send these cases
right to the tribunal, we’d cut out years of delay, get rid of arbitrary unfairness, let people control their own case, and get rid of bureaucratic paternalism. And it sounded like a compelling case. But those of us on the
other side didn’t think so. So I’m gonna give you our side. Now, in fairness, as
I describe both sides, I’m trying to be, I used to be a Crown, I’m trying to be fair to both sides, but I have to be candid:
I thought they were wrong. As did my colleagues. But what was The Supper Club claim? And by the way, if you
go to AODAalliance.org, and look at the human rights reform link, you’ll see the whole
history of this, played out. We said that there will
always be a gatekeeper in any system; you can’t
get rid of a gatekeeper. Every legal system has one. Either de facto, or as a matter of law. So it’s illusory to think
you’re gonna get rid of one. The second thing we
said is that the problem with the old system can
be fixed by two fixes. One, fund it better. If you’ve got this huge case log, and if it’s gotten more complicated, give it more money, so it can do its job. Rather than starving it and
saying its got design flaws. And as well, we said, if there’s a problem with the gatekeeping role,
in how it’s being discharged by the commission, mend it, don’t end it. Come up with a more expeditious process. Come up with a fair process,
if people want a chance to, if the commission is thinking
of turning someone away, after investigating, let
someone have a hearing before the commission; it
can be an informal one, it’s not a full trial,
but if they want to have a face-to-face chance to be heard. Those Breakfast Clubbers said
you could get turned away without the people deciding,
ever even meeting you, much less hearing from you. Well, let ’em meet. And we put a proposal forward. But we also said there
were two other problems with the Breakfast Club proposal. With the idea of going
directly to the tribunal. And taking the Human
Rights Commission offline. The first problem, the first of these, is that it will privatize
human rights enforcement. Under the pre-existing regime, we had a public enforcement model. There was a, you the
individual, brought your case to a Human Rights
Commission, they had the duty to investigate, they
had the duty to publicly try to affect a mediation,
and if they can’t resolve the case and the
evidence supports it, they have the duty to take it to a hearing and play the role, akin
to a public prosecutor. And to seek remedies
in the public interest, not just in the complainant’s
private interest. And we argued that that’s
fundamental to effectively resolving problems of
discrimination in our society. That if we take the public enforcement out of enforcement, we lose a lot. The other of our criticisms of their, of the Breakfast Clubbers’ proposal was we said there’s a
bit of a problem here, which is, right now, under the current, or right then, under the old system, when a case went to the tribunal, there was the Human Rights
Commission to present the case. Under the new system,
who’s gonna investigate? Who’s gonna represent complainants? These folks come from
equality-seeking groups. People with disabilities,
racialized communities, and others who are systemically and historically disadvantaged. For them to go and privately investigate, have to hire lawyers,
is just not realistic, so much of the time. Respondents, typically
government, municipal, transit authorities,
municipalities, big corporations, and sometimes smaller companies, they’re more likely to
get all lawyered-up. You’ll have very unfair hearings, if they are lopsided, on
one side unrepresented, and on the other side represented, and well legally-armed, much of the time. So, the issue was joined. So what happened? Let me take you through the first phase, and then we’ll take a break. So, in February of 2006,
then attorney general Michael Bryant announced
in a news conference that they were gonna come
up with this new reform, but they were gonna have direct access to the Human Rights Tribunal, and when the question that
naturally flows from that, of who’s gonna represent
complainants in this system, he said: there will be representation. But there were no specifics. Controversy immediately broke out. Those of us who rallied against it came together to speak out against it, those who were in favor spoke in favor. There were debates in the legal community, there were debates in the media. A bill was introduced and there
was controversy throughout. At this point, I put on my
community organizer hat. I was not the chair of the AODA Alliance, the coalition I now serve as chair, but I was appointed to
serve as its human rights law reform representative,
to lead its voice on this. And we got to work. We built bridges with and
relationships with folks representing racialized communities, and others, that’s when
the Supper Club was born, by somebody inviting
us all to get together, and we started collaborating. Again on our website, you could
see how the debate unfolded, but I’ll just take you through a moment of the legislative procedure. As this issue was working its
way through the legislature, we decided to use the legislative
procedure to help focus the debate and mount our
opposition to this legislation. And to do that, we pleaded
with the government to agree to hold public hearings. When a bill passes second
reading, in the legislature, they can appoint a
committee to study the bill, including inviting the
public to make deputations. That is a way to rally
people to come forward. We asked for two things, number one: will you hold hearings and
do it around the province? And number two:
government, will you commit that everyone who wants to
get heard, will get heard? The answer, or the result of our efforts, was they said: yes, we will hold hearings. And yes, we will hold
them around the province. And yes, we will agree that
everyone can get heard. Of course, it’s hard for
a government to say no, we won’t let everybody
get heard, when the bill relates to something as
fundamental as human rights. Did I mention there was an
election coming the next year? So, we then focused our
efforts on the hearing. To get folks to go there,
and raise the concerns we raised, and I’ve just summarized. And of course, the folks on the other side of this debate did the same thing. And on our website, we
analyzed the presentations that were made at the
legislative hearings, and as the summer and the fall unfolded, especially outside Toronto, a significant majority of the presenters were closer to our side than the pro-bill side. And what happens when the
government sees an issue like this coming up in a standing committee or in a legislative proceeding
is they’ve gotta figure out, like: what are we gonna do about it? We gotta have a response line. And we had focused our message on this, “who’s gonna represent
complainants” issue, because that actually united every, I shouldn’t say everybody, but lots from the equality-seeking community. Because even folks who like the idea of the proposed reforms, a number of them shared the concern that sending
an unrepresented victim, alleged victim, of
discrimination into a hearing against a lawyered-up
respondent is not a fair fight. And is not gonna be something
that will work better for us. Well, when the government sees this, they write a script and they
give it to their members of the legislature to
read out, during hearings. And that’s exactly what happened. And in response to a
number of these presenters, at hearings around Ontario,
you can find this up on our website, the stock
line, I’m paraphrasing, that was given is: the
government has promised that they will, through
amendments or whatever, that they will ensure
that every human rights applicant has a free public lawyer throughout the process,
from beginning to the end. Now, on the one hand you might think like, chicken in every pot and a
free lawyer for every claimant. Is that realistic? But it was a natural
question for people to ask, and the government’s knee-jerk response was to promise: don’t worry, we’ll fix it. And this became, then,
a focus of the debate. The fall came around, fall of 2006, and the lineup for the
hearings got bigger, and two things happened before the bill was passed that are significant. The first is, the government,
now 11 months away from election, did something quite unique. I shouldn’t say unique; unusual. It passed what’s called a closure motion. It used its majority to say the debates at the hearings, at the committee, and the debates before legislature are gonna be time limited;
we’re shutting down debate. We’ll allow a couple
more days, and that’s it. And of the many groups
that actually had booked presentations before
the standing committee, and then had them canceled
by this closure motion, was the Accessibility for Ontarians with Disabilities Act
Alliance, my coalition. And there was actually a
day where you could pick up the newspaper and on one
hand read a newspaper article slamming the government in an editorial for canceling hearings on
a human rights reform bill, and on another page, you’d
see an ad for hearings for the human rights bill,
because they’d placed the ads and couldn’t yank them quick enough. To the average onlooker,
it looked a little weird. So that was one of the two
strange things that happened. The other strange thing that happened was that the government
came forward with a package of amendments, as they said they would, as a result of the hearings. And they included amendments to address this core issue of who would
represent complainants. What they didn’t propose
was that the government would provide free public
lawyers for all human rights applicants from the beginning
of the process to the end. The very thing they said they’d do. Instead, they proposed
creating a new legal clinic. It’s called the Human
Rights Legal Support Center. And it would be available
to provide advice and representation to
human rights claimants. It exists to this day. If you do a human rights
intensive program, you’ll get placed there;
they are fabulous people, and while I disagree
with the regime, overall, I’ve nothing but praise for these folks and their dedication and their efforts. And I encourage you to consider it. A placement there. But, in any event, they created
this center, but they didn’t ensure that it would be
able to serve everybody. Drawing on community
organizing skills that, at Osgood, I try to infuse
into lectures like this, we tried to come up with
amendments that would put the government to the test,
and we got the opposition to propose an amendment to the bill. An amendment to their amendment. Their amendment said we’re
gonna create this center. We got an amendment
proposed that would say the legal support center would provide free government lawyers,
publicly-funded lawyers, for every human rights applicant from the beginning of
the process to the end. Their actual promise. The amendment was actually
defeated by the government, voting down their own, voting
against their own promise. The bill passed. Now, before we break, I
wanna add one important layer to the debate, and after the break, we’ll talk about how it’s worked, since it passed at the end of 2006. The debate I’ve described
to you is a debate about whether we’ll have
a public enforcement or a private enforcement regime. It’s a debate of looking at two different ways of enforcing equality rights. It’s not a debate over what
the equality rights guarantee. Or who should enjoy them. It’s simply a debate about:
how do we make it work? We’ve taken ’em out of court, what regulatory system would work? And the debate between
the two sides boiled down, in no small part, to a debate over whether the Human Rights Commission was fixable or was hopelessly incurable. If you thought it was incurable, you were likely to say: get rid of it. If you thought it was flawed
but fixable, you might be more inclined to the side
of the debate I was on. But there was an added
disability perspective on this, and that’s what I’m gonna just
spend two minutes on for you. In other lectures in this
video lecture series, and other times when you hear me speak at the law school here,
you’ll hear about the fact that from 1994 to 2005,
I and others got together to fight for the creation
of a new law, passed in ’05, the Accessibility for Ontarians
with Disabilities Act. It was a new regulatory law aimed at requiring organizations,
public and private sector, to tear down the barriers,
the accessibility barriers, that impede people with disabilities. Without us having to
litigate them under the Human Rights Code, without
them having to go through what I did, having to
take two cases against the Toronto Transit
Commission, once to force them to announce subway stops,
and another to force them to announce bus stops for the
benefit of we blind people. Well, that law was there to try to, we fought for that law to
try to make human rights become a reality for
people with disabilities, without them having to go through any of these kind of case by case battles. It wasn’t to replace
the Human Rights Code, it was there to reinforce, and make them become a reality in our lives. Well, during that decade-long debate over that accessibility
law, the question came up about how those rights would be enforced. Now, we get back to this
debate I’m telling you, this human rights reform debate. You see, everything I’m
gonna tell you about, over the next two minutes, predates the human rights
privatization reform. And what happened is, when
the government turned to us in 2002, 2003, 2004, 2005, said: how do you want this new
disability act enforced? We said: we’d like an independent, arms-length enforcement
agency created for it. Now, the government passed
the accessibility law in ’05, the Accessibility for Ontarians
with Disabilities Act, and they put enforcement powers in it, but they didn’t create an
independent enforcement agency. And they said they didn’t
do that because we still have resort to the Human Rights Commission to enforce our rights, if we
need an independent agency. And we shook hands on that in ’05. We said: you passed a
good accessibility law, it’s not everything we want,
but it’s real progress. Months later, in ’06, along
comes the same government that rips out the Human Rights Commission as the key public
enforcement independent body. We said: that’s not fair. That’s undoing a deal. And that’s a real step backward
for people with disabilities beyond the harm that,
we argued, this reform, the human rights reform,
caused for everyone, for everyone in the
equality-seeking community. So let’s take a five-minute break now, and then when you come back, let’s talk about how it works. Which side of the debate was proven right? Welcome back, I, ah, if you read anything
on this entire debate, by the way, you’ll
often see it referred to as the Bill 107 debate. And that’s because the
bill that was introduced to amend the Human Rights Code in 2006, and that passed at the end of the year, after that closure motion, was Bill 107. So, how’s it working? Well, you would expect
those who argued for it, in favor of it, to simply
say: we were right. And those who were against
it to say: we were right. And to some extent,
there’s a measure of that. But we do have practical
experience to turn to. And speaking for myself,
as I endlessly do, I’ve always been prepared to be wrong, and in fact, I would be
happy to eat crow and say: you know what, in good
faith we had these concerns, but it worked out better than we thought. This is not an ego
investment or something. And the way we could
have been proven wrong was easily, was this: you
see, under the old system, remember I said that the Human
Rights Commission was the one that brought all the
cases to the tribunal, the ones they didn’t resolve
and the ones that they thought warranted a hearing, the
Human Rights Commission brought somewhere between 50 and, I don’t know, 150 cases a year, of the many more complaints
that they received. Some of those cases were
groundbreaking public interest cases like my case against the TTC, which had ramifications for
route stop announcements in public transit authorities, not just in Toronto,
but elsewhere in Canada. Other cases that really
pushed the outer boundaries of equality and made a lasting impact. Other cases were just one-off
disputes between the parties, which had no sweeping
precedential significance. If, and under the old system,
the Human Rights Commission actually had the power to
initiate its own cases, even if it didn’t have an
individual complainant. If they, through general feedback, found there was a recurring discrimination problem,
they could carry on. Now, under Bill 107, the
Human Rights Commission was not abolished, it was
just radically downsized. In terms of its size and its duties. Its new role would be principally as a, to develop human rights policies, to educate and advocate on human rights, but it also had a reduced power to bring what its proponents called:
systemic discrimination cases. Now, here’s where I could have been wrong. I and my colleagues, who
were opposed Bill 107, we could have been wrong
if, under the new system, the Human Rights Commission
brought to the tribunal as many cases as it brought under the old. And if they were all
public interest cases, not one-off, he said, she saids, but all public interest cases. I’m not disparaging the one-off
cases; they’re important. But if they were all groundbreaking, and if, in addition to that,
the Human Rights Tribunal got the added load of
cases from the Human Rights Legal Support Center, then I’d
have to say: you know what, there’s more human rights
justice being administered. And if it turns out to be quicker, I’d have to say: it’s also quicker. And while our fears were genuinely
expressed, we were wrong. Well, how’s it worked? Well, under the, a
number of those who were the lead proponents for the new bill ended up in leading roles implementing it. And that’s the way it should be. They were the creators of the ideas, they would be the most passionate about making sure it worked. And credit to them to take on those roles. We have a chance to
assess, we had a really, a good chance to formally
assess how it was working, because one of the few things we got, in the Bill 107 debate, was a
beefed up provision requiring, after three years on the
books, that the government would have to appoint
an independent review to consult the public and
report on how it’s working. Then it wouldn’t be us just
hypothesizing what might happen, but what did happen. That review was conducted. It was appointed, the
bill went online in ’08, the review was appointed in 2011, held hearings in the spring of
2012, and reported that fall. And you can see in the
materials I’ve given you for the class and on our website, we made detailed submissions
to the independent review, and we provided an analysis of its report. Just one moment on the
review, and then I wanna spend my time on the content of
what everybody had to say. We had concerns about
who conducted the review. Before the review was
appointed, one of my colleagues, representing another community
interest, community group, wrote the then attorney
general, Chris Bentley, and said: whoever you
appoint to do this review should have expertise in human rights, but they should not have
been one of the proactive participants in the Bill
107 debate on either side. We’d like this to be an independent look. Let the facts speak to
an independent mind. The government didn’t
listen, and they appointed a fellow to conduct the
review named Andrew Pinto. I have a lot of respect for Andrew. He’s a very good lawyer, he’s a dedicated human rights lawyer, he has great expertise,
and he really cares. I don’t question his
commitment or his abilities. But he was one of the active
proponents for this bill. In fact, when we, the AODA Alliance, held our first news conference
to unveil our criticisms of the government’s
proposals, he and couple of his colleagues came
to our news conference in Queen’s Park to tell the
media why we were wrong. Now, that’s just democracy; that’s fine. That’s fair game. But that’s not the person to
whom we should be turning, three years later, and saying:
here’s why we have concerns. Nevertheless, I don’t wanna
make personalities an issue and emphasize that I have
a lot of respect for him and the work he did on the commission, on the independent review. But here’s what was presented
to the independent review. From the point of view of
those who thought the system, who advocated for it or
thought it was working well, they said under the new
system, things are quicker. Under the new system, you get
to the Human Rights Tribunal quicker, and things are
really moving forward. For those who were concerned,
and the AODA Alliance was among those, and we
filed a brief with Mr. Pinto on March first, 2012,
which I’ve provided for you and we’ll put a link to
it with this lecture. It’s a brief that a good number of other community groups endorsed. We provided, I think,
the most thorough going critique of the system. Here are the concerns we raised. First, we said that the
government has not met its commitments on this bill. They promised that under this bill, everybody would get a
hearing on the merits before the Human Rights Tribunal, within a year of filing a complaint. And that deadline wasn’t met. As for those, we said, who
argued the new system is faster, the fact is there was a substantial increase of funding to the new system. And so, it can’t fairly be
said that the speeding up of the system was due to the new system. If you’d given that same
money to the old system, it might have been just as
fast, maybe even faster. We don’t know. But it’s wrong to say that any speeding up is due to a new enforcement regime. We argued that the concern
that we raised in 2006 about legal representation has turned
out to be absolutely true. Reports from the Legal Support Center and from the tribunal
showed that a significant majority of those who
actually appear as applicants, as discrimination claimants,
were unrepresented, where as respondents were
disproportionally represented. The Human Rights Legal Support Center, in its earliest years,
couldn’t even answer all the phone calls it was getting. There was reports of
people having to hang up, they couldn’t stay on the
queue line long enough. Wait long enough on the queue. Now, the Legal Support
Center has substantially improved that process
from what we understand. But nevertheless, that was the situation. But not only that, those who
go to the Legal Support Center, a significant proportion
of them, can get advice or maybe helped partway
through the process, but they don’t get full,
independent legal representation throughout the process. Some do, from what we were told. Many, if not most, don’t. So a commitment made to us was lost. But there were other problems, as well. We were told the Human Rights Commission would become a strengthened
presence before the Human Rights Tribunal,
bringing its own cases or intervening in individual ones. Freed up from the burden
of having to go through all the cases that used
to come to its front door. In fact, it virtually never,
in the first couple of years, went to the tribunal. That’s increases somewhat,
but it’s certainly nothing like what it used to be. With respect to the process
at the Human Rights Tribunal, concerns were expressed that the rules, reformed after the Bill 107 was passed, were too complicated for
laypeople to navigate. The old rules were designed for lawyers, because typically the cases were presented by commission lawyers and respondents, quite often, had counsel. But now we’re in the new world where you at least have one side unrepresented, much if not most of the time. You need a whole different kind
of rules to be fair to them. There are other problems. The old system had a substantial regime for public accountability. The Human Rights Commission
was a public agency. Its senior commissioners were
appointed by the government to represent perspectives and
expertise in human rights. And I’m not questioning the commitment and expertise on human
rights at the tribunal or the Legal Support
Center, don’t get me wrong. But the Human Rights Commission
rendered an annual report, publicly, which gave a
complete picture of the system, with all its warts. You knew how many cases were in it, you knew the resolutions,
because they almost never signed a confidentiality clause. You knew what public remedies they got, what private remedies they got. You knew how long the delay was. You knew everything by
looking at one document. Under the new system, it’s not like that. Because some complainants go to the Human Rights Legal Support Center, some go to other people to represent them, legal clinics or private lawyers. Some go on their own. Some settle cases privately. There’s no one place that knows and makes public all the resolutions. Moreover, the Human Rights
Legal Support Center, and I don’t mean any criticism of this by, by what I’m gonna tell you, they often agree to confidentiality
clauses in settlements. Now, in private litigation, that can happen a lot of the time. But the Human Rights Commission,
when it handled these cases had a public accountability role, which led them to be
public, most of the time, in what resolutions they reached. So we were able to look at the old system and know what public interest remedies they got or didn’t get, against who. In the new one, if a client
agreed to it being public, the Legal Support Center
could make it public, but if they don’t, the
Legal Support Center has a professional duty
to keep it confidential. Moreover, under the old system, even if, as I explained before the break, even if the claimant and the respondent wanna settle a case, for
some cash or whatever, if the Human Rights Commission
wanted more remedies in the public interest,
they could insist on it. Under the new regime, yes,
the Legal Support Center can recommend to their clients to seek public interest remedies, and yes, clients could agree to seek it, but if they either don’t
want to, or the client, or the respondent doesn’t
agree, they still can settle with none of them, and we can’t police it from monitoring it to know whether we’re getting better or worse
results than we used to. Now, I’m not accusing
anybody of cover-up or any of that kind of stuff. The Legal Support Center
is more in the role of a private law firm in this case, in relation to their clients. Not of a law enforcement agency. There are other problems. There is a huge problem that we reported, and I don’t know that
it’s ever been fixed, regarding the enforcement
of settlements or of orders. Under the old legislation,
the Human Rights Commission had the power to enforce,
and if a party didn’t comply, they could take them to court. Under the new system,
it’s up to the individual. There’s no public enforcement of remedies. And so we’re left to worry how much, how many of the remedies
are being complied with, settlements or orders,
and if not complied with, what’s being done about it? I can tell you from all of my
disability rights advocacy, enforcement is pivotal to everything. And being able to see
what’s really going on, across the system with enforcement, is pivotal to enforcement. There are still other problems. Remember I said that the
critics of the old regime said it was wrong to have a gatekeeper? Those of us on the other side said: look, under the new system
there’s gonna be a gatekeeper. Like, don’t kid yourself,
there’s gonna be one. Well, we’ve argued that there is. In fact, there are two. Here’s how the argument goes. Number one: the Human Rights Tribunal has the right to dismiss a case upfront under some discretionary basis, if it sees the case is
essentially meritless. That’s a kind of gatekeeping role, or outside its jurisdiction. I’m not going into the technical language, but it is a capacity, a limited capacity, but to throw cases out without
a hearing on the merits. So we got one. And it’s a legal one; if
they throw it out, it’s out. But there’s a second
gatekeeper, we argued. And that is the Human
Rights Legal Support Center. Now, it’s not in law a gatekeeper. But as a practical matter,
we argue, for many it is. If the Legal Support Center
decides not to take your case, many will just go away. For them, it’s over. Now, those who are on the
other side of this debate will say, hey, Lepofsky,
there’s a huge difference. Under the old system, if
the Human Rights Commission turned a case away, said: we’re not referring this to a hearing. We’ve investigated it,
we’ve tried to mediate it, we think it doesn’t warrant a hearing. At that point, the complainant is sunk. They cannot go to the tribunal. And in response to that complaint, the critics of my position would say, under the new system, if
the Legal Support Center says: sorry, we can’t
represent you, or we won’t. We either don’t think you’ve got a case, or we don’t have the resources. The individual can still either
try to find a private lawyer or a legal clinic, or go on their own. And they argue: some do. But we argue: some do, doesn’t disprove that for many, they won’t. And so that functionally, the Legal Support Center’s
becoming the very gatekeeper that the proponents of Bill
107 said we should never have. De facto, not de jurais. Now as well, those of us who’ve
criticized the new system, we argued that there is an added problem that the Legal Support Center has created. Actually, two, but they’ve done it, as with everything they do, in good faith. For one thing, the Legal Support Center has said they want to
bring some test cases or set some priorities,
because of what they see repeatedly coming in the door. Now, that makes sense. Because they’ve got limited resources, they see what comes in
the door, and so on. However, that’s exactly what the Human Rights Commission used to be. They, what they’re in effect acknowledging is the old system kinda
had the right idea. But in the old system,
it was a public agency, not a private, well, I shouldn’t call it a private legal center,
but a government-created legal center with a
government-appointed board of directors, but without the kind of public oversight and scrutiny that you would get when a Human Rights Commission
decides to set priorities. Not saying they’re wrong to go there. I get why they do, but that’s why you need a public enforcement agency. Not one modeled along a legal
clinic role, as they are. The other thing is that
the Legal Support Center, facing a barrage of more
cases than they can handle, came up with the solution, in good faith, to try to triage their work, and it’s one that some think is a good idea, and I personally think is a bad idea. It’s called: unbundled legal services. Typically, when you go to
a lawyer, you retain them, and they take you through the case. The Legal Support Center’s
decided to unbundle this so that if you go to them, they may say: look, we’ll advise you on
drafting your application, then you’re on your own. Or: we’ll advise you on
drafting your application and we’ll represent you on the mediation, but we won’t commit now that
we’ll represent you after that. We might, we might not. But they’re overloaded. They’ve gotta ration their resources. I get that, too. But the problem is you’ve gotta view this through the eyes of a
human rights complainant. Before you embark on
a piece of litigation, especially one against
a major organization that’s gonna get all lawyered-up, you wanna know with some confidence if you’re gonna be represented throughout. I described unbundled
services like boarding a cruise ship at New York for
London, but one that says: we promise we’ll get
you to the mid-Atlantic. When we get there, we’ll let you know whether we’ll take you
the rest of the way. And I just fundamentally
think, from the perspective of an organization trying
to ration their services, I totally get it, but from the perspective of an equality-seeking applicant, that would be a real deterrence. Now, obviously it’s not
a complete deterrence. So people use their services. But what it can do is put undue pressure on a complainant at mediation to settle, because they don’t know that their gonna have a lawyer if they don’t settle. Or representation. It just seems to me, logical. There is one or two other
problems that I wanna focus on. The new system created a new problem, a new barrier for applicants. One that didn’t exist
under the old system. And it’s the risk of costs
being ordered against you. Now, let me be clear,
the Human Rights Tribunal does not order and cannot order
costs against an applicant. They couldn’t before,
under the old system, they can’t under the new system. So an applicant who brings a case forward, a complainant, doesn’t have to worry, that if they lose, they’re
not only out of luck, but they’re gonna have to pay
the other side’s legal costs. Those who, from a
respondent’s perspective, don’t like this system, will say: that’s not fair, because
that means you could just, all you gotta do is file a complaint, and then the respondents
have to run around and go lawyer-up and incur a lot of costs, and if it’s meritless, that’s not fair. That’s their argument on that side, but let me explain to you,
and you gotta remember that equality-seeking
folks, especially from the disability community, are
disproportionately unemployed, underemployed, impoverished,
welfare-dependent. Running a risk of costs is
not something appealing. Not that it is for anybody,
but it’s especially risky, risk-prone of being a barrier. So, where’s the cost-burden
in the new system? Well, it goes like this: let’s say you bring a
human rights complaint, you as an individual, and let’s say you go to the tribunal and let’s say you win. And let’s say the
respondent goes to court. That’s not a right of appeal, it’s called an application for judicial review. You’ll learn about that in
your administrative law course, later in law school. But it’s a chance to mount
a legal challenge in court. And say the tribunal
exceeded its jurisdiction or made reversible, legal errors. Let’s say the other side brings a judicial review application. You’ve then gotta go to
divisional court to defend it. And if you lose, the divisional court can order costs against
you, the applicant, for the judicial review application. Pay for the other side, a portion of the other side’s legal fees there. So let’s say, let’s roll this back, you go to the Human Rights
Tribunal, you mount your case. You think you’ve got a good case, but the tribunal finds for you but makes some really boneheaded legal mistakes. We got a great Human Rights Tribunal, but having been a criminal
appeal lawyer for 23 years, no court is immune from making mistakes that lead to reversals. Some of the best judges do. Heck, that’s what kept us
busy as appeals lawyers. So, what happens? You argue your case,
leave it to the tribunal. They write the reasons and
they make the legal errors. You can’t control it, you can’t stop it. But then the respondent takes
you to divisional court, they persuade the divisional court that it was reversible
error that should lead to a judicial review overturning. You’ve gotta pay the bill for the legals for the other side for
errors made by the tribunal, that you couldn’t control. It’s a new cost risk. And frankly, in a system like this, I’m gonna give you a hypothetical, I can’t point to a case
where this has happened, but I’m gonna give you a hypothetical. You could have a respondent who wins, er, pardon me, a complainant
who wins at the tribunal, and a respondent call up
and say: look, we’re gonna seek judicial review and maybe we’ll win, and maybe we’ll lose,
but let’s say we settle. The tribunal ordered a certain
amount of money to you, why don’t we settle for half? And then we won’t seek judicial review. You’ve got a financial burden for this. Now, under the old
system, how did it work? Under the old system, you could actually appeal tribunal decisions to court. I argued a couple of
those for the commission. But if there was a cost
order, it was against, typically, it was against the commission. Not the individual. And at the tribunal, the
tribunal could order costs against the commission
if the case was frivolous or vexatious or brought in bad faith. The commission was a public
law enforcement agency, and if it went off the
rails by pursuing a case that was really, severely flawed, it could be exposed to costs,
but that’s the public purse, not the human rights complainant’s pocket. So the new system, I’ve just
walked you through a process that shows the new system created this, created this new financial barrier. Final critique of the old reforms, and this one, I gotta tell you, was really hard to ferret
out, and took a ton of pro bono volunteer hours to get to. When the Breakfast Clubbers, the folks who passionately advocated for Bill 107, and did an excellent job, I must say, at community organizing and advocating. I mean, they won the legislation. They came up with the idea,
they sold it to the government as a good idea, and they
persuaded to adopt it, and they, with a number
of us on the other side, they were successful and we weren’t. And I credit to them for
the effective job they did. Who did they point to, to draw
media attention to the claim? They pointed to the
discrimination complainants in the long lineup at the
Human Rights Commission. They said there are thousands
in line who have to wait for years, and it’s not fair. Some of them just give up. And others are turned away after years, and a few get through. Some get settlements
and a few get a hearing. And what they said was: this new system is
gonna be so much better. So what we did is we said:
okay, after three years, what happened to the people in the lineup? What happened to the people
that were in the lineup, the day the new system started? Now, again, Lepofsky puts
on community organizing hat. When Bill 107 was first introduced, the plan was, they had to
have a transition plan. What do we do with the new law? When the new law goes into effect? Well, the government’s initial proposal, Michael Bryant, the attorney
general’s initial proposal was that anybody in the old system immediately had to jump to the new system. What that meant was, you
could have been in that lineup for seven years, but unless
you were in the middle of a Human Rights Tribunal hearing, you had to start all over again, with no Human Rights
Commission investigation, get your own lawyer, get started all over. And what we said to the government is, not only is that a really bad idea, as a matter of public policy,
but it’s a really good idea for us as a matter of
community organizing. Because we will try to make
sure that there are TV cameras at the Human Rights
Tribunal the day it starts, and you will love to see
the coverage of hundreds, if not thousands, of
human rights applicants who are just so thrilled at
what you just did to them. Well, the government got,
sort of, the message. We proposed that a better solution was to let the old system run its course for the old applicants, and the new system would be available for any new cases. It made sense. Well, the government didn’t
wanna go all that way. They went partway. They created a transition regime where, for a certain number
of months, if you were in the old system, this is
a certain amount of months after Bill 107 was passed,
you had the choice: you could stay at the
commission, see if your case could get resolved, or
go right to the tribunal under the new privatized regime. But after that transition
period, everybody goes to the new system, even
those in the backlog. So we said: what happened? And we tried to track the cases. And we found that a whole
bunch of people stayed at the commission, commission
adopted an expedited process, and cleared through, resolved,
a substantial number of them. And a certain number
jumped to the tribunal, but what we found was that
885 of the 4,000 or so cases in that backlog, when Bill 107
was enacted, just vanished. Their cases weren’t resolved,
their cases didn’t go forward. Almost 20 percent of the very people, almost 25 percent of the very people, who were the core public
focus of the victims of the old system, were
lost in the new system. Moreover, the Human Rights
Legal Support Center, for understandable reasons
of managing its resources, said it would not advise
anybody in the old system. It had to start afresh with
people in the new system. So there were 885 people who vanished, weren’t served, and there was no one there to help them after the
transition was over. And we said: that’s just not fair. And by the way, ferreting
those numbers out took hours of trying to get disclosures and then trying to compare numbers. So it’s enough to whine, as I do, but what about a solution? So we presented these
problems to the Pinto review and we said: we’ve got a solution. And it’s a solution that
will bring the opponents and the proponents of Bill 107 together. It will draw on all of our concerns, where none becomes a loser. And it’s a solution that we
have an actual proof it works. What’s the solution? We said: let’s do a hybrid. Why don’t you recommend a hybrid between the pre-Bill 107 regime, the public enforcement regime, and the post-Bill 107
regime, the private regime. Call it a hybrid. What does that mean? You wanna bring a discrimination
case, you got a choice. You can apply to the
Human Rights Commission and use the old system, or you can go right to the tribunal
and represent yourself. Or try to get the Human Rights Legal Support Center to help you. And we said that would let
people vote with their feet, or if you will, with their
wheels, if they use a wheelchair. That was a joke, by the way. And what that would
mean is, people who want the public enforcement
option, they’ve got it, but if they don’t like it
or don’t wanna wait for it, or they can get their own representation, use the privatized regime. That will cover everybody. Now, that would then end the debate between the Breakfast Clubbers
and the Supper Clubbers. It’s like a lunch solution. But we said: not only is it hypothetical, we had a couple of years
of experience with it, because that was the transition regime that the government implemented. Remember I said that
during the transition, those in the backlog had
the choice of staying with the commission that had
adopted reformed procedures, and those who wanna go
directly to the tribunal. And at least then, we
saw a whole lot of people stayed with the commission,
as we had called for, the commission reformed its process, as we called for, there
was a funding injection, and guess what: they blew out the backlog. Now, obviously, I want a better system, so that 885 people don’t vanish. But still, it’s a complete solution. So what did Mr. Pinto do? He found a lot of the
problems that we identified. That all sides acknowledge. That too many people were unrepresented, that the system is too complicated, that the tribunal rules
were too complicated. He said that, you can read his report, I don’t wanna, whatever I say is going to be an oversimplification;
I’ll be accused of skewing it. But, in any event, he concluded that the Human Rights Commission
was not bringing enough systemic cases to represent
the public interest and so on. However, despite all of
that, he called the system a qualified success
and there’s a consensus of support in favor of it. We said: whoa, consensus of who? Qualified success, we didn’t agree with. And in the one finding that
I would take the strongest exception with, when he pointed
to the government’s promise of free lawyers for every
applicant, he essentially said: well, some might read it
that way, but in any event, the government, by passing
an amendment rejecting it during clause-by-clause
debates, there was no promise. Our answer was: a promise is a promise. It doesn’t become a null
promise because one side, unilaterally, says:
sorry, changed my mind. So what do we do now? I conclude with a couple of observations. I conclude by saying we
still need significant reform in our human rights system,
and that we’ve now got seven or eight years
experience worth studying. Our brief to the Pinto review in 2012, and our critique of the
Pinto review’s report, which are all gonna be
linked to this lecture, provide an indication
of where we were then. We did an independent
review to take a look at where we are now,
and I think it’s worth looking at the system and going for the hybrid option that we proposed. I think it’s worth looking
at some of the reforms we said to immunize
complainants from this unfair cost barrier, it’s worth
looking at the system from the perspective of undoing the harm to people with disabilities
of the government flip-flop on whether we’d have an
independent enforcement agency for the disabilities act,
we’re still pressing for that. To this day, without any hesitation. And it’s worth looking
at the hybrid option. And finally, it’s worth looking
at Human Rights Commission, frankly, proving me wrong,
bringing as many or more cases as there were under the old system, to show that a public
agency, targeting public recurring problems can
make a huge difference. When it comes to the
commission developing policies on human rights, that’s all well and good. But people aren’t, some
would follow those policies, but they won’t be taken
really seriously by as many, if they, if obligated organizations don’t fear effective enforcement. So I conclude with that. We started just saying: isn’t equality rights gonna
be interesting to study? I conclude by telling
you: you’re gonna find equality rights really
interesting to study. And underlying it, though,
what will pervade you, your thinking about it, I hope, is that debating what those
rights mean is one thing, but discussing how they’re
enforced is equally interesting, equally important, and equally essential. Thank you very much. (applause)

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