In December 2006 Ontario passed Bill 107 (the Human Rights Code Amendment Act, 2006), which substantially amends the Ontario Human Rights Code. The main purpose of the Bill is to transfer responsibility for human rights complaints from the Ontario Human Rights Commission to the Human Rights Tribunal of Ontario. In order to implement this change Bill 107 substantially revises the administration and functions of the Commission and the procedures and powers of the Tribunal.
Most of the provisions of Bill 107 are not yet in force. They are awaiting proclamation. However, employers should be aware that from their perspective Bill 107 is nothing but bad news. It will likely result in more complaints proceeding to a hearing and higher monetary awards. Also, complainants will have access to free legal support throughout the process. In addition Bill 107 gives courts the power to award human rights damages in civil proceedings such as wrongful dismissal actions.
Until Bill 107 comes into force, the Commission will continue to accept new complaints. In fact, after the Bill was passed the Commission launched a pilot project aimed at processing new and existing complaints faster and more efficiently.
THE CHANGING OF THE GUARD
Elimination of the Commission’s Role in Complaints
Under the existing Code, individuals can file complaints with the Commission if they believe their rights have been infringed. After investigating a complaint, the Commission can settle the matter, dismiss it or refer it to the Tribunal for a hearing.
Bill 107 largely eliminates the Commission’s role in the complaints process. Instead, the Commission will focus upon promoting respect for human rights and the elimination of discriminatory practices through policies, public education programs, research, recommendations and other such activities. The Commission will retain some rights to conduct inquiries, intervene in Tribunal proceedings and initiate applications respecting infringements of human rights. However, the Commission will no longer act as the gatekeeper which determines whether a complaint should go to the Tribunal for a hearing. Instead, individuals seeking a remedy for alleged violations of their rights will apply directly to the Tribunal.
Under the existing Code the Commission can dismiss a complaint without a hearing in some circumstances, including when it is frivolous, vexatious or made in bad faith. Bill 107 does not give the Tribunal the same power. In fact, generally the Tribunal will not be able to dispose of a timely application until it allows the parties to make oral submissions.
Therefore it appears that employers will be forced to attend hearings for almost every complaint against them, regardless of its foundation, unless the parties can agree on a settlement. However it is possible that such hearings may be less formal or complex than those conducted under the current Code. Bill 107 gives the Tribunal the power to make rules governing its practice and procedures, which rules may provide for alternatives to traditional or adversarial procedures. The Tribunal will also have the power to define or narrow the issues in an application and/or limit the evidence and submissions of the parties.
Under Bill 107 the Tribunal will retain the power to order monetary compensation and/or non-monetary restitution for losses arising out of the infringement of an individual’s rights. However the Tribunal will also have the power to order compensation and/or restitution for losses caused by injury to dignity, feelings and self-respect, and Bill 107 does not contain any limitations on the quantum of compensation/restitution for such intangible injuries. This is a significant amendment to the Code, which currently only permits the Tribunal to order up to $10,000 for mental anguish caused by wilful or reckless infringement of an individual’s rights.
Free Legal Support
Bill 107 also establishes a Human Rights Legal Support Centre, which provides free legal and other support services related to infringements of human rights and applications to the Tribunal. The Centre will also provide free legal services related to the enforcement of Tribunal orders and applications for judicial review. The section of Bill 107 that establishes the Centre is already in force. Access to this free legal support will likely lead to more human rights complaints, since individuals will be able to obtain advice respecting potential violations of their rights. Further, complaints are likely to be drafted more carefully and effectively.
Employers should also be aware that Bill 107 grants courts the power to order monetary compensation or restitution to individuals whose human rights have been infringed, including compensation or restitution for losses arising out of injury to dignity, feelings or self-respect. Still, an infringement of an employee’s rights under the Code can only be raised in court in the context of a separate action, such as a wrongful dismissal action. The Tribunal will have exclusive jurisdiction to deal with complaints under the Code.
The Commission will continue to deal with existing complaints for six months after Bill 107 comes into effect. The Commission will retain all of its powers during this period, including the power to dismiss frivolous complaints. However, after Bill 107 comes into force in its entirety individuals who have already filed a complaint with the Commission can choose to abandon it and apply directly to the Tribunal for a remedy.
THE COMMISSION’S FINAL ATTEMPT TO SPEED UP THE PROCESS
The Tribunal is currently developing processes, procedures and rules in respect of human rights complaints, and the implementation date for the new system is expected to be announced by the end of this year. In the interim, the Commission maintains responsibility for receiving, investigating and attempting to settle complaints. Therefore, the Commission has launched a pilot project applicable to new complaints as well as the 3,000 or more complaints that are already in the system. The aim of the pilot project is to speed up the processing of complaints by imposing strict timelines and mandating participation by all parties. Specifically, new complaints must be served within two months after they are filed with the Commission. When the complaint is served the parties will be notified of a fixed mediation date (which must be held within six weeks to two months after the complaint is served) and a fixed “Fact-Finding” meeting date (which must be held within six weeks to two months after the mediation date). Existing complaints will be integrated into this new process over the next few months.
Prior to the Fact-Finding meeting, a Commission investigator will send out a production letter requesting specific documents and other evidence that parties must produce within 30 days. The Fact-Finding meeting itself will involve two parts: (1) investigation, including questioning of participants, examination of documents and an assessment of the evidence; and (2) conciliation, involving “without prejudice” settlement discussions.
If a party does not attend the Fact-Finding meeting or does not provide the requested documents/evidence without sufficient explanation, the investigator may send the case to the Commission without any further notice to that party. As always, the Commission will decide whether to refer the matter to the Tribunal for a hearing.
ADVICE TO EMPLOYERS
In light of these drastic changes to the human rights system in Ontario, and the likelihood that Bill 107 will result in more hearings and higher monetary awards, employers would be well advised to review their human rights policies, practices and processes to ensure that they comply with the Code. It is equally important that employers ensure their employees are familiar with company policies and are well-educated about human rights issues.