DRAFT REPORT ONTARIO HUMAN RIGHTS COMMISSION
CONTENTS
Wednesday 15 June 1994
Subcommittee report
Draft report: Ontario Human Rights Commission
STANDING COMMITTEE ON GOVERNMENT AGENCIES
*Chair / Présidente: Marland, Margaret (Mississauga South/-Sud PC)
*Vice-Chair / Vice-Président: McLean, Allan K. (Simcoe East/-Est PC)
Bradley, James J. (St Catharines L)
*Carter, Jenny (Peterborough ND)
Cleary, John C. (Cornwall L)
*Curling, Alvin (Scarborough North/-Nord L)
*Frankford, Robert (Scarborough East/-Est ND)
*Harrington, Margaret H. (Niagara Falls ND)
*Malkowski, Gary (York East/-Est ND)
Mammoliti, George (Yorkview ND)
*Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgienne ND)
*Witmer, Elizabeth (Waterloo North/-Nord PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Hansen, Ron (Lincoln ND) for Mr Mammoliti
Clerk / Greffière: Mellor, Lynn
Staff / Personnel: Pond, David, research officer, Legislative Research Service
The committee met at 1006 in room 228.
SUBCOMMITTEE REPORT
The Chair (Mrs Margaret Marland): The first order of business is the report of the subcommittee from last week, June 8, if someone would move approval of that.
Mr Daniel Waters (Muskoka-Georgian Bay): So moved.
The Chair: All in favour of that report? Carried.
DRAFT REPORT ONTARIO HUMAN RIGHTS COMMISSION
The Chair: We will continue our consideration of the revised draft report of the Ontario Human Rights Commission. I think we have about five sections left to complete. There was the wording of one recommendation, Mr Pond, that we were going to approve today that we discussed last week, the one that was going to be circulated. We decided we would continue and deal with it today. I've forgotten which one that was.
Mr David Pond: When we get to that. There's one threshold issue we're going to have to deal with.
The Chair: Are we starting at the top of page 36?
Mr Pond: Yes.
The Chair: Top of 36 is where we are in the new printout.
Mr Pond: If I may, there's one threshold issue you might want to consider. On June 6, the government introduced Bill 175 in the House, which is the Statute Law Amendment Act (Government Management and Services), 1994, which, as you know, amends over 100 statutes. Essentially, it's an omnibus bill designed to make a lot of agencies, boards and commissions in Ontario more efficient.
One of the statutes amended is the Human Rights Code. A couple of the clauses in the bill touch on recommendations already approved by this committee. Specifically, Bill 175 would abolish the part-time boards of inquiry and replace them with a full-time standing board appointed by cabinet. As you know, that's one of the recommendations the committee made last week.
The Chair: You did move fast.
Mr Pond: Secondly, Bill 175 would grant the Human Rights Commission the discretion not to attempt a settlement in every case. Currently, they have to attempt a settlement. The bill would empower the cabinet to pass regulations detailing the criteria the commission would have to use in deciding whether or not to try to effect a settlement in a particular case. My suggestion very simply is that we incorporate references to the bill in the relevant passages leading up to the recommendations, just to show that we're both up to date and that the government is seeing things the same way the committee is -- rather facetiously. That's okay?
The Chair: I congratulate the government members between this week and last week for going back and getting Bill 175 drafted and introduced. That's excellent work.
Mr Waters: But definitely, I support what Mr Pond has suggested, that there is reference to the bill where it's apropos in our report so that people realize that indeed the committee is working and that we're not sitting here all by ourselves. Actually, at times, there have been people listening to us.
The Chair: That's excellent; that's truly remarkable. We just had a whisper filter out of here last Wednesday, and what day was the bill introduced? The next day?
Mr Pond: Early last week, I think.
The Chair: Before we discussed it, then.
Mr Pond: But I don't think it was distributed until after the meeting.
The Chair: Shall we stop at page 36?
Mr Pond: Picking up where we left off, I'm now working from the draft of the report you received on Monday, which includes all the recommendations you approved last week, in shaded ink, between pages 31 and the top of 36. So if you want to check the language you approved last week, it's in shaded ink, pages 31 to 36. Where we left off --
The Chair: Just before you go to where we left off, David, what was the one last week with the wording that for a while we were going to circulate for approval, and then when we realized we were coming back this week, we would look at it together?
Mr Pond: If you turn to page 31, which is where the shaded ink begins, I think, if memory serves me correctly -- you can correct me if I'm wrong -- recommendation 2 was one where you wanted to think about the wording carefully: "The commission should not deal with a complaint filed 12 months after the date of the alleged discrimination, except in exceptional circumstances when it decides at its discretion that injustice would otherwise result."
The Chair: That sounds good, doesn't it?
Mr Pond: I hope that's satisfactory.
The Chair: Jenny, you had a lot of input on the wording of that.
Interjections.
The Chair: Yes, you may, Mr Curling.
Mr Alvin Curling (Scarborough North): The first line here: "The committee agrees with the above. It notes that under Ms Brown, the commission is already invoking s. 34 more regularly" -- I think she said she's going to put certain things in place in order that these things would happen. She said her plan is, whenever there are cases that come in, how they are being dealt with --
Mr Pond: In the future, you mean.
Mr Curling: In the future. She kind of gave us a futuristic view of the plan she's about to do. Then, I think if we do that, we would say -- I can't say I agree with her that she's already invoking, because she said the plan was so new. So it's under that part.
I just wondered, though, if we can get into semantics. We say "is already invoking" and then we say, "The commission should invoke...more rigorously." It looks a little awkward, but I like the word "invoke."
Mr Pond: So if we put that second sentence on the top of 31, "It notes that," in the future tense, if you like, then the recommendation would make more sense.
Mr Curling: Yes.
The Chair: Is that okay?
Mr Curling: It's all right.
The Chair: Let's go then to the top of page 36, which is where we left off last week, the paragraph starting with "Lou Ronson." We actually had discussed it last week.
Mr Pond: Yes, we started in on this one.
The Chair: We just needed to know whether you want that wording of the recommendation numbered 5.
Mr Pond: Number 5, as you know, refers to the previous discussion on the full-time board of inquiry. Then we start in with Mr Ronson's recommendation, which is that essentially a panel of the commission be created to adjudicate selected cases of lesser importance to the public interest; hopefully, these being cases which would not consume scarce staff resources.
Essentially, his idea is that the complainant and the respondent would appear before this panel with the counsel they want, and then after hearing the evidence, the panel would have to make a very quick decision to dispose of the case.
Ms Jenny Carter (Peterborough): I guess we don't support that, because it would set up a process that's parallel to the current judicial system, and apparently the number of cases at the board of inquiry stage doesn't really qualify as a reason to set up another process.
The Chair: Is there a consensus that you don't wish to make a recommendation?
Mr Curling: This is the very top of 36, number 5 we're talking about.
The Chair: Actually, number 5 is the recommendation from the previous page. We're now into another matter. There isn't a recommendation worded there.
Mr Pond: I guess the only question is, if you don't want to make a recommendation at this point, whether you want to include these two paragraphs with an explanation underneath of why you don't agree with it, or whether you'd like me just to eliminate the reference at all.
Mr Curling: May I just make a comment on Ms Carter's point? What has happened is that quite a few recommendations in this respect came before us. I wondered if you could ask just him to look at all these recommendations because it's floating that Lou Ronson had made a recommendation, Dr Ubale made one, and I think someone else made another one. All we can ask them, as this report comes to us and people made these recommendations, is that they could look at these recommendations and consider what direction they'd like to go. Some talk about full-time, some talk about -- different recommendations. Instead of just dismissing it outright, just to say that this was before us and maybe they could take a look at it.
Mr Allan K. McLean (Simcoe East): I thought, when this individual was before the committee, that he made a lot of sense, and I thought it would cut down on the case loads that were there, maybe cut out some of the more frivolous claims that have been made. I would have thought that perhaps some form of an endorsement of this recommendation to deal with those lesser claims would be in order.
Mr Waters: I guess my feeling is, when you look at everything we have recommended in the report, the recommendations we have done, when you look at the new bill before the House that touches on it in certain aspects and when we talked also to the commissioner, all indications are that indeed they're moving to, shall we say, a more tightly run ship here. They indeed are streamlining the process while still keeping the ability for people to come in and have the personal touch.
I don't see the need for this. I just see what it does is that it parallels a process that is already being streamlined, so it becomes counterproductive when you do that.
I really think that, with the other recommendations, we should give those recommendations a chance. You can't go in both directions at the same time and expect the commission to be run in a more efficient manner. So my feeling is that I don't support it and I'm more than willing to put in a statement, if the committee so wishes, saying something to the effect that we believe there are enough efficiencies that have been put forward in this report to deal with Mr Ronson's concern. I don't mind doing that.
Mr McLean: That's up to you people. You do what you like. You've got the power; you're going to do it anyway. If you don't want to accept any of his recommendations, that's fine. Say so, tell us what you want put in there as wording, and let's move on.
The Chair: I'm at the wishes of the committee.
Mr Waters: As I said, I don't feel I can support this. If the committee wishes to put in something that says that we feel it's a parallel to the current system and therefore, with the efficiencies that have been requested throughout the report, we would like to give the revised system a chance before looking at Mr Ronson's recommendation, I can live with that.
Mr Curling: I couldn't endorse that. I don't think it's parallel to the current system. But you put in what you want.
The Chair: Well, we have an option of either having a recommendation, having a reference to what Mr Ronson's suggestion was, or an opinion of the committee in response to Mr Ronson's submission to the committee. So we need some wording. Or you can just leave the two paragraphs as Mr Pond has written them and add a sentence at the end that the committee decided not to take any action on the suggestion, or something like that. Is that right?
Mr Pond: Well, as Mr Waters just suggested, with the explanation he just outlined, that's no problem.
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The Chair: Is that a consensus of the committee then, that we do as Mr Waters has suggested? Well, there isn't a consensus, but --
Mr Waters: How be if I move my recommendation and then we can vote on it and move on?
Mr Curling: Can we just put in the written report that the Liberals had made this presentation, and without our making any recommendations at all just say, "This was presented to us and it's something that they should consider seriously"?
The Chair: We can leave the report with these two paragraphs as written in it, and Mr Waters would like to add that no action be taken on this recommendation at the moment until there's been time to observe the ongoing changes to the commission.
Mr Pond: That's slightly different.
The Chair: Sorry. You word it then.
Mr Pond: Mr Curling is saying we have the paragraphs and then we simply say at the bottom the committee makes no recommendation one way or another, and you're suggesting we actively explain why the committee doesn't agree with this recommendation.
Mr Curling: There are two different views.
Mr Pond: Yes.
Mr Curling: The problem I have, and we raised it before, is that the report that is out, the Cornish report, has not yet been formally responded to. If it was responded to, then some of these suggestions could say: "Listen, we already have something in place, so we're going in that direction. We don't want to act on this one." Because this is outstanding stuff and the minister has not formally responded to the Cornish report -- I don't know what direction she's going -- I would just say, "These recommendations were put forward," and they may also look at those.
Mr Waters: But if I might, indeed within the report there is a recommendation that as a committee we're sending to the minister to respond to Cornish.
Mr Curling: That's right, but that's only within the same report here. It has not yet been acted upon. So here comes right behind it another recommendation that says, "While you're considering all that, take a look at this one too."
Mr Waters: I guess what I'm saying, Mr Curling, is that we can answer these two paragraphs in two ways, "No support at this time," or we can say, "No support, and these are the reasons why." I'm willing to be --
Mr Curling: I ask the guidance of the Chair to vote on it or let's move on.
Mr Waters: The one is quite direct, "No support at this time." The other one gives a bit of an indication as to the reasoning behind why we say "No support at this time."
The Chair: So your wording is what?
Mr Waters: No support at this time, due to the fact that the committee feels that it is a parallel process and the committee throughout the report has given the commission -- I can't remember exactly what I said there -- direction to indeed run a tighter ship or given them direction for efficiencies, and therefore we feel that it's dealt with adequately within the rest of the report.
The Chair: Okay. All in favour of that motion? Opposed, if any? That motion is carried.
All right, the role of community organizations.
Mr Pond: As you will recall, many witnesses argued that community advocacy groups should have a greater role in the disposition of complaints. In particular -- now I'm on page 37 -- Karen Mock, who appeared with Mr Ronson, as well as CERA -- and I don't mention that here -- argued that community groups like theirs should have a more formal role in the actual investigation and disposition of complaints.
At the bottom of page 37, top of 38, Ms Mock gives her particular suggestions. Basically the idea is that community groups should be allowed to appear in their own right before the commission when it's investigating a complaint. Perhaps the commission should rely more on the documents gathered and the documentation assembled by the community group on behalf of a complainant. If you recall, CERA complained that often, when the commission does formally investigate a complaint, it simply duplicates the staff work already done by CERA on behalf of the complainant -- this sort of argument.
If you turn to page 38, Rosemary Brown, in her second appearance before the committee, actually addressed this kind of approach towards the investigation of complaints. Just to quote here:
"She pointed out that community groups already work closely with the commission in the development of public policy." However, "She was more cautious about the notion of extending the influence of such groups with regard to the" -- actual -- "disposition of complaints. She pointed out that under the Human Rights Code, the commission has" -- the sole -- "responsibility for carrying complaints and that allowing advocacy groups to participate in the investigatory process might compromise the neutrality of the commission vis-à-vis complainants and respondents."
The argument is that under the code, the commission as you know has a monopoly over the investigation and disposition of complaints. Her fear was that if community groups, which inevitably have their own perspective on life, get more formally involved in the investigation and disposition stages, the perceived neutrality of the process on the part of the respondents would be compromised.
Mrs Elizabeth Witmer (Waterloo North): I would support the concerns put forward by Ms Brown regarding the compromise of the neutrality of the commission, and I would not be able to support this recommendation.
The Chair: Anyone else?
Mr Waters: I think my concern with what Ms Mock is saying is that once again you end up getting into a situation where, if you go down that road, the individual who has a problem and wants to come before the commission as an individual face, without the support of a community group -- once the commission starts moving into the community group, that individual person has more difficulty getting there and to get the hearing, because it becomes more and more of a legalized process instead of a caring organization.
I very much support that the community groups should be there in an advisory capacity with the commission, but I wouldn't want to get their powers to go much further beyond that at this point. I really think, and I said this last week, that the commission to me has a human face and a human feeling about it. People feel comfortable in going to the commission, hopefully, without a battery of lawyers or a community group or somebody to push that along. If you go down the road as Karen Mock suggests, I think you might lose some of that. So I would say to encourage community groups to be in an advisory capacity, but that would be it.
Mr Curling: My comment to this is that when the minister is looking at this recommendation, just to consider the Cornish report again, because within the Cornish report it asks for more community involvement. I think when she officially responds to the Cornish report one way or the other and where she wants to go, it will address this issue. I don't want to dismiss Karen Mock's suggestion outright, unless they are prepared to look at the Cornish report. Then if I make any comment one way or the other, it tells me I am to start to examine the Cornish report personally.
There are things in the Cornish report I don't agree with and there are things that I can support. This is one of them I have problems with; not that they're not efficient and not being able to do the job, but I don't know where the resources are going to come from, when you have community organizations, in order to fund them, to educate them, to train them and what have you.
Again, I don't want to get into that. I just want to say that the minister should immediately -- that's why it's imperative that she address formally the Cornish report. In the meantime, having this before us again, because this presentation was made to us, then it would take care of the concerns that Karen Mock again put forward that are also similar to what's in the Cornish report.
Mr Waters: If I might, Mr Curling, your recommendation would be?
Mr Curling: I said my recommendation is to put this also forward, but when she's looking at the Cornish report --
Ms Carter: But we've dealt with that separately, haven't we?
Mr Curling: It is separate, I know it is separate, but the fact is it is again appearing here through Karen Mock, who stated that this is what they should be looking at in regard to supporting community organization.
I don't want to make comments on this, because I could say, "Yes, do this," but in the meantime I don't know what her response will be to the Cornish report. So I'm saying my recommendation is to maintain this in here and the recommendation basically is to incorporate this under the Cornish report and make our response accordingly. I make no other recommendation otherwise to support it or not, personally.
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Mr Waters: I guess what I'm saying is that I would like to see community groups encouraged in an advisory capacity and that at the same time I think one of the things we should be saying to the commission, and maybe this is another appropriate place to reinforce that, is that the commission should examine how to implement an effective public education and communications strategy with indeed the community, whether it be an individual or a community group. I think this might be a point within the report to reinforce that also, as we're giving direction to the commission. That would be my recommendation.
Ms Carter: If I might, we could recommend in there that in order to address the issue of access to information, whoever has gathered it, the Human Rights Commission should ensure that there is proper recording of information and that that is accessible to both the complainant and the respondent.
The Chair: Is there agreement?
Mr Curling: What did you want to --
The Chair: Did you agree with what Mr Waters and Ms Carter said?
Mr Curling: You're not supporting this recommendation; is that what you're saying? You won't be supporting that this be a recommendation?
Mr Waters: What I said, and I'll say it once again, hopefully as close to the same wording as possible, is that the Human Rights Commission initiate a strategy to use community groups in an advisory capacity and that indeed this, I think, would be an appropriate place also to reaffirm our feelings that the commission should examine how to implement an effective public education and communications strategy, to reinforce that to the commission, that we think there's some weakness there and indeed they should look at how they can do that better.
Mr Curling: By saying that, you're going to ignore Ms Brown's comment, then, that said that she's already working very closely with the community groups. So by saying that she must --
Mr Waters: I'm not saying that she isn't working very closely indeed with the community groups. I'm saying that in the case of the Human Rights Commission, as with a number of other commissions in the province that deal with people, and some very vulnerable people, that we can always strive to do better and that this would maybe be an appropriate place within the report to reinforce that once again.
Madam Chair, I would make a motion to that effect.
The Chair: Thank you. I was hoping you would do that.
All in favour of that motion? Opposed, if any? That motion is carried.
Structural changes.
Mr Pond: As you know, some of the witnesses argued that the basic problem here was a structural one; namely, that the commission was set up to adjudicate individual complaints as they were presented to the commission, but in many cases, the problems of discrimination are systemic. To give one example which Brian Shell of the Steelworkers put on the record, a victory at the commission for one complainant who had been denied a public parking spot because of his or her disability does not guarantee that public parking lots across the province will be redesigned to accommodate the needs of other Ontarians living with disabilities.
The argument here is that the adjudicative model, which is the heart of the commission, is an inadequate instrument for dealing with systemic problems. In that light, on the top of page 39 we have a couple of recommendations from witnesses who made this argument. Mary Eberts, for example, proposed that the commission should invest time and resources approaching industry groups sector by sector to persuade them to take responsibility for enforcing the code across their industry all at once, so to speak.
Secondly, the community group ARCH proposed, first, "that the commission's guidelines on the duty to accommodate should be turned into regulations" -- we've dealt with that -- but also that "the government should introduce an Ontarians with disabilities act which would set province-wide statutory standards for accommodating people living with disabilities." If that happens, so argued ARCH, individuals wouldn't need to file innumerable individual complaints alleging discrimination, because the problem would have been dealt with on a province-wide basis by law.
The Chair: Mr Malkowski would be interested in this because of his private member's bill. It fits in.
Mr Gary Malkowski (York East): That's right.
The Chair: I'm glad that you're here for this portion.
Mr Malkowski: Tomorrow morning I'll be introducing, and we'll have an opportunity to discuss, my private member's bill, the Ontarians with Disabilities Act, during members' business tomorrow morning. So we look forward to that.
Mr Curling: He doesn't want to loose his thunder now. He said he's going to put his thunder out tomorrow.
The Chair: I think that if there's agreement, and there seems to be, because you agree with this, Mr Curling, and the government members obviously would agree with this -- I'm not leading the government members; I'm asking. So do you agree to make --
Ms Carter: We've got two points here, haven't we? The first one is "that the commission should invest time and resources approaching industry groups." That's the first bullet point there. There's no problem with that; we can support that. Indeed, the more support that comes in enforcing human rights from employers or landlords, from prevention of the generating of complaints in the first place, that obviously is ideal. So I don't think there's any problem with that.
Then we have the second one. I think further consideration should be given to that by the Human Rights Commission in that it should do more policy research and so on as to what is the best way to go.
The Chair: One thing, though: If we were to have an Ontarians with disabilities act, for example, then it wouldn't mean that every single area would have to have its regulations to address those special needs. Those special needs would automatically be addressed in every area.
That would certainly facilitate the work of a body like the Human Rights Commission to start with, because it wouldn't have to go to the Education and Training ministry, for example, to look at what its act said about special needs. It would just be automatic that it would apply to every ministry.
Mr Waters: One of my concerns is that I think that government -- and I'm talking about government in the broadest sense here, in a non-partisan, hopefully, way -- has to go and start looking at things. We go out and we do housing as government and we go out and do education and all of that, and we have a number of advocacy groups that work on behalf of a number of disabled people in the province.
What I have found as I've travelled around -- and I'll take housing as an issue; I think that we've done some wonderful things -- but I think that we have to go back and start talking now to, indeed, the users of the system, the disabled people, before we start putting an act in place, as to how good a job we've done, where we've fallen down, where we've done the right thing.
When I look at housing, I look at the fact that the rules within the province for a disabled suite are so wide -- well, they're non-existent, actually. You could have the situation where you have what is called a disabled apartment that still has a call box for an entry system on a wall in a hallway, and indeed if you are in a wheelchair or if you are deaf, it's no good to you. So I think we have to talk to the people we're trying to supply the service to.
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Indeed, we want to advance them into the mainstream; they want to be advanced into the mainstream. Talk to them in advance of coming down with the law. But I think there should be a definite move somehow by all governments to go and really do this and do it well.
A lot of people who are doing advocacy for the disabled are not disabled. They don't live with the problems and therefore they don't understand necessarily all of the little idiosyncracies and so on that these people have to live with on a day-to-day basis. The only way you're going to get that information is by talking to the disabled. So I would support the fact that we rethink this, maybe look at in a different direction and start going out and talking to the community.
The Chair: I don't think --
Mr Waters: I see the Chair looking for direction on this.
The Chair: No, I'm looking to see if anyone else wanted to speak. But I don't think there's any disagreement with these two recommendations.
Mr Waters: All I'm saying is that maybe we should direct the commission or someone, the commission and government in general, for some further consideration on these two points, because they are so vital and so important that unless we communicate directly with those people who need the service -- I go back to housing. When you look at it and you --
The Chair: But if the government was to introduce an Ontario -- here I am. This is what I don't like about being Chairman. I can't really --
Mr Waters: I know you want to talk.
The Chair: I can't really talk.
Mr Waters: I always give you licence, Margaret.
The Chair: The biggest problem with disabilities is that we've made some steps to recognizing the tremendous barriers there are for people with disabilities, but 80% or 90% of the population perceives disabilities as being physical in nature and things that they can look at me and know that I'm disabled because of whatever it is.
Mr Waters: Wheelchair-bound, to be exact.
The Chair: So many of the disabilities, you can't tell that I'm disabled by looking at me from across the room -- not in fact until I open my mouth. I know you're going to say that, Dan --
Mr Waters: You put it on the record; I didn't.
The Chair: -- so I said it for you. The thing is that if a government was to introduce an Ontarians with disabilities act, the background research that you're talking about in terms of, have we progressed the right way in terms of housing, in terms of physical barriers; are we going down the right road; are the amenities that we've already decreed should be there for people with disabilities in fact the right ones; are they the solutions that the disabled community wants now, knows that work, or need they be improved -- but all of those things, all of that work would be done as part of developing an Ontarians with disabilities act. So I think that this would be addressed by the second bullet point.
Mr Waters: I've got no argument.
Mr Curling: I just want to say I agree with both of them.
The Chair: You agree with both of them. That's fine, thank you.
Mr Waters: I don't argue at all with your second point. On the first one --
The Chair: You don't argue with the first one either. Is that what you said?
Mr Waters: No, I'm saying that I don't think you're disabled.
The Chair: Thank you.
Mr Waters: But I guess what I'm saying is that because we're dealing with a community or a number of communities that are just now finding their abilities and indeed the strength within their communities to come out and talk to us about their problems, to pass a law or a bill at this point without doing our homework properly could indeed be counterproductive. I really worry about that. I think over the last few years the disabled community has indeed advanced somewhat. The disabled people have a feeling within themselves of what they need and what's working and what isn't.
I think before we pass an act and then ask for a few people to come before government, it might make more sense to go out and do some sort of hearings or something around the province and get into not only Metro Toronto but get into the fact that in my communities we have very hit-and-miss transportation. How do disabled people get around my community? How do they get down the sidewalk in the winter with three feet of snow? How do you develop an apartment that not only works for a person in a wheelchair but works for a person who can walk but doesn't have the physical strength to open a 40-pound door or slide it or that the same apartment be easily adapted for a deaf person or a blind person, that there be things within that unit that deal with all of the disabilities that we indeed have within our society?
I think that if we take a bit of time -- I'm not saying a large amount of time, and I don't want to delay the process unduly -- and do it right the first time and introduce a bill that indeed reflects the needs of the community, then we'll have done them a just thing; if we don't, it could be very much an injustice.
The Chair: There's no disagreement with what you're saying, but we're getting a little bit off track, both you and I are, because we're both going down the track for the need of another act, and really what we're trying to deal with here is what tools the OHRC should have, obviously in response to what ARCH is saying the commission needs to do. There's no disagreement with the second bullet point, from what you're saying.
Ms Carter, you wanted to speak too.
Ms Carter: I think what I'm saying is really on the same lines, that things are moving in respect to rights for the disabled. I don't think we want to lay down anything very rigid here. The commission already has guidelines for accommodation requirements and so on and what constitutes undue hardship if there's a complaint, whereas the code develops standards pertaining to undue hardship.
I think it's worth mentioning that even if we did have an Ontarians with disabilities act, there would still be cases filed with the OHRC. So we wouldn't suddenly arrive at a point where all the problems were solved. But I think the point is that this is something that's in process, that the government is working on it, doing research and consulting with people with disabilities and so on, and the development of a regulation pertaining to what "undue hardship" actually is is something that's still under way. So I don't think we want to say anything too rigid here, so that as far as an act is concerned, we could say, "We'll just take that under advisement for now."
The Chair: I think obviously what ARCH is saying here is that the commission's guidelines should really be regulations under the code which would have the full force of law. Doesn't the Ontario Human Rights Commission have the full force of the law by its own act?
Mr Pond: The commission enforces the code and has sort of a policy-making authority to issue what it considers to be the correct interpretation of the code; hence its guidelines.
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As you recall, earlier in the report, at a previous meeting, we recommended that these guidelines -- Ms Carter said this -- be turned into regulations so they're more specific and concrete for all the parties involved and have the force of law. So I think the first paragraph and the second bullet point we've disposed of, essentially, already with the previous recommendation, and then we follow with the Ontarians with disabilities act recommendation. So the first point I think we've already disposed of at a previous meeting.
The legal status of the guidelines is a matter of dispute among respondents. You'll get that argument every day of the week. So the guts of this recommendation is the second sentence, dealing with the passage of a statute.
The Chair: Okay. Do you want to recommend the second sentence in the second bullet then?
Mr Pond: That's essentially the guts at that point.
The Chair: "The government should introduce an Ontarians with disabilities act which would set province-wide statutory standards for accommodating people living with disabilities. This would forestall the need to file innumerable individual complaints with the commission alleging discrimination on the grounds of disability."
Ms Carter: I guess what we're saying is that a lot of the things we're doing anyway are working towards this end. It may be advisable to do that some time, but --
The Chair: But not now?
Ms Carter: Well, it may not be necessary.
The Chair: I'm not sure why having an act would forestall the need to file innumerable individual complaints, because if you have an act here and you want to make a claim, it's the act that gives you the power to make the complaint and the claim under the act. So I don't know how it's going to forestall them.
Mr Pond: I don't want to put words in the mouth of ARCH, and Mr Malkowski may want to talk to this, but I think the argument is, like anything else, if you set statutory standards and you assign a ministry the authority to enforce that, you're setting in place government machinery to compel -- I would suspect it's probably employers -- to comply with that. That becomes a matter of government policy, and sooner or later the relevant targets in the community will start complying with the law, as they would with any other law.
But you're quite right, Ms Carter: The notion that you pass this act today, then tomorrow you wouldn't have any more complaints, no, that's not going to happen.
Ms Carter: I guess I'm saying there are lots of things in place and it's a question of what the gaps are going to be when we've got the Advocacy Act, the building code, long-term care legislation coming through, and in any case there's the Human Rights Code. So it's just a question of, what are the actual gaps as far as people being able to make claims that their rights have not been properly considered? Perhaps Gary has something to say about it.
Mr Malkowski: Yes, perhaps I'd just like to ask for some help with language. I am going to be introducing a private member's bill, as I said, tomorrow, and then hopefully, if there's agreement by the House, have it referred to a standing committee and be having public hearings. Then as a result of those public hearings, we'll have the disabled community coming to them and then hopefully a discussion paper which could be adopted by the government to introduce a government bill called the Ontarians with disabilities act. That is the goal of my introduction of a private member's bill, because it really is an educational process, and to allow the disabled community to be involved in it and to express their concerns and their opinions. I think the government, but also the public, will then watch the process and learn from it. I'm just not sure how we put what I've just said down on paper.
The Chair: Can you help?
Mr Pond: Well --
Mr Waters: Madam Chair, might I say that as the report doesn't fully examine what such an action entails, and indeed with Mr Malkowski introducing a bill that is going to give us a better understanding of where an Ontario disabilities act should be and what it should entail, maybe what we should do is take it under advisement and keep an eye on this issue as a committee. At any time, we as a committee have the right to draw this back and deal with it in the future. We seem to be getting hung up here on this one issue, and there is movement with Mr Malkowski introducing his bill in the House tomorrow.
I really think that rather than get hung up on this, what we should do is take it under advisement and move on, but at the same time qualify the advisement aspect, that indeed this is something that, as a committee, we feel strongly about and that we will be watching where the government and the Human Rights Commission move on this issue.
The Chair: There is one other aspect. We had agreed that we would have a report come back to the committee in six months and tell us how things are going and where they are, so maybe that timing will work in nicely. When we have the six-month review, we can look at what has happened and what is current.
Mr Waters: Six months in the life of us politicians -- sometimes we forget exactly why we want things back. Might I suggest that somehow, when they return, this be flagged that this is one of the issues we wish to once again look at and see what has happened.
The Chair: We can keep that on record with the committee.
Mr Waters: And with that I would recommend that we accept that as a recommendation and move on to the next.
The Chair: You're accepting the wording of both of these then.
Mr Waters: No. What I'm saying is that indeed, in the second part, the report doesn't fully examine what the act is, and that in light of Mr Malkowski's bill that'll be in the House tomorrow, the committee should take all of this under advisement for review in six months when it comes back so that we can see whether we want to pursue this at that point or indeed whether it's coming along well on its own.
The Chair: The final wording of what you have just said, Dan, will be taken out of Hansard. If you will leave it with the researcher and me to confirm -- I mean, we're telling you we'll take it out of Hansard, but you don't want that to come back to the committee again, do you?
Mr Waters: No, I don't want it necessarily to come back to the committee. It was just showing some direction, Madam Chair.
Mr Pond: The next point is really the last one. We're in the middle of page 39. As you will recall, many witnesses argued that a fundamental problem was that the commission plays too many roles. I'll just quote here from CERA's remarks, because it's the most succinct on this point.
"The Human Rights Commission, in our view, has been set up for failure. It's been given far too many roles to play at the same time. We cannot expect a government bureaucracy to provide good advice to rights claimants and respondents and at the same time, initiate and prepare all human rights complaints...investigate these complaints, mediate and settle them, determine whether they warrant a hearing, litigate them before boards and in courts, and control public education and action on all issues of systemic discrimination in the province."
A number of witnesses gave concrete examples of where they felt human rights staff play too many roles. I'm on the top of page 40. CERA, for example, argued, and CERA wasn't the only witness who argued this, "that investigators with a mandate to `kill files,'" to use their phrase, "sometimes pressured complainants to accept" what complainants deemed to be "unsatisfactory settlements." Other witnesses, some of the employer lawyers, for example, argued "that the legal support the commission offered complainants at the board of inquiry stage" -- essentially, unwittingly perhaps -- "reflected an organizational bias against respondents," since complainants' legal costs in essence are being funded by the commission. Respondents have to pay their own legal costs at the board of inquiry stage. They suggested that this sometimes results in the phenomenon known as "nuisance settlements," whereby respondents essentially offer money to the complainants. Some of the respondents argued that this was put to them directly by commission staff, such that the complaint would "go away."
Malcolm MacKillop, a lawyer who appeared before the committee, argued there was an inherent conflict of interest when a commission officer performs both the role of mediator and then formal investigator. He suggested that these two roles should be separated.
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That's the general argument. You probably recall we heard from a number of witnesses that, and we come back to Mr Curling's theme, this problem, if it is a problem -- I'm not taking a position, obviously -- would be addressed by the Cornish report, which would create separate organizations dealing with different aspects of human rights investigations and adjudication.
Following here we have two bullet points which sum up specific recommendations made in this general area. Mr Juriansz -- this is something we talked about earlier -- suggested that perhaps we shouldn't have part-time commissioners at all. We've already dealt with that issue. But he also suggested perhaps we don't need commissioners. He argued that: "The position of full-time chief commissioner should be retained, with the power to delegate responsibilities to the full-time professional staff. In particular, the power to decide which cases should be referred to boards of inquiry should be made by the commission's lawyers."
He argued that that was basically a legal decision, and therefore the lawyers should made that decision formally. He suggested in his testimony, and I mentioned this at a previous meeting, that commissioners relied on what the staff told them. This would sort of formalize that relationship.
Dr Ubale, a former member of both the Human Rights Commission here and the federal Human Rights Commission, argues that "regional human rights commissions be set up around the province to handle complaints filed under the code," and that this reform would free the commission itself to concentrate on the broader issue of systemic discrimination. It's not mentioned here, but essentially what he's recommending is the British system of employment appeal tribunals. In Britain, these tribunals hear all employment-related discrimination cases. Then you have a central body called the Commission on Racial Equality, CORE, which handles the systemic discrimination issues. So there you have it.
I might add just one point. To go back to the first bullet point, where Mr Juriansz recommends that the full-time chief commissioner should have "the power to delegate responsibilities to the full-time professional staff," Bill 175 would empower the commissioner to delegate more responsibilities to staff in certain circumstances. The bill doesn't necessarily direct itself to this particular recommendation by Mr Juriansz, but it would give the commissioner more delegation powers.
Just to make it easier for you, essentially what you're dealing with here is another one of these major recommendations which would require substantive amendments to the code. This is not an administrative recommendation. But if you're going to adopt this essential argument that the commission plays too many roles, you're requiring that the code be very substantively amended. Just so that you understand that.
Mr Curling: I wanted to comment on this. As Mr Pond said, it is quite a major change and it's something that's already been somehow approached in the Cornish report. Unless somehow there are some indications or some response from the minister on the Cornish report, then one could further recommend what direction it should go. But we cannot ignore the fact that it is placed before us quite often about the many and various roles that the Human Rights Commission plays, which is almost conflicting to what would be seen to be fair to deal with all the cases and try to be all things to the cause.
It has to be addressed and we have to look at it very, very seriously. As you said, in here it says most of the people, when they phone the Human Rights Commission, are looking for, as one party puts it, good advice and what direction to go and how they should deal with a situation in their workplace or wherever the human rights discrimination occurred. On the other hand, how are they to investigate complaints and how are they to mediate complaints and settle complaints?
They are playing these two roles, and it's something that will not go away. Again, as I said, if the minister can respond to the Cornish report, we know exactly where the government is going and wants to go with the Human Rights Commission -- and I'm not saying that in a partisan way, because each person has their own approach in how to address human rights complaints -- and then we're able to respond to this suggestion.
I do feel that it's one of the most important suggestions or recommendations -- I would say a suggestion, really, because they did not make any recommendations here -- but speaking somehow to that recommendation, because Dr Ubale's response did not solve the problem in any way. It may spread the work out and leave that cluster at head office but more or less regionalize it, and each commissioner would deal with it accordingly.
Again, the Human Rights Commission is asked to play all those roles. It may help the backlog at one place and be able to deal with it regionally, but again, it will not solve the problem where they are asked to be seen in many roles. It's something we must address with urgency.
Ms Carter: First of all, in reference to the first paragraph on page 40, I think the statements made by the chief commissioner were relevant here, that she has set in motion staff development and training within the commission. I think that this is the key here, that as long as training initiatives include making sure that employees of the commission have sensitivity training on racial and cultural bias, disability issues, labour union issues, things of that kind, this is at least one way in which those problems can be overcome. Maybe we should allow time for this process to occur, and then there will be a judgement to be made after a little while as to whether that has made the difference that is needed here.
As far as the two bullet points go, "the power to decide which cases should be referred to boards of inquiry should be made by the commission's lawyers," I think we can't support that. I think that's a decision that commissioners have to make.
The second one, that "regional human rights commissions be set up around the province to handle complaints filed under the code," I think again the answer to that is no.
There will in fact be one standing tribunal, I think, by the time the different tribunals have come together, and that is going to be the best vehicle for making sure that human rights are observed over Ontario, including, of course, the systemic approach.
Mr McLean: Are they recommending endorsing one of these proposals or not?
Ms Carter: I'm saying no to both of the bullet points on page 40.
Mr McLean: Okay. Next.
The Chair: What about the question above that about who is making the settlements and who is doing the negotiations? We haven't really addressed the fact that we have investigators, negotiators, mediators and final settlement people who are all the same.
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Mr Waters: One of the things that I found in my past life before being an MPP, and indeed in this life, is that this seems to be the norm within the province for most commissions, whether you're dealing with WCB, the Ontario Labour Relations Act, the Employment Standards Act; it doesn't matter which one. I would hope that with staff development and training our people are trained sufficiently to deal with that at the Human Rights Commission.
I think the biggest change at the Human Rights Commission when it comes to that, and why I would say that I don't see any problem with it, is the fact that finally the Human Rights Commission, over the last couple of years, is starting to look at precedent. When you come to the Ontario Labour Relations Act or grievance procedure, or whatever, you always look at precedent. Historically, the Human Rights Commission did not. Each case stood totally on its own and no one looked at how a similar case or an exact same case had been handled before and what the outcome was.
A couple of years ago, the commission started looking at and indeed enacted the ability to keep finished cases on file and that you would look at the precedent set in those cases. I think that is probably the most proactive thing they've done in these types of things, so that indeed people going in know some idea as to where this case is going or how to move the yardsticks. I can't see why we would change anything. I think that what we should do is, once again, keep an eye on it, but it is the norm of the way government agencies and commissions work around the province.
Mr Curling: Don't tempt me, Dan.
Mr Waters: I see you smiling all the time.
The Chair: I think everybody understands the problems in this area, obviously. We simply need to know, for the purposes of this report, what you want the report to say. Do you want to leave the comments that are here in it? Does the committee want to make a recommendation or do you want to leave a comment on the facts that are preceding?
Mr Curling: The comment I want to make, and I don't want to make any other statement because I want to move on, is that it must be addressed. No matter how you dress it up, Dan, the fact is that the Human Rights Commission plays many roles and people don't see it as the initiator, the investigator, the judge, the jury and everything.
The fact is that these are the comments that are made, and I don't think anything they've done has addressed that. If it could remain to say that this aspect of the Human Rights Commission must be addressed. I don't want to make any repetition. All I'm going to say is it must be addressed whether or not you take bullet point 1 or bullet point 2 or another one, but it has to be addressed.
It was raised over and over and over. We can't ignore it. People are saying, "No other groups do that."
Mr Waters: Yes, there is.
Mr Curling: No, no. If you have the Workers' Compensation, they represent workers, but here it represents all sides of the issue, and people are saying we have to look at this because we can't be all things to all people in one commission.
Mr Waters: But indeed the WCB does represent all sides of the issue. Go before them and you'll find that out.
The Chair: So you don't wish to make the comment on the paragraph on the top of page 40.
Mr Waters: I think that if I was to make a comment or a response, what I would suggest is that we encourage even more training and staff development to be sensitive to the problems that we see in race and cultural bias and improving the staff knowledge on disability issues. I really think that this is what we have to do. We have a staff. We've given them a number of things within this report to change the direction or to at least be more sensitive to people. Let's give it an opportunity to work. If you keep going the other way, you're going to end up with a judicial system. I'm opposed to a judicial system that isn't user-friendly.
The Chair: But, Dan, what we need is a sentence in here, if you're going to make a comment, or do you want to leave it to David to extract from your Hansard comments?
Mr Waters: Yes.
Ms Carter: Say that the chief commissioner has already instituted a training program, so perhaps we should see what the outcome of this is going to be.
The Chair: Mr Pond will extract from Hansard to incorporate your comments following --
Mr Pond: The first paragraph.
The Chair: -- the first paragraph on the top of page 40. I gather that the next two are recommendations you don't want to take any action on, that you don't support.
Mr Pond: Should I leave them in or just eliminate them?
The Chair: Would you like them left in the report and simply say that the committee does not support those two recommendations, so at least they're reported, or do you want them removed?
Mr Curling: Stay in the report.
Mr Waters: Okay.
The Chair: All right, they'll stay in the report, and just say the recommendations are not supported by the committee.
That is the completion. I think there are really only two areas that have to be rewritten. Is there agreement that this report then will go to be translated? Is there a motion? Mr Waters has a motion; great.
Mr Waters: I move that the three reports be adopted and sent for translation and printing, including responses to the last report of the committee and, upon receipt of the printed report, that it be tabled in the House pursuant to standing order 37(d) requesting a response from the government within 120 days.
The Chair: Excellent. All in favour of that motion? Opposed, if any? That motion is carried.
That is the end of the business of the whole committee this morning, and we will move into a subcommittee meeting. We'll see the whole committee next Wednesday morning. Thank you for your attendance this morning.
The committee adjourned at 1118.