About a month ago and with very little fanfare, the Ministry of the Attorney General released Andrew Pinto’s Report of the Ontario Human Rights Review 2012. Frequent readers of this blog are aware of the background to Pinto’s appointment and the review process.
The low level of government, public and media focus on the Report over the last month or so is perhaps not surprising given other distractions - Premier McGuinty’s recent resignation, prorogation of the Ontario Legislature and the pressing labour relations issues facing Ontario’s education and medical sectors. In the new year we can expect greater focus on the Report and how implementation of some or all of its recommendations will impact the future of Ontario’s human rights system.
Those of us practicing human rights law with a keen interest in Pinto’s views have now had a few weeks to “kick the tires”, so to speak, of his 200+ page Report and to mull over his 34 recommendations for reform of the Tribunal, the Commission, the Human Rights Legal Support Centre and the system as a whole. The bottom line conclusion of Pinto’s Report is that Ontario’s human rights system is working better now than it was prior to the 2008 reforms but it still faces some important and urgent challenges that the government must address. Since 75% of all complaints filed with the Tribunal relate to employment, employers are a key group that will be impacted if the Report’s recommendations are implemented. What are the Report’s key recommendations that employers may want to be aware of? They include the following:
- Higher damage awards – Pinto’s view is that in cases where discrimination is found to have occurred, the Tribunal’s general damage awards have routinely been too low. This trend, says Pinto, risks trivializing the social importance of the Human Rights Code by creating a license fee to discriminate. Pinto recommends that the Tribunal reconsider its current approach and significantly increase its general damage awards. This is the recommendation that is creating the most “buzz” within the legal community, since it could have a significant impact on the system. It is difficult to fathom the source of Pinto’s jurisdiction to make such a recommendation or the Tribunal’s ability to alter its established damages jurisprudence on such a basis, but the recommendation sits front and centre in Pinto’s Report.
- Reinstate duty counsel – Pinto recommends that the Human Rights Legal Support Centre’s duty counsel program that existed in Toronto prior to 2009 should be reinstated. Duty counsel assists self-represented applicants at mediation, which can have the effect of helping to manage unrealistic expectations of a self-represented applicant. Given that Pinto finds that the Centre’s lawyers have approximately a 20% better settlement rate at mediation than exists in the system as a whole, reinstating duty counsel could be a positive development for employers seeking to reach reasonable settlements at mediation.
- Bring more efficiency to the application and hearing process – many of Pinto’s recommendation attempt to remedy inefficiencies in the application and hearing process, including reworking the Tribunal’s forms, preventing the improper naming of personal respondents, improving service of applications on respondents, no longer requiring parties to identify documents and witnesses at the initial stage of a complaint and encouraging “active adjudication” at Tribunal hearings. This last recommendation is building on a trend we have seen in relation to other administrative decision-makers, including the Ontario Labour Relations Board, to expedite hearing processes while still ensuring that the parties have a right to be heard.
- Mediation – sooner and more informed: In 2011-2012, mediations typically took place within 8 months of the filing of a complaint and settlements were reached in 62% of the 1635 mediations held by the Tribunal. Pinto recommends that the Tribunal dedicate resources to ensure that mediations happen as early as possible in the complaint process and that data is compiled and made publicly available regarding the terms and conditions of settlements achieved at mediation. On one hand, the availability of such data could help employer counsel manage the expectations of (typically self-represented) applicants regarding the scope and nature of mediated settlements. On the other hand, publication of such data could prompt applicants to seek settlement terms that they would not have otherwise thought of requesting and could discourage respondents from agreeing to “creative” terms that may be made publicly available (even on an anonymous basis as proposed by Pinto).
- More public interest remedies and intervention by the Commission – the Tribunal is empowered to award public interest remedies such as requiring the respondent to conduct training, develop a policy, proactively address certain issues, and/or publish the Tribunal’s decision in a company newsletter, etc. Individual applicants tend not to request or pursue such remedies all that often, and the Commission (which is more likely to request public interest remedies) is far less involved in litigation than it was under the pre-2008 system. Pinto recommends that in all cases in which discrimination is found to have occurred, the Tribunal should be required to explain why it did not award a public interest remedy. In addition, Pinto recommends that the Commission re-engage in litigation before the Tribunal by focusing on advancing systemic discrimination cases. If implemented, these recommendations could complicate litigation before the Tribunal and increase the frequency of employers being required to resist and/or implement public interest remedies.
- Private employment sector compliance initiatives by the Commission – Traditionally, the Human Rights Commission has been active in education and voluntary compliance initiatives with public sector employers, but has less visibility and credibility with private sector employers. Pinto’s view is that the Commission should do more to engage with private sector employers with respect to both human rights education and strategic litigation on behalf of vulnerable groups who may not otherwise file complaints.
- Increase funding of the Centre and Commission – Pinto concludes that the Human Rights Legal Support Centre, which provides advice and representation to applicants, is overwhelmed by the demand for its services and its funding should be significantly increased. Pinto also recommends increasing the Commission’s funding. He urges the government not to use the present economic downturn as a justification for not adopting the Report’s recommendations, and emphasized that a functioning human rights enforcement system is even more important in tough economic times.
- Study a cost regime – currently, the Tribunal lacks the power to award either applicants or respondents their legal costs of bringing or defending a complaint. Since Pinto’s consultation paper published last year asked for submissions regarding the Tribunal’s power to award costs, many observers expected the Report to contain a recommendation directly addressing this issue. Instead, Pinto recommends that the Ministry of the Attorney General study and issue a report regarding the merits of amending the Code to create a costs regime at the Tribunal.
The political discussion in response to the Report, whether the future of the human rights system forms any part of the provincial Liberal leadership race platforms and eventually the nature and scope of any legislative changes introduced at Queen’s Park should be interesting to watch in the coming months. If you are interested in hearing about the Report directly from Andrew Pinto, he will be speaking on January 17, 2013 as part of an Ontario Bar Association dinner program called “Re-Tooling the Practice of Human Rights Law: An In-Depth Look at the Pinto Report”. OBA members and non-members are welcome to register.