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November 16, 2012

Ontario Government Releases Pinto Report

On November 8, 2012, the Ontario government released the “Report of the Ontario Human Rights Review 2012” (the “Report”), which reviewed the changes made to the Ontario Human Rights Code (the “Code”) that came into effect on June 30, 2008 (“Bill 107”).

Background

On August 12, 2011, Andrew Pinto was appointed by the Attorney General of Ontario, to conduct a review of the Ontario human rights system as required under the Code.

Mr. Pinto summarized his mandate and the purpose of his Report as follows:

“My mandate is to focus on the extent to which the current system is delivering against universally desirable objectives such as access to justice, transparent adjudication, timely disposition of cases, and the elimination of systemic discrimination.

* * *

The purpose of this Report is to provide my findings, advice and recommendations with respect to the implementation and effectiveness of the changes to the human rights system in Ontario.”

The most significant, and somewhat controversial and divisive amendments introduced by Bill 107 were the following:

  1. Human rights applications would be filed directly with the Human Rights Tribunal of Ontario (“HRTO” or the “Tribunal”), rather than with the Ontario Human Rights Commission (“OHRC” or the “Commission”).  In other words, applicants had a direct right of access to the Tribunal.
  2. The Commission would no longer receive, process, mediate, and investigate complaints and, where the Commission considered it appropriate, forward them to the Tribunal.
  3. A new agency, the Human Rights Legal Support Centre (“HRLSC” or the “Centre”), was created to assist applicants (formerly called complainants) with advice, support and representation in respect of applications before the Tribunal.  The Centre would not provide assistance to respondents.

The Terms of Reference appointing Mr. Pinto asked that he specifically consider:

  1. Whether the redesigned Tribunal is providing quicker and direct access for applicants and a fair dispute resolution process for all parties, including respondents.
  2. Whether the Centre is effective in providing information, support, advice, assistance and legal representation for those seeking a remedy before the Human Rights Tribunal of Ontario.
  3. Whether the Ontario Human Rights Commission, in its revised role, is proactively addressing systemic human rights issues through activities such as research and monitoring, policy development, and education and training.

In addition, and where appropriate, Mr. Pinto was directed to “offer advice to the government regarding any best practices that should be supported and any advice for enhancing the effectiveness of Ontario’s human rights system.  Any recommendations developed should be cognizant of the challenging fiscal context for government and should provide corresponding costs and relative benefits.

The Report is 227 pages in length and comprises 34 recommendations.  Many of the recommendations are administrative in nature. However, a number of recommendations would, if adopted, significantly impact the manner in which human rights applications are dealt with in Ontario.

This Alert is intended to appraise our clients and other interested persons of the more salient and far reaching recommendations and their implications, if adopted, on employers in Ontario.

Statistical Information

The Attorney General and other agencies provided Mr. Pinto with information to assist in the preparation of the Report.  The statistical information sprinkled throughout the Report is interesting on its own:

  1. The Tribunal statistics indicate that employment is cited in 76% of applications and disability, reprisal, sex and race are the most commonly cited grounds of discrimination.
  2. The breakdown of intake inquiries by social area reveals that approximately 80% of the Centre’s inquiries are employment related, 10% are service related (for instance, discriminatory service at a shopping outlet) and the remaining 10% are related to all the other social areas combined.
  3. Mediations occur in about 1,420 cases each year with a 65% resolution rate. From the application acceptance date, it takes about 9 months to get to mediation.
  4. For 2011-12, the average length of time from application acceptance to closure was 387 days (12.7 months), with a median of 324 days (10.7 months).
  5. In the five years prior to 2008, on average, about  9.4%  of complaints completed by the Commission were referred to the Tribunal.
  6. For cases that proceed to a full hearing on the merits, it takes 16.5 months from the initial application filing date to get to the first hearing date; and another 6.9 months from the first hearing date to the decision, for a total of 23.4 months, or just under 2 years.
  7. Of the 143 cases that proceeded to a full hearing since September 2010, 50 cases (35% of cases), discrimination was found; in 93 cases (65% of cases), discrimination was not found.
  8. Based on statistics available from the Commission’s Annual Reports, in the years just prior to the 2008 reform, it took approximately 27 months before the Commission made a decision to dismiss a case or refer it to the Tribunal.
  9. Under the previous human rights system, the average timeline measured from the filing of a complaint was as follows: It took just over 2.5 years for the Commission to refer a case to the Tribunal. It took around 4 years to get to a hearing at the Tribunal; and it took 4.7 years to get to a Tribunal decision on the merits of the case.

Recommendations

Mr. Pinto made the following recommendations, among others:

Recommendation #2

The Tribunal should take steps beyond its current Practice Direction to reduce the inappropriate naming of personal respondents.

Applicants often name individuals as personal respondents for a variety of strategic and tactical reasons.  As noted by Mr. Pinto, they often do so “in the belief that this enhances the merits of their application against corporate or organizational respondents”.

The Tribunal has a practice direction concerning the naming of personal respondents that provides, in part, that  “where there is an organizational respondent who may be held liable for the alleged infringement and is in a position to satisfy any remedies ordered, the naming of individual respondents is generally discouraged”.

A body of case law has developed at the Tribunal setting out the test for removing personal respondents from Applications at a preliminary stage.

Mr. Pinto has suggested that Applicants only be allowed to name individual respondents in specific circumstances, as follows:

For instance, the Tribunal may wish to permit applicants to name personal respondents only after applicants have confirmed that they have reviewed the relevant practice direction; or only after they provide an explanation for their belief that the personal respondent was acting in his or her personal capacity and the corporate respondent will not accept responsibility. Similarly, the Tribunal’s usual processes for dealing with this issue may be accelerated by customizing the response form to indicate whether the corporate respondent accepts responsibility at the outset for the named personal respondents’ conduct and would be prepared to satisfy any remedies that may have been ordered against personal respondents. Such measures would increase Tribunal efficiency without undermining the ability of applicants to name personal respondents in appropriate circumstances.

Recommendation #7

The Tribunal should compile and publicize data and descriptive information concerning the terms and conditions of settlements achieved at mediation, albeit in a manner that guarantees parties’ anonymity.

Prior to the 2008 legislative changes, the Commission retained anonymous data on the resolution of complaints at mediation.  Mr. Pinto suggests that this data should be maintained by the Tribunal for a number of reasons:

  1. The availability of data related to mediation outcomes will be valuable and important when applications involve novel areas of the law, the implementation of public interest remedies, and other creative and “outside of the box” resolutions that would not necessarily be possible through an award at the Tribunal.
  2. The process of capturing and publicizing mediation and settlement information on an anonymous basis would enhance the profile of mediation as a viable means of resolving human rights disputes. The availability of this information might promote the resolution of applications through mediation.
  3. Having information regarding mediation outcomes could also assist self-represented parties, who may not be aware of the types of resolutions that can be reached in a negotiated settlement.
  4. As well, applications that involve egregious and blatant evidence of discrimination are often resolved at mediation. It is important for the public to be aware of these cases and their resolution, especially where significant settlements are obtained.

Recommendation #10

The Tribunal should reconsider its current approach to general damages awards in cases where discrimination is proven. The monetary range of these awards should be significantly increased.

The Report suggests that damage awards which are too low “trivialize the social importance of the Code by creating a license fee to discriminate” and “impose a barrier on access to justice at the Tribunal.”  Furthermore, low damage awards at the Tribunal may well act as an incentive to applicants to pursue a remedy in another forum (for example, in court) rather than before the Tribunal.

Prior to the Bill 107 amendments, the Code contained a $10,000 cap on mental distress awards.  This limit was removed with the passage of Bill 107 and, the expressed concern at the time was that runaway damage awards at the Tribunal would result. This did not materialize according to Mr. Pinto:

A review of the Tribunal’s jurisprudence suggests that damages awards in the range of $500 to $15,000 are typically being awarded, and that exceptional higher damage awards of $25,000 to $40,000 have been awarded in serious cases involving sex discrimination, termination of employment, and/or multiple intersecting grounds of discrimination. In my view, with general damages awards of $5,000, $10,000 and $15,000 corresponding to low, medium and high damage awards on average it does not appear that the current range of damages awards from the Tribunal constitutes a significant departure from the pre-2008 jurisprudence on remedies. It appears that but for a few exceptional cases, the monetary awards for successful applicants are not fundamentally different than before Bill 107.

Mr. Pinto recommended that the “Tribunal significantly increase the range of damages that are awarded to successful applicants”.

Recommendation #11

In cases where discrimination is found but no public interest remedy is ordered, the Tribunal should provide some explanation in its reasons for decision.

Section 45.2(1)3 of the Code provides the Tribunal with the jurisdiction to award remedies for future compliance with the Code,  or  what  are  more  commonly  referred  to  as  “public  interest   remedies.”

Under the former Code, public interest remedies were pursued by the OHRC but, with its more limited role of the Commission following the Bill 107 amendments, it was felt that public interest remedies would not be pursued.

Mr. Pinto commented:

I reviewed 143 new applications that were identified by the Tribunal as decided on their merits since September 2010. In 50 cases (35% of cases), discrimination was found; in 93 cases (65% of cases), discrimination was not found. I determined that in 60% of the cases in which discrimination was found (i.e. 30 cases) the Tribunal ordered some form of public interest remedy. In 11 of those 30 cases, the Tribunal ordered human rights training only. In the remaining cases where a public interest remedy was ordered, such orders included that the respondent retain a human rights expert to consult on drafting and implementing anti-discrimination and anti-harassment policies; cease and desist from particular actions or policies that were found to be discriminatory; and amend policies to correct for discrimination.

In circumstances where discrimination was found and the Tribunal declined to make any public interest remedy, Mr. Pinto recommended imposing a positive obligation on the Tribunal to explain why it declined to make a public interest remedy.

Recommendation #18

The Centre and Tribunal should coordinate to reinstitute a Centre Duty Counsel service to assist applicants at mediations. The Centre should not decline to conduct the program in Toronto because of difficulties associated with extending it to other regions. However, if the difficulties are primarily associated with coordination with the Tribunal, greater efforts at coordination between the two agencies should occur.

The Centre has an 85% settlement rate at mediation which is 20% better than the Tribunal average settlement rate at mediation.  The Duty Counsel program was cancelled in 2009 “because the Centre had difficulty extending the program to centres outside Toronto”.  Mr. Pinto considered this justification for discontinuing the program to be unreasonable and, as such, he recommended reinstating the program.

Recommendation #20

The Commission should develop a litigation strategy at the Tribunal focused on cases where applicants would have difficulty advancing and proving a systemic deprivation of rights. The Commission should initiate applications and intervene at the Tribunal consistent with this strategy.

The OHRC role was greatly altered as a result of the Bill 107 amendments.  According to the Report:

In the post-2008 human rights system, the Commission’s role in individual  complaint processing is ended.  The Commission no longer accepts complaints from members of the public. Instead the Commission is focused on the policy aspects of human rights, and on trying to foster respect for human rights within the community as a whole. The Commission may still initiate its own applications before the Tribunal and intervene in other applications.

Under section 35 of the Code, the Commission has the power to initiate an application at the Tribunal and under section 37 of the Code it can intervene in applications with the applicant’s consent.

The Commission has only initiated three (3) applications under section 35, all of which settled in 2011.  Mr. Pinto determined that, since the Bill 107 amendments, the Commission intervened in 30 applications under section 37 or in less than 1% of the applications at the Tribunal.

Mr. Pinto was concerned by this low rate of litigation and participation by the Commission at the Tribunal.  He noted that “the Commission was preserved, in part, not only to promote human rights through education and outreach, but also through inquiries, applications and interventions.” and that “the Commission cannot champion human rights without becoming more involved in litigation at the Tribunal, specifically by initiating cases against recalcitrant respondents.”

Recommendation #24:

The Commission should engage in more initiatives in the private employment sector.

Despite the fact that three out of four cases at the Tribunal are in the social area of employment the Commission has not, according to Mr. Pinto, sufficiently engaged in education, voluntary compliance, or other initiatives with private sector employers, despite engaging in this work with public sector employers.”  The Report observes:

The Commission should consider taking on initiatives related to human resources practices, and engage in education and voluntary compliance initiatives with private sector employers to advance human rights. The Commission should also consider initiating litigation aimed at addressing systemic discrimination in employment practices. This strategic litigation could address systemic discrimination in hiring and promotion practices, especially those faced by new Canadians, persons with disabilities, and racialized Ontarians. The Commission should also consider engaging in strategic litigation and education work with respect to the discrimination and other human rights abuses faced by domestic and foreign migrant workers, and others with irregular immigration status, as they are among the most vulnerable groups and unlikely to be able to mount cases before the Tribunal without the assistance of the Commission.

Recommendation #33

The Ministry of the Attorney General should investigate and publicly release a report in a timely manner on the merits of a costs regime for the Tribunal based on empirical data and policy considerations. This data could be obtained from multiple sources, including applicants, respondents, other jurisdictions, social agencies, academic research, and the three human rights agencies.

Neither the Code or the Tribunal’s Rules empower the Tribunal to award costs against the unsuccessful party.  This has been a significant issue and one that was hotly debated during the review process.

Mr. Pinto concluded “that there is an absence of empirical evidence on the effect that a costs regime, or the absence of a costs regime, has upon the strategic decision-making of litigants.”  That being said:

After much reflection, and as I am cognizant of the importance of this issue not only to the human rights system, but to the wider administrative justice sector in Ontario and Canada, my recommendation is to maintain the status quo for now, but to encourage the [Ministry of the Attorney General] to investigate and report back on the merits of a costs regime for the Tribunal based on empirical data from applicants, respondents and others in the human rights system, including the three human rights agencies.

Overall Impression of the Recommendations

The Pinto Report signals that the Bill 107 amendments, after four years, remain a “new system” that is “getting off the ground” and a “qualified success”. The Recommendations fall, largely, into the category of “tweaking” and “streamlining” rather than wholesale reform.

That being said, some of the Recommendations should they be adopted will likely result in a change in the manner in which applications are processed and litigated and this will certainly be of interest to employers.  At this point, these are nothing more than Recommendations and we will continue to monitor the situation and report on any developments in this area as the government considers the Report.

 

The Labour and Employment Law Alert is published by Watershed LLP. The articles and other items in the Labour and Employment Law Alert provide general information only, and readers should not rely on them for legal advice or opinion.  Readers who need advice or assistance with a matter should contact a lawyer directly.