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The New Ontario Human Rights Model

On June 30th, the new human rights model came into effect in Ontario, pursuant to the Human Rights Code Amendment Act, 2006. I intended to write a summary of the new system, but I couldn’t see anyway to improve on the description of the new law prepared by the lawyers at Cavalluzzo Hayes. So, with the firm’s blessing, I am attaching their summary.

This new model introduces significant changes. The main one involves the revised role of the Human Rights Commission. In the old model, the Commission acted as a gate-keeper of all complaints filed under the Human Rights Code–it reviewed and investigated complaints and then decided which cases would proceed to the Human Rights Tribunal. Thus, only a small percentage of complaints were ever litigated, and the Commission had carriage of the cases during the litigation. The Commission’s role was to represent the public interest generally, and not the individual complainant. Often the public interest and the interest of the complainant were the same, but not always.  Since the Commission carried the case forward, complainants did not need their own lawyers, which made the process cheaper.  But there were huge delays in getting a resolution, and the odds of a complaint making it to the Tribunal were very low.

Under the new model, complaints must be filed directly with the Tribunal.   This means the complainant can no longer depend on the Commission to advocate on their behalf,  and therefore there may be a greater need to retain a lawyer or someone with expertise in litigating complaints.  The Commission is no longer a gate-keeper to the Tribunal, but it still has a significant role to play.   And the Tribunal has been given new powers  that have raised red flags among some advocates. For example, see the argument in this editorial by noted human rights lawyer David Lepofsky.

Although most everyone agreed that the old model had serious problems as system for addressing discrimination, the debate about how to ‘fix’ the system proved to be very divisive, even within the community of human rights advocates in Ontario. A central complaint of opponents of the new model was that ‘privatizing’ the human rights enforcement model would exclude the worst off in society who would lose their access to justice without a strong Commission advocating on their behalf (see this piece by Avy Go, for example).

On the other hand, some HR advocates argued that the Commission was failing victims of discrimination under the other model, and that even when the Commission proceeded with complaints, huge delays, and the fact that the Commission’s interests were not always the same meant that complainants rarely received any sort of real justice or remedy. (see the submission of the Income Security Advocacy Centre in the Bill 107 consultations)

It remains to be seen whether the new model will prove to be an improvement over the earlier model.

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