Assemblée législative de l'Ontario

ONTARIO HUMAN RIGHTS COMMISSION

MARY EBERTS

COUNCIL ON HUMAN RIGHTS AND RACE RELATIONS

ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED

BHAUSAHEB UBALE

UNITED STEELWORKERS OF AMERICA

CONTENTS

Thursday 3 February 1994

Ontario Human Rights Commission

Mary Eberts

Council on Human Rights and Race Relations

Hasanat Syed, president

Advocacy Resource Centre for the Handicapped

David Baker, executive director

Bhausaheb Ubale

United Steelworkers of America

Brian Shell, Canadian general counsel

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)

Mammoliti, George (Yorkview ND)

*Marchese, Rosario (Fort York ND)

Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgienne ND)

*Witmer, Elizabeth (Waterloo North/-Nord PC)

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Abel, Donald (Wentworth North/-Nord ND) for Mr Mammoliti

Conway, Sean G. (Renfrew North/-Nord L) for Mr Bradley

Winninger, David (London South/-Sud ND) for Mr Waters

Clerk / Greffière: Mellor, Lynn

Staff / Personnel: Pond, David, research officer, Legislative Research Service

The committee met at 1009 in the Trent Room, Macdonald Block, Toronto.

ONTARIO HUMAN RIGHTS COMMISSION

The Chair (Mrs Margaret Marland): Good morning. I call this meeting of the standing committee on government agencies to order, and we will continue to review the Ontario Human Rights Commission.

Just before we do that, we need to resolve one administrative matter. Our last deputation yesterday afternoon was to be Brian Shell from the United Steelworkers, Canadian council. As you recall, Mr Shell arrived at about 20 to 4 yesterday; he had been scheduled for 3 o'clock. He would like to be rescheduled, and we have about three options. The deputations for this afternoon have all cancelled.

Mr Alvin Curling (Scarborough North): How many were there?

Clerk of the Committee (Ms Lynn Mellor): There was one, the CAW at 2 o'clock; they cancelled. A presentation from Dr Ubale was scheduled for 2:30; he's been moved to 11:30.

The Chair: We could see Mr Shell at noon today, or you could take your normal noon-time break, if you have commitments, and come back see him at 2 today, or you could see him on Monday.

Mr Allan K. McLean (Simcoe East): Let's deal with it at noon.

The Chair: Is there consensus? All right, we'll see him at noon today.

Mr Curling: Was there any reason the CAW cancelled?

Clerk of the Committee: No.

Mr Curling: No reason at all?

Clerk of the Committee: Nothing.

Mr Curling: I'm surprised the unions do not want to actively participate.

MARY EBERTS

The Chair: I welcome Ms Mary Eberts to the committee. I'm sorry we've kept you waiting a few minutes. There's half an hour for your presentation, to use however you wish. If you'd like to leave time for questions from the committee members, that's in order as well.

Ms Mary Eberts: I will certainly be able to do that. I don't have a written presentation, for which I apologize. I was a little over my limit with work and didn't have time to prepare written remarks, but I hope you'll have them on tape in any event.

You probably know me, at least by reputation, if not personally. However, let me detail for you the experience I've had with this commission and others so that you know a bit about the perspective from which I speak.

Before the Ontario Human Rights Commission, I have represented both complainants and respondents. Long ago, when I was a law professor, I also acted as a board of inquiry for the commission, and I have been involved in judicial review applications both on the side of the commission and also against the commission. My practice includes judicial review matters in human rights at the level of the Canadian Human Rights Commission, the federal government, and also in some other provinces, Alberta and the Yukon being two that I can think of. I also have had some experience with New Brunswick and Quebec.

I am an aficionado of human rights law, with a varied perspective to bring you today. I have practised and worked and taught in the human rights area for 20 years now, and one of the first messages I wish to make to you is that over that time, I have seen the scope of human rights legislation increase considerably. More and more grounds of complaint have been added, the legislation has been refined, and the burden on human rights commissions has increased proportionately.

Public expectations of human rights commissions have risen, both because of the general social climate and also because of the nature of the legislation, and the resources that have been provided to the Human Rights Commission in Ontario to answer the legitimately rising expectations of the Ontario public have not kept pace with the statutory mandate, which has been continuing to expand.

The Human Rights Commission has faced, particularly since the last major amendments in 1981, an increased scope of activity as more and more grounds are being added, and a decreased financial ability to deal with the complaints that have come in. This has placed the commission in a virtually impossible situation. The commission has struggled to keep up with the processing of complaints, which is its main business, and it has not been able to take the proactive steps which might well forestall the need to have extensive processing of complaints.

For example, there are very few large, class action type of prosecutions or actions being initiated by the commission. The few that have been, like the large investigation into the retail grocery business, have foundered because of the delay caused by lack of resources. If the commission had the resources to take on, as it can under its statute, inquiries in some key areas of the economy, then it might be that necessary structural change could be accomplished and it would no longer have to groan under an increasing case load from that area.

Similarly, the commission has been unable to regulate by means of policy statements and publicizing policy statements and doing the necessary groundwork and the bringing of industry on side for those policy statements that it could do if it had more resources.

I've often thought that the commission could well spend considerable time and make a considerable investment approaching industry groups, sector by sector, and trying to bring them more on side and get them actually to take more responsibility for enforcing the act, but in a situation where it's simply moving reactively to deal with a huge case load, I don't think it has been able to do as well as it needs to do in that area.

Because of the increasing scope for the commission brought about by the important amendments of 1981 and the resources that haven't kept pace with that, what I have noticed as a litigator over the years is that the Human Rights Commission is faring worse and worse in the court.

When the Human Rights Commission is taken to the Divisional Court on judicial review applications, whether it's by a complainant or by a respondent, now the Divisional Court is ready for the Human Rights Commission and the commission faces enormous hostility from the bench, because the judges have seen, over the past three or four years particularly, a number of cases in which long delays and absence of procedural fairness in investigations have been featured. I can tell you, from having been an observer of this scene for some time, that the nature of the procedural injustice and the nature of the delay that the Divisional Court is now seeing is really, in some cases, quite shocking.

As a result, the Divisional Court has a very negative attitude towards the Human Rights Commission. I contrast this with the situation even three or four years ago, when I was involved in some judicial review applications against the commission, and the Divisional Court was quite prepared to say: "Well, they may have been a little unfair, they may have missed a procedural step here and there, but look, the outcome was basically fair, and we're going to give them the benefit of the doubt."

What the court has been seeing, because of the initiative taken by unhappy customers of the commission in the past three to five years, has really turned its attitude around completely. I feel sorry now for the counsel who go to court on behalf of the Human Rights Commission because they often have a very uphill battle and they are not treated really that well by the court.

I'm always very saddened to see this. I think it's a measure of the stress the commission has been under, because even though the court is now very impatient with the Human Rights Commission, courts generally speaking are very high on the goals of human rights legislation. What you have is a set of courts that are more than predisposed to further the goals of human rights, human dignity and equality and which have expressed that sentiment and that predisposition in a whole series of landmark cases, being faced with the reality of the day-to-day administration of the commission and really throwing up their hands in despair.

1020

That case study of what has been happening to the commission in the courts is instructive. I wish the commission had the resources to turn it around and stop those cases going up to the courts, because I think in the long run we will see the negative attitude towards the commission's process start to creep into the attitude the court has about human rights in general. I'm concerned about that. I've seen enough of these cases over the past few years to assure you that my concern is not just based on an isolated example or two.

I'm sort of a professional complainer about the Human Rights Commission myself, I have to tell you that, but if pressed -- and I consider myself not pressed, but at least invited today to offer some conclusory observations on where I think the commission should go, what you might usefully say about it -- my bottom-line observation about the commission is that the people who are there, both as the order-in-council appointees and the paid staff, are by and large very dedicated and very knowledgeable. With very, very few isolated exceptions, I have a great deal of respect for the people I have been dealing with at the commission over the years in their various roles.

I think they have suffered from the high turnover and low morale that is endemic in an organization that does not have enough resources to do a huge and important job. Quite a lot of the difficulties that have come to my attention, like delay and unfair process in investigations, could be solved if there were the resources available just to pay more attention to the administrative side of things.

The Human Rights Commission is more needed now than ever, and I am sorry its recent difficulties have put it in the unfavourable light it has been seen in, at least in the past couple of years. As a person who practises in the area of human rights, employment equality, I have myself seen over the past year and a half or two years enormous backlash in the marketplace and in society against equality seekers.

I see daily in my practice stark examples of employers who are simply not obeying the law. They know what the law is, they are not surprised when you draw it to their attention, but they say: "Oh, that doesn't apply here. We don't have to obey that." You ask them why, and they'll give you mysterious excuses like "That employee wasn't productive" or "I invested all that training in that employee and she turned around and got pregnant so I don't have to worry about her any more." They have all kinds of reasons they give you that seem like good reasons to them for simply ignoring the law.

I was interested to see Madam Justice Wilson, in her report for the Canadian Bar Association on women in the legal profession, which encompassed not only the situation of women but also of visible minorities and other minority groups in the legal profession, saying quite bluntly that the legal profession itself is one area of the economy which simply does not obey the law with respect to its employees. If the feeling that one can ignore human rights and equality law has become well established in the legal profession itself, you can imagine what it's like in other sectors of the economy, so I would say that the worst thing that could happen right now is any diminution in the respect and the resources accorded the Human Rights Commission. This is the time for it to have more resources, to be shored up, to be strengthened to deal with both the rising expectations on the part of the equality-seeking groups and also the downturn in attitudes in the marketplace.

I believe, however, that those resources and that strengthening need to be attended to in the context of a recognition that there are now more pieces of equality legislation on the books than there were even in 1981 when the last major overhaul of the Human Rights Commission legislation was done; for example, the pay equity law and the unemployment equity provisions.

There is a certain amount of overlap between the business of the Pay Equity Commission, the employment equity administration and the Human Rights Commission, and I think it would be very useful if some coordination among the three could be effected so the resources dedicated to this important equality-seeking function by the province were not expended in duplication, and so the people who have to deal with the three agencies, whether they be equality-seeking customers or respondents to complaints or applications, will know more clearly where they stand and will have a fairly comprehensible set of obligations and administrative steps to go through.

Those are my observations and my recommendations, and I will stop here if you've questions or comments.

Mr Curling: Thank you for coming in. I know of your contribution in human rights issues. It's shocking to hear you say that human rights cases are faring worse, if I hear you correctly, in the courts. We have quite a challenge in demographics now as we change the diversity in our population, and it more or less demands we pay more attention to people's human rights and define what human rights are, really.

One of the things you talk about is resources, and I'll take a different twist on that. You're not alone when you say that some of the people handling human rights cases are not competent; I think I was hearing that. Some people came before us here and talked about lawyers taking human rights cases who are not really qualified to do those cases, and also that prosecutors aren't quite informed about human rights and not knowledgeable. So what happens is that for those people bringing forth the human rights cases, justice was not done for them. It gets down to who has the best lawyer and whether the prosecutor was relevant. It's rather saddening -- because that's what it is all about -- to say justice has not been done.

Is that your observation too? What would be your recommendation in how a selection of a lawyer should be made in human rights cases? Do you think there should be something special done in that regard?

Ms Eberts: You mean by the commission itself?

Mr Curling: In general; I'm going outside the commission. I presume the commission can make recommendations, because as you said, if the cases are settled within the commission, it doesn't need to go through the courts. But you still find people who want that access who say, regardless of Human Rights, "If I have to wait in line three or four years just to be told whether or not I have a case, and even if I have a case, after three years the evidence is so" --

Ms Eberts: That's right. In my experience, there are two different situations. When you first bring a complaint to the Human Rights Commission you're dealing with people at the officer level. The people at the officer level, the investigators or the officers, are usually not lawyers, and there is a great deal of variety in their ability to conduct an investigation in a timely manner that affords due process to the people being investigated. Some of them are excellent. Some of them are not experienced. Some of them don't stay with the commission long, so you find files that have been through the hands of three or four different officers, which always adds to the delay. When I say the commission needs more administrative resources, that is particularly one area where those resources should be applied, to the establishment of a uniformly well-qualified investigation officer cadre for the commission.

When you go on to the board of inquiry stage, you find that the staff lawyers at the commission -- or sometimes the lawyers from the Ministry of the Attorney General will take the case on behalf of the commission, and sometimes they'll retain an outside counsel, but they do that much less now than they used to. Those lawyers are, generally speaking, certainly up to the task. They tend to be young. Many of them are young, and they've come into the area because of a special interest or a vocation in the human rights area.

1030

Like all young lawyers, I think they would benefit from mentoring by senior lawyers involved at the commission or available to them through the Ministry of the Attorney General and through the opportunity to take enhanced professional training in the litigation area. That is not an observation I make particularly about the counsel for the Human Rights Commission. It's a general observation, that in the first five to six years of a lawyer's training it's important that they get pretty intensive not only experience but also skills training.

Mr Curling: Do you think the government should implement the recommendations from the Cornish report?

Ms Eberts: Generally speaking, I thought those recommendations were very good. A lot of effort went into them.

Mr Curling: Do you feel the commission should be more independent of the government?

Ms Eberts: Oh, yes, I think that would be --

Mr Curling: Reporting to a legislative standing committee?

Ms Eberts: Often the commission deals with complaints against branches of government and government agencies or sectors of the economy where there is special attention being paid by the government, so enhanced independence would be a very good thing.

Mr McLean: Have you heard of the group called the Centre for Equality Rights in Accommodation, CERA?

Ms Eberts: Yes, I have.

Mr McLean: Are you familiar with the work they do?

Ms Eberts: I'm not closely familiar with it. Accommodation is not an area I've worked in.

Mr McLean: They address systemic discrimination in housing. They indicate they are the largest user group of the commission and have approximately 200 unresolved complaints at various points in the system at any one time. I'm wondering if they are part of the overall concern that's been raised with regard to some of the backlog. You probably wouldn't be familiar with that.

Ms Eberts: I know them only by hearing them discussed by other lawyers. I don't know their work closely.

Mr McLean: There are 80-some recommendations in the Cornish report. When Mary Cornish was here the other day, I raised the issue with regard to recommendation 85. It's just one paragraph I want to read to you, and I'd like to have your comments.

"The commission should adopt a more open, cooperative relationship with community groups and individuals with human rights expertise and allow them to prepare and develop their own claims, and participate in direction of the investigation, settlement and appointment of the board of inquiry."

I asked Mrs Cornish whether she was aware of the concerns that had been raised. What are your comments with regard to the appointment of the board of inquiry from a community group?

Ms Eberts: As to the overall recommendation, I have experience working in a situation that's somewhat similar to that when we did cases through LEAF when I was chairing the national legal committee there. We would attempt to involve community groups that had special knowledge or expertise in an area and found they would be very helpful. They often could provide not only expertise but support to the complainant. There would be useful mediators. It was very valuable to prepare the ground for a settlement working with these people, as well as prepare the community for the ultimate outcome of a case. It does take some particular skills to operate in a situation like that and to avoid being captured by the groups with whom you work, but I believe those skills can be developed.

As far as appointment of the board of inquiry is concerned, I did not actually read that recommendation as stipulating that the group itself should appoint the board of inquiry. I read it as saying they might have input into the appointment of a board of inquiry, and that actually is somewhat reflective of the trend towards greater public input into appointments. Even the Canadian Bar Association recommends that there be greater public input into the appointment of judges. That recommendation actually could be administered in a way that could balance your legitimate concerns for fairness and impartiality with the benefits that type of collaboration could bring you.

Mr McLean: To be fair to Ms Cornish, she didn't agree that the board of inquiry should be part of that recommendation after I had questioned her about it.

You mentioned the criteria to help officers define the case. That's one of your recommendations, that there be more defining of whatever the case may be, that an intake officer could deal with it more quickly.

Ms Eberts: I would like to see the commission generally make more use of policy instruments, articulate more openly what it thinks is a case of this sort or a case of that sort, what the elements of the case are and so on, and make those instruments available to officers. Having made them available to officers, there might be some greater dispatch in dealing with the case. My concern also would be that those instruments be used to ensure that a case is dealt with fairly right from the beginning, and I think that would help there too.

Mr McLean: There are some recommendations in the report that suggest how the government should act, and it goes from September 1, 1992, to September 30, 1993. Are you aware of anything in this report that has been acted on by the government? I'm not, and I'm wondering if you are.

Ms Eberts: No, I'm not.

Ms Jenny Carter (Peterborough): Perhaps I could pick up on the last point. We had an address from Rosemary Brown at the beginning of these hearings, and she says they are making improvements from the inside out. She listed eight different initiatives they were undertaking which she felt were in compliance with suggestions of the Cornish report. I could list those if you'd be interested.

On the wider front, you said you agree with the Cornish recommendations. One of the problems that has been suggested in relation to those is that they would cost more money. You are suggesting that what the commission needs in any case is more money, more resources. It has also been suggested to me that if some of those Cornish report suggestions were carried through, it would not in the long run cost more, but less. It seems to me that we need to get our ideas straight about what is going to cost the most and what is the best way to spend the money. Maybe you could make some comments on that.

Ms Eberts: I will offer you a quote from a wonderful accountant who was involved in the establishment of LEAF and for many years ran the financial side of LEAF as its chief financial officer. Her observation to us, whenever she was getting us cranked up to go and do fund-raising, was, "Remember, equality doesn't come cheap." We do have to remember that. Certainly as I did those fund-raising breakfasts and lunches and things, that was one of the things that motivated me.

It is acceptable to apply principles of sound financial administration to the administration of a human rights agency and cost out proposals and cost out alternatives and this type of thing. There's absolutely nothing wrong with that. It should be done.

1040

Ms Carter: Obviously, whatever we do, we want to do it as economically as possible. But does the structure of the commission lead to unnecessary work, unnecessary procedural stages which in themselves add to the expense?

Ms Eberts: I'm going to give you an example of an expenditure which looks like an extra expenditure in the short run but may in the long run prove to be more cost-effective: the development of specific and articulated policies about what is acceptable in certain areas and what is not acceptable in certain areas, and then going to employer groups and publicizing those. In the short run, that takes extra money because you need the staff time and you need the PR to go to employers. But if you could get even one sector of the economy to make a commitment to following through on those, you would have saved money in the long run, because then the sector of the economy that was involved would be more or less self-applying the Human Rights Code. That's certainly one.

Another one is that any measures taken to improve the processing of complaints within the commission may be cost-intensive in the short run, but they will save the commission a lot of those legal bills it's now paying when it gets brought to judicial review. I think we have to look at them in those ways.

Ms Carter: The things Ms Brown listed were: implementing a quality and quantity assurance system; establishing a coherent and meaningful customer service program; streamlining and enhancing enforcement procedures; using technology to be more efficient and productive; creating a lean and rational organizational structure; defining and preserving clear standards of accountability; supporting all staff through relevant and respectful training and development, and apparently they're working very hard on that; and acting decisively to ensure organizational health, including the use of sound anti-racism principles. Do you think that by pushing all these initiatives they could make a real difference?

Ms Eberts: Although these are pretty generic descriptions, they sound good. Certainly, each one taken by itself would be a useful development. If they manage to implement all of them, I think they will be on the way to a healthier commission.

The Chair: Thank you, Ms Eberts, for coming before the committee this morning. We appreciate your contribution very much.

Ms Eberts: Thank you for inviting me.

COUNCIL ON HUMAN RIGHTS AND RACE RELATIONS

The Chair: Our next deputation this morning is Mr Hasanat Syed, who is president of the Council on Human Rights and Race Relations. Welcome, Mr Syed.

Mr Hasanat Syed: I have a written brief which I will read. This is of a somewhat general nature, not from a professional angle.

I thank the Chair and members of the standing committee for giving me this opportunity to appear on behalf of the Council on Human Rights and Race Relations. Human rights issues and concerns are non-partisan in nature, and I would speak in the same spirit. I hope that the members of the committee, who are drawn from the three parties in the Ontario Legislature, would approach the subject in the same spirit.

The Human Rights Commission in Ontario is a very important and sensitive body and it is in many cases an agency of last resort. This is a body which is also the agency of hope and justice, and to Ontarians who are neither English nor French it is the body to whom they could go for addressing their concerns.

This segment of the population is not small. According to a study done by Dr T. John Samuel, commissioned by the race relations advisory committee on advertising, of which I was the past co-chair, the report says that by the end of this decade, when we would be entering the second millennium, the projections of the visible minorities are worth noting.

There would be 2.7 million Ontarians of visible minorities, and they would be in excess of 30%. Of these, the largest segment would be Chinese, 1.29 million; south Asians, the second-largest group in Ontario, over 1 million; followed by blacks. Others who would be in excess of half a million each would be west Asians/Arabs, Filipinos and southeast Asians and Latin Americans. It is estimated that Ontarians who are neither English nor French would be 49% of the total population of Ontario by the end of this decade.

I quote these figures at length to highlight the growing importance of racial minorities in Ontario, and the Human Rights Commission is a body which stands up as the custodian of the rights of the less fortunate.

I am aware that all three parties represented on this standing committee hold the cause of racial minorities and visible minorities dear to their hearts to varying degrees. All of them talk and support multiculturalism, but when this is translated in terms of dollars the story is somewhat different.

The quarterly update of Ontario Finances as of September 30, 1993, speaks of about $50 billion in operating expenses. Of this, $77 million is budgeted for the Ministry of Citizenship, on whose rolls the Human Rights Commission is borne. The estimates for the briefing book for the Ministry of Citizenship for the year 1993-94 show the estimates at $13 million against the estimates of 1992-93 of $15.5 million.

In order to arrive at a percentage, we have an expenditure of fifty thousand million dollars, and of this, $77 million is spent on the Ministry of Citizenship. That means if Ontario spends $1,000, only 15 cents are spent on the Ministry of Citizenship, and of these 15 cents only two and a half go for the Human Rights Commission.

I quote these figures at length to show how much importance is attached to a body and an agency which exists for the less fortunate and how little goes to it.

The members of the standing committee have to ponder about it and compare the gap. The political talk, when compared to what actually is on the table, makes dismal reading.

Here I must pay a tribute to Minister Elaine Ziemba for the outstanding leadership she has provided and the way she is handling the affairs of the ministry with 15 cents out of $1,000. The new chief commissioner of the Human Rights Commission, Rosemary Brown, who took over only six months ago, is probably doing her best to clean the mess.

The figures quoted in the briefing book of the ministry appal me. The inquiries to be received by the commission in 1993-94 are projected at 146,897 and referrals at 32,850. The backlog of complaints is estimated at 1,877 and new cases estimated to be 2,433. There is a growing overload, and the common complaint against the commission is delay, a delay which is frustrating and disappointing.

There are eight part-time commissioners and the load of cases is growing day by day. How is the commission expected to deliver relief and justice to the aggrieved persons to whom this body represents a tower of hope, but that tower is very much messed up?

It is not surprising that the performance of the staff appointed on the commission has been open to criticism. Not long ago, during the days of the previous government, a former chief commissioner faced media heat for making appointments which went against the very principles for which the Human Rights Commission stands. It is very interesting to see the Toronto Star clubbing the then chief commissioner for making irrational appointments at a time he imposed heavy fines on a firm which refused to hire visible minorities.

This briefing book speaks of the existence of a communication and education unit, saying that the primary goal of this unit is to communicate to the people of Ontario, through media and direct contact, the policies and the practices of the commission as well as the rights and responsibilities contained within the code.

1050

This unit, when its director was contacted to provide material for the preparation of this brief, failed to provide the material, for obvious reasons. For six weeks I've been trying to see the new chief commissioner, and the person in charge is holding me at bay. I can see the minister, but to see the chief commissioner you have to wait. It is not a reflection on the commissioner but a sad commentary on the staff, a staff that is dead against the social contract. This unit needs to be overhauled and told to serve the needs of the public for which it is created.

Then there is a legal services unit attached to the commission, and it is supposed to tender legal services to the officials of the commission. That is understandable. There is a compelling need to enlarge the area of the operation of this unit. The legal expertise of this should be made available to the people coming to file complaints. If this unit is made a dedicated and well-informed agency of the commission, most of the complaints can be properly guided and assisted, thereby reducing the time of the commission spent on improperly filed complaints.

One of the most important things this standing committee can do is to advise the government that the Human Rights Commission should be equipped with professional facilities to help guide the people who wish to file complaints. It has often come to the notice of the council that the people wishing to file complaints are not sympathetically and properly handled, guided and counselled.

Another recommendation the council would make is to increase the number of commissioners instead of the staff. It is always the tendency of a manager and a director to keep asking for more staff and more help, whereas the real problem is the absence of good and compassionate commissioners. Thanks to Bell Canada, which has provided answering facilities, in nine out of 10 cases when you wish to reach a member of the staff of the government of Ontario, you meet the voice mail or the answering machine.

Mr Sean G. Conway (Renfrew North): Give the man a medal. You are absolutely right.

Mr Syed: This facility should be immediately withdrawn. It tends to make the staff lazy and keep them away from their desks, and a person filing the complaint faces even greater frustration.

The council wishes to lay a great deal of emphasis on the fact that top priority be given to streamlining the Human Rights Commission. Rosemary Brown is the right person to do that, but she needs more funds for the process of easing the case load, not for increasing the staff but to make more facilities available. There is a need for increasing the strength of commissioners, an increase in making facilities available to the people who wish to file complaints, and an urgent need to evolve a process whereby no case in any circumstance should be stretched beyond one year. The postponement of cases for one reason or another not only puts financial strain on the commission but also causes immense disappointment and frustration among the people who've come for redress, who face another bottleneck or another bureaucracy interested more in disposing of the file rather than redressing the agony of a person whose rights have been violated.

Before I close, I once again commend the work of the minister, who with very limited resources has given fine leadership, and also of the new chief commissioner, Rosemary Brown, who we hope will live up to her reputation.

There are a few charts attached to this brief, taken from the study done by Dr Samuel, to support the figures I quoted. I'm open to questions if there are any.

Mr McLean: It was nice to hear a good commonsense approach taken to what you feel are the problems at the Human Rights Commission. You lay them out in fairly good detail, and I appreciate it. Are you aware of the recommendations the Cornish report has brought forward?

Mr Syed: I have heard about them, but I haven't gone through them.

Mr McLean: I wish you would. I wish you would take a look at them and pick out what you think should be the priorities we should be dealing with, as a committee recommending some priorities. Your brief certainly shows that you're well aware of the problems in the commission. Many people will agree with you. I just want to commend you for a great presentation. You've really said it all.

Mr Syed: Thank you.

Mrs Elizabeth Witmer (Waterloo North): You mentioned that you definitely believe they need to get away from the telephone answering style that's presently in place, and I heard Mr Conway agree with you.

Mr Conway: Isn't that the scourge of the entire government? Does anyone not agree with me?

Mrs Witmer: I know myself, when I call in to reach an individual, it takes almost five minutes to finally reach them.

Mr Syed: You're a lucky person, because I'm not an MPP like you. I spend sometimes hours. You would be interested in this. I called a person and that person said, "If you are in urgent need, please call that person." I dialled that person. There was another voice mail: "I'm so-and-so. If there is a problem, call that person." Now, what are you going to do in that case?

Mrs Witmer: It is a very serious problem. It's an issue the government needs to deal with very quickly, because some of the work we do in our constituency offices is because of the frustration that people can't reach the individual, so they ask us to make the contact. Particularly in this area, we need to make sure there is a real, live person. There need to be steps taken to improve customer relations, and that's something that could happen in all the areas.

Mr Syed: I agree with you.

Mrs Witmer: You're talking about increasing the staffing.

Mr Syed: No, not staff; I'm against this. It's the funding for the commission so that the commission is equipped with more facilities. Currently, if a person goes to court, he can go for legal aid. If the person goes to the commission, there is nothing like that. The person simply has to rely on his or her own resources. The people who go to the commission are largely from my own segment of the population, because they have some grievance. They don't have the resources. If the case goes to the court, he or she can get legal aid, but in this case they can't get anything at all like that. That's the reason I urge that the funding be increased so that the commission may be in a position to help where there is a problem in filing the thing and the people who come to the commission may be assisted professionally.

Mrs Witmer: In essence, that is increasing staffing. Whether it's the commission staffing or somebody else, we're going to be using more people in the process.

Mr Syed: What I was saying is that if you make provision for funding the people who come to the commission to file the complaint so that they can engage a lawyer, which currently they can't, I don't think there is a big necessity of a large -- there may be a few, I agree with you, but not necessarily a large number of people to be hired for that specific purpose.

Mrs Witmer: Have you taken a look at the figures Rosemary Brown presented? She feels she's on the right track, and I think she's done an excellent job in a very short time.

Mr Syed: She comes with a reputation. She's certainly a person of high profile, and probably she can do a lot. Personally, I haven't met her. My information is what I have read about her.

Mrs Witmer: I was quite impressed with her presentation the other day, and certainly she instilled confidence that she was prepared and able to deal with the problems, the backlogs.

1100

Mr Syed: It's a huge thing. I believe the Human Rights Commission is, in a way, a big model for the people who are here coming from outside, the visible minorities, that there is an agency so we can go there and file a complaint. That gives them a little feeling that there is something. If that particular agency is not functioning or for some other reason not giving the results, there is bound to be a great deal of frustration.

Ms Margaret H. Harrington (Niagara Falls): Thank you for being with us this morning. Sorry I was late. I notice on page 1 you've said, "This is a body which is also the agency of hope and justice." I see it that way as well. I think you have recognized that the commission now has embarked on a process of making some very necessary changes and hopefully vital changes in the organization that will give it new life.

With regard to hope and justice for the future, do you believe there are underlying causes of injustice and discrimination in this province that the commission can somehow address or help focus on?

Mr Syed: There are, obviously, because the complainants mainly are from the less fortunate, from the visible minorities. They go to that commission with the hope that they will get some redress. You indicate that the commission is currently engaged in new initiatives and things like that. Apart from that, I believe there are legitimate grounds for the people feeling frustrated with some of the things they come across in their daily lives. As one gentleman pointed out, there is quite a large number of cases about accommodation and about other things. There is a problem.

Ms Harrington: My concern is that we're dealing with individual cases. Obviously, that's the job of the commission, but if we could get more at the root causes and stop people from feeling free to discriminate, even subtly, if we can get that educational process going and eliminate some of the underlying framework that enables people to think they can discriminate, then there hopefully will be fewer cases.

Mr Syed: I agree with you. You are absolutely right, but who's going to undertake that education?

Ms Harrington: That's what I'm wondering, whether you think it's the role of the commission.

Mr Syed: There is a lot of political talk, but the problem is there is nothing concrete being done. You have identified a very good area, but the problem is, who's going to undertake that education?

My own council is organizing a conference on anti-racism on March 21. That's the whole idea, because I want to bring the people from both segments to one platform so we can talk about the problems of racism in our society.

Ms Harrington: Maybe everyone has to deal with this.

Mr Syed: Everybody, not merely the visible minorities. I believe also that tolerance should be shown not only by the people who are here but even by the people from the visible minorities, because we probably are asking too much sometimes, which is not a correct thing. It's a two-way street. People from the visible minorities, people from the other groups, have to show each other a sense of accommodation, and once there is an appreciation of each other's position, probably there may not be more instances of racism or discrimination.

Ms Harrington: Hopefully we'll have less need for the commission. That would be wonderful.

Ms Carter: You said you thought we should spend more money on the Human Rights Commission. I'm just wondering who it is that we need more of. You suggested we need more commissioners.

Mr Syed: What I was saying is that the money is needed for the people who are coming to file a complaint. When people like us go to the court and they are not capable of mobilizing resources, they can go to legal aid; they get the money. But they cannot get legal aid if they are going to appear before the commission, so the money has to be provided for such people.

I'm not asking to increase the staff. The most you can increase probably is the part-time commissioners. I'm saying at the moment that the commission should be in a position to provide help if necessary -- professional, financial, whatever -- to the person coming to the commission to file a complaint. That's what is not there. That sometimes deters the complainant from going, how he's going to hire a lawyer. Lawyers are an expensive commodity; you have to pay a lot of fees to them. But if a system of legal aid is brought in, that probably should be administered by the Human Rights Commission.

Mr Conway: I really appreciate your submission. There is a good sense and wisdom about it that I find quite attractive. I'm delighted to hear a citizen come forward and complain, as you have, rather directly about the scourge of voice mail. We won't rethrash that straw, but I really appreciate that.

I'm struck by the fact that someone who is president of the Canada Council on Human Rights and Race Relations has still not had a meeting with the commissioner, who I think we all are very impressed with.

Mr Syed: No, I haven't met her. I believe she is the right person. That's why I mentioned her. She is an outstanding person.

Mr Conway: So what is the palace guard saying about why you, as the president of --

Mr Syed: You know what happened? I sent a letter to the chief commissioner, and then the staffers came into play.

Mr Conway: The palace guard.

Mr Syed: "Hey, why do you want to see her?" They started questioning me. I happen to also be the editor and publisher of a paper, so that was the whole thing. I said I would like to interview her. "Oh, no, no, no. Why do you want to interview her?" I said, "She's doing a fine job." "No, no. No, she's a very busy person. You just send your questions." Then I sent this set of questions to the lady, and after two or three weeks, "You can see her, not this month but in March."

Mr Conway: So you have an appointment.

Mr Syed: I got an appointment because they heard I was going to prepare this presentation, so they thought it was better that they provide me with an appointment. My concern was to get some meat or something to put in my presentation, which unfortunately is entirely my own. That's the reason I got in touch with the director of that publication. This morning I got a package, because they somehow came to know I was doing something. That package came this morning. The information about an interview came probably a couple of days ago. That's how these things move.

Mr Conway: Well, the great spirit moves in remarkable ways, I've found in my life in politics.

Mr Syed: You are right. They do sometimes.

Mr Conway: In terms of this whole business about how we improve the efficiency of the commission, we've had representatives of what I will call the industry before us, many of whom are not without an interest in this, an interest beyond the policy questions, to be perfectly blunt; good people, to be sure, but industry representatives in one way or another. They've argued, simply, "We've got to have more money, we've got to have more staff, we've got to have more opportunities to participate."

You mentioned legal aid. Boy, I scarcely recognize the legal aid creation we've got now compared to what it started out as being.

Mr Syed: I think that is now being somewhat abused. That is the problem.

Mr Conway: Yes, it is. There is no doubt that it is being abused.

Mr Syed: I agree with you. The thing is that the people are taking advantage of a situation. But here the people are going because of some specific discrimination. Probably they are entitled to have some sort of legal assistance or professional assistance, or if the lawyers are on the staff of the commission, they can assist the people who are coming to the commission with a complaint.

1110

Mr Conway: There's no question that there are very serious difficulties we have to address. My concern, on the basis of 18_ years around this place, is that we've launched a number of processes that had the best of intentions to resolve conflicts of one kind or another. They were intended to be informal and user-friendly and -- I can't think of a case where it's been proven otherwise -- they have just been taken over by my good friends in the legal profession who are very public-spirited individuals and who are driven by their clients on all sides.

That which used to take three days, took three weeks, took three months, took three years. That which used to take in constant dollars 10,000 bucks, suddenly took 150,000 bucks, and on it went. How do we avoid that kind of growth on the one hand, and on the other deal with the very serious problems that everybody's identified in this very important --

Mr Syed: You are right. There is again a need for education. Unless we are properly educated and properly attuned that these provisions exist for genuine things -- and you are right, there is a wide variety of abuse existing. Once something is there, people start abusing it, maybe a little bit in the commission as well. But there is now an absence of that particular provision in the commission.

If the commission has, say, a number of lawyers on staff, who can provide professional help to the people coming to the commission for filing complaints, in a way you are providing some sort of assistance.

Mr Curling: I just want to say that 65 officers are doing 10 million people, and more cases are coming forth every day.

Mr Syed: That's what I'm saying.

Mr Curling: So we need more officers.

The Chair: Mr Syed, thank you for being here this morning. We appreciate your time and your contribution.

ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED

The Chair: Our next deputation is Mr David Baker, who is the executive director of the Advocacy Resource Centre for the Handicapped. Welcome, Mr Baker. You're very busy this week, between the committees.

Mr David Baker: Yes, I was at another committee last week.

By way of background, the disabled community comprises the largest single group of complainants to the Human Rights Commission. They were added to the groups of protected classes in 1981, so they're a relatively recent addition. At the time when disability was added, and again at the time when the protection for disabled people was significantly improved in 1988, there was no major increase in resources to the commission. That's perhaps a noteworthy preliminary point.

As noted in the brief, ARCH maintains approximately 25 cases open with the commission at any given time. We have not been able to take on very many cases because cases don't get closed, and when a case is open, that places demands on our time and resources. We're simply not able to assist as many people as we would like to. None the less, we have a significant presence with the commission at any given time.

ARCH is composed of 48 disability organizations. They're listed both in the brochure you have and also inside ARCHtype, which I've given to you.

In late 1991 and early 1992, ARCH travelled, together with several other disability organizations, to eight centres across the province to hear what people had to say about the Human Rights Commission. We also served as legal counsel to the Coalition on Human Rights and Disability Issues, which represented a very large percentage of the disability organizations in this province. The recommendations from that coalition to the Cornish task force are appended to my brief for your information. I won't go through all of those. I know your purpose is not to duplicate the work of the Cornish task force, but obviously I have no quarrel or concern with any of those recommendations, and they're available to you.

The big issue in relation to the commission remains the question of the backlog, and certainly I agree with all the speakers who must have been presenting to you that the backlog has to be wrestled to the ground. There was a backlog task force which worked on a number of cases. Unfortunately, that only shifted the problem over.

I don't know if other speakers have mentioned this to you, but there is a significant problem in that the commission appointed a number of boards of inquiry, but with only seven commission counsel it is backlogged, in setting dates, well into 1995 for hearings, so there is yet another bottleneck for the commission. I should say too that I don't have instant solutions to all of these things; I would just like you to be aware of them.

I understand from a media clipping that the chief commissioner, whom I have met and whom I respect greatly, came before you and advised you that a miracle has been performed in that the commission backlog is being reduced, and I'd like you to be aware of some of the contributing factors. In my submission, it's less than a miracle, what has been performed, although obviously that backlog has to be dealt with.

First of all, we have noticed a very high increase in the number of people who are told they cannot file a complaint, which is contrary to the law, and who are aggressively discouraged from filing complaints even though they have perfectly valid reasons for doing so. We have brought all of these points, I should say, to the attention of the commission. There's nothing I'm saying here that hasn't been brought to the attention of the commission. We've had to intervene in a number of these cases, which we would not otherwise have done, to assist in the drafting of the complaint.

One way they're managing their backlog is simply to tell people to go away in cases where we feel, at least, and I think we have some expertise in the area, they have perfectly valid reasons to feel they should be able to file a human rights complaint. We attribute that in part to the lack of training of commission staff in disability-related issues -- they just misperceive the issue -- but also it appears to be a clear mechanism for case load management.

Second, we have six cases in our office right now of people with disabilities who were fired from their jobs because of their disabilities who were told they were not sufficiently severely disabled to be considered disabled under the terms of the Human Rights Code. These range from mental health problems to carpal tunnel syndrome; a range of physical disabilities. The Human Rights Code, as I've mentioned in the brief, speaks of "any degree of physical disability, infirmity, malformation or disfigurement." It also talks about people who have histories of disabilities -- that is, who are no longer disabled -- and it also talks about people who are mistakenly perceived as being disabled. The wording is very broad.

As I say, we have six cases in our office right now; we've had a number. We've had to threaten legal action to get the commission to accept its legal responsibility to take complaints from these people, and these are people who have lost their jobs specifically because of their disabilities. It's sufficiently important in the mind of the employer, at least, to dismiss the individual, and we're deeply concerned about this.

As is mentioned, there was a decision called Lily Cups in which one board of inquiry, one law professor, decided to read this definition quite narrowly. The commission consulted within the disabled community about whether it should appeal. To my knowledge, all the disability groups, those with which I'm familiar anyway, advised appealing, but the commission elected not to. The reason is that it relieves a burden for the commission; it cuts down on the number of complaints.

The intake officers who are interpreting this decision have gone much further than the wording of the decision could be stretched to contemplate. Again, if you want to keep your numbers down, one way is to tell a person that they're not sufficiently disabled and to move on.

1120

The third mechanism we've seen -- and if you've heard from CERA, you'll have heard some stories on this as well -- is that even when people are represented by counsel there is tremendous pressure put directly on individuals to accept extremely low settlements. Often this happens where you haven't heard a single thing on your file for two years, and then an officer approaches you and says, "Will you take $1,000?" It's known as a nuisance settlement, and I think it brings the whole process of human rights into discredit, because employers are saying, "It's cheaper to pay $1,000 than to provide representation." Their position on it is understandable, but they come away saying this process is a bad process. And from the standpoint of the complainant, they have not had their allegation of discrimination dealt with, so they don't feel their concern has been properly addressed. We're particularly upset in circumstances where officers seek people out directly when they know they're represented by counsel, and these things should go through counsel. They're perfectly aware of this: When it's brought to their attention, they're quickly apologetic and so on.

The fourth concern is the inadequate training of investigating officers in disability issues. I should acknowledge, first of all, that these issues can be complex. There is a very broad range of disabilities and there are some fairly complex issues that can arise, both in relation to the disability and in relation to the accommodation which is necessary to permit a disabled person to fully participate in our society.

However, I mention one case; a client of mine, as it happens. The case was before the commission for nine years. It never got to the commission; the investigation was never completed. The investigating officer got it into his head that my client had misled her doctor in relation to the severity of her disability. He drew these conclusions based on his own personal reading of the clinical record, with which he was provided. When he asked me about this, I referred him to the doctor. I said, "If the doctor is concerned about having been misled, then I guess we should all be concerned." I asked him to speak to the doctor.

The next thing is that he writes his report to the commission -- which is the process leading up to the commission's decision -- recommending that the complaint be dismissed because she'd misled her doctor about this information. It was only when I insisted on getting more information from the doctor that I learned that the doctor had in fact provided the investigating officer with a very clear letter saying that his theory of this thing was totally wrong and that my client had not misled the doctor in any way, shape or form.

None the less, my client was so upset by this -- she was literally called a liar in the investigating officer's report -- that she withdrew a complaint that had been there for nine years. She'd lost her job. She'd gone back to college after a very traumatizing experience and had been working in a new job successfully for about four years, waiting for all this to happen. She was just that disgusted with the way her complaint was handled. And it's not atypical: The investigating officers do not know about disability issues. There's a fairly high turnover, and that may contribute to the problem.

There are cases and then there are cases. My fifth point here is that there are cases which have broader implications and are more difficult for a number of reasons to investigate, and there are some that are quite straightforward. It doesn't appear to us that in giving credit to investigating officers the complexity of the case is taken into account. if you have to close two files a month, let's say, investigating officers will be able to assess what's a difficult case and what's an easy case, and you'll want an easy case for sure and you won't want to get a difficult case, because you're not given any particular award for dealing with those difficult cases.

It happens that ARCH is there to take some of these more difficult cases. That's what we've been asked by our member groups to do. As a result, while I don't challenge Ms Brown's statement that as of March there are only 250 files left that are three years or older, a very high percentage of our 25 cases go back more than three years. I mentioned one that went back nine years, and there are others that go back a very long time. These have not yet been resolved.

I'm concerned that the commission structure, which is designed to clear the backlog and to get those numbers lowered for your attention, is not taking into account the complexity of some cases and is not rewarding the human rights officers who are willing to move those cases.

The final point is that the commission -- perhaps wisely, but I think you should be aware of it -- has dropped virtually all its other functions in the interests of dealing with the backlog. They're not doing public education. They're invited to speak and they decline. They are not involved in the policy advice process or the public education or the preventive process of human rights. They are focused almost exclusively on dealing with individual complaints, which is a totally reactive process. While I can understand it, I think you should be aware of it.

In summary, from the standpoint of the disabled community, we're pleased to hear that the backlog is being dealt with, but we don't believe it's a miracle. There's been some tremendous hardship for people out there in the process of dealing with it, which, if I were not here, I suppose you might not be aware of.

Turning to where we go from here, I know that the Cornish task force report is before you. I have not chosen to deal with that in specific terms. I will simply say I don't have any great quarrel with the conclusions of the Cornish task force. My personal opinion is that it would not require significant additional resources beyond a short transition period, but that's not based on anything other than my personal reading of it. I haven't the expertise or the qualifications to say more than that.

I do feel it's important to be aware of the cost of backlogs. Again, I mention one particular case. A very large number of complaints that go to boards of inquiry now are met initially with an application to have the complaint quashed on the basis of delay. The respondent says, "This delay, in and of itself, has been unfair, has worked an unfairness to me." I'm involved in a case. We went through four days of hearings on just this issue of delay -- four days of hearings. If some of you are aware and have heard comments about lawyers and so on, the cost of that is tremendous. There were certainly more than 1,000 pages of written submissions, evidence and case law put in through all of this. We waited six months for a decision. We've now heard that the case will be going forward. We're waiting for the decision of the board on just this preliminary issue of delay, which we are told will be more than 100 pages long.

Unless the backlog issue is dealt with, every case is going to run into this delay application, which, at a minimum, is going to cost a huge amount of money just to hear it argued, and then the result, if the delay application is upheld, is that the complainant completely loses their right. That's the net result. Unless we are able to do something with it, either through providing adequate resources or making some wise decisions about what changes need to be made, the net result will be that people do not have human rights in this province because boards of inquiry and the courts are dismissing these cases because they've been around too long and they say it's unfair to the respondent. If we're to have human rights for people, it's important that we deal with the backlog.

I have two very short points to make to you about how I feel we can deal with the backlog without essentially removing the human rights which the code says disabled people have in this province right now.

The first one is that we need to have procedures that get you to a hearing or that there's some assurance of getting you to a hearing. Right now there is absolutely no reason in the world why a respondent would not delay a case as long as they possibly could, because he or she knows there is this huge bottleneck at the commission and they know there's this huge bottleneck with commission counsel, so only a small number of cases are going to be heard out of the total number of complaints that go forward.

What is going through a lawyer's mind is this: "There's no reason on earth why we should discuss settlement of a case," which is the way the vast majority of cases are resolved in normal litigation, "there's no reason to even think about settlement, unless a board of inquiry has been appointed." You simply draw it out for as long as you can, make sure it's as stale as it possibly can be, and then you're into the lottery of which cases go forward, and only at the last minute will you settle it. That takes a tremendous amount of public resource to get through all those stages to the courtroom door before there's any reason at all for a respondent's lawyer to think about settlement. We really need to find a way, I feel, to make it clear that valid cases are going to go forward and should be settled at the earliest possible date to minimize the expense for everybody concerned. Right now our system doesn't do that.

The other important consideration is that the obligation on employers and service providers and so on to disabled people is far from clear at the present time. With this lack of clarity, it's going to take years and years and years and lots of expensive lawyer time to get it up to the Supreme Court of Canada and clarify some of these things, and even then you can be disappointed and wait another period of time. Meanwhile, there are high expectations on the part of disabled people and low expectations about these rights in the minds of potential respondents, and you have this enormous potential for litigation and very little incentive or willingness on the part of people to change, to actually provide disabled people with the kind of accommodation they require to be participating members of society.

1130

Essentially, what I'm saying to you is that whatever the resources turn out to be -- I don't object to increasing the resources but I'm not sure that's in and of itself the solution -- the commission should be given the mandate to take no more cases than it's capable of handling well, and those other cases should be free to go straight to a hearing. We should provide counsel, whether lawyers or lay advocates, whatever, to assist the person in representing themselves before that hearing. That will mean respondents will know cases are going to go forward. We need to do that.

If we don't have the resources to do what we're presently doing now for everybody, then we should make sure the commission uses the resources it does have wisely and make sure that other people have the entitlement to have their issue heard and disposed of one way or the other.

The other point I'm making here is that we could be much more specific about what it is disabled people are entitled to expect by way of human rights. We could say what we mean when we say there is a duty to accommodate disabled people. We have an opportunity as we draft the regulations, for example, under the Employment Equity Act, to say what we mean and what it is that an employer is expected to do to accommodate a disabled employee.

We have accommodation guidelines which were released in 1989 by the Human Rights Commission which don't have the force of law, but right now the government could take those accommodation guidelines and make them regulations. There's the authority right now, and that request has been made by every chief commissioner since 1989 to the ministers of Citizenship asking that it be done. That has not been done, and it could be done and it should be done. It would simplify cases and clarify the position of disabled people enormously.

Finally, during the last election the Premier spoke in support of the idea of an Ontarians with disabilities act, patterned after American legislation, which would essentially set standards in a number of areas; for example, access to buildings, to transportation and so on. This was done in the United States and has been successful in removing a number of barriers, and it again relieves the pressure on the litigation system. You've set standards and people are expected to live by them. You can dispute what the standards should be, and one would expect that the standards might well change over time and people have to be given time to adapt in some of these areas, but it would mean we're not totally dependent on individual cases in litigation, as at present.

Mrs Witmer: You indicate here that the implementation of the employment equity regulations are going to help the disabled and that there need to be some expectations provided. What type of accommodation measures do you think the employer community should be providing for the disabled community?

Mr Baker: The draft regulation speaks of a process that would work, so process is quite important in this area. If people don't know that they're entitled to ask for accommodation or if they don't feel comfortable with that, they will not be capable of performing the job because they will not have the accommodation they need.

Second, there's mention in the draft regulation of human assistance, which is probably the most difficult area of accommodation because it's often an ongoing expenditure. This would include sign interpretation where necessary, personal assistance and so on. That is addressed in the regulation, as it is in the regulations under the American legislation. That's proven to be workable and feasible: Employers are living with that there and I expect they will be able to live with it here.

Those are two points addressed in the regulation. We would prefer to see a clearer statement made about the extent of the economic obligation on employers.

Mrs Witmer: What is the extent, in your mind?

Mr Baker: I haven't got a number to give you. It would have to be a fairly complex formula based on the scale of the operation of the employer. That is what the courts are saying in the United States. They have regulations which are much more specific in this regard.

I can't give you a number, but I'm saying pick one and then we won't have to litigate it; we'll be able to know where we stand. If it's not going to be very high, maybe the disabled community has to live with that, but having clarity is preferable to holding out false hope and encouraging people to litigate on something which ultimately may not be successful anyway and just delays the whole issue interminably.

Mrs Witmer: You've made an excellent point: the need for clarity and not to hold out false hope. Oftentimes legislation is passed and there are great expectations, and this document is part of that, but I don't think we will ever live up to the expectations that have been created in people throughout the province.

It's interesting to listen to your presentation. You probably heard me say that Ms Brown feels that she has been dealing with the backlog well, and we've certainly heard something quite different from yourself, and it is the disabled who bring forward the majority of cases before the commission.

Mr Baker: I'm not sure it's the majority, but it is the largest single group, I know that.

Mrs Witmer: That's right. You obviously feel quite differently, that there are major problems that still need to be resolved.

Mr Baker: There are major problems, and there's a lot of pain out there for people who are being told they don't have human rights.

In relation to your point about expectations, there are many other countries -- I would say most other industrialized countries -- which give disabled people valid reasons to have higher expectations than they do in this country. I think we could do better and I don't think it would affect our competitiveness. I think business is more receptive in this area than many people might believe.

Mrs Witmer: I would agree with you there. I think they are quite receptive, but we have to establish some clarity and some guidelines so they know what the expectations are, on both sides.

Mr Baker: There's a lot of fear because of the uncertainty.

Mr Rosario Marchese (Fort York): You said you had met with Ms Brown. You've outlined to us a number of problems, and I assume you raised those issues with her.

Mr Baker: Yes, I did.

Mr Marchese: How did you feel about the conversation you had with respect to them?

Mr Baker: She'd been in the province I think two weeks at the time, so she was simply gathering information. She shared our concerns, but to date I can't honestly say I can detect any change. To a certain extent I detect a worsening of the situation in relation to this problem of the definition of disability, because we have six cases right now. They come in here and there, but to have them all come in at once suggests it's more widespread now.

Mr Marchese: I was about to say that I would assume, given that she'd met with you and you raised those points, she would take them into account. What you're saying is that from the facts, perhaps it isn't happening. My assumption would have been that they would have been taken into account in terms of the work they have been doing with respect to a number of issues. I think they've outlined eight issues they've talked about in terms of improving the efficiency of their operation.

Mr Baker: Yes, I read those, and many of those are very important. Computerization, for example, was just unbelievable. They couldn't find files. It would take months for them to find where a file was.

Mr Marchese: Right. So all of these -- implementing a quality and quantity assurance system; establishing a coherent and meaningful customer service program; streamlining and enhancing enforcement procedures; using technology; a lean and rational organizational structure; accountability; training and development; and acting decisively to ensure organizational health, including the use of sound anti-racism principles -- would be what they should be doing, but perhaps it may not be enough or we still have to look at other areas for improvement. That's the question I want to ask you.

1140

I shouldn't be arguing for Ms Cornish, but based on the report that she's written and her presentation, I'm assuming, she would argue that the whole system needs to be overhauled; that these points in and by themselves may be good and nice, but it's not the right approach to dealing with human rights issues.

Do you believe the system needs to be overhauled in order to get to the questions you've raised, or do you believe that somehow continuing to work on these things they have started to work on in the last four or five months is what is needed to get to the problems you've raised?

Mr Baker: The things I've heard about the changes within the commission I regard as generally positive, and certainly I am very positive about Ms Brown; make no mistake about that. But I have not seen any action on the issues we took to her when she first came. My conclusion is that the backlog would not be going down the way it is if appropriate attention were being paid to these issues, because there would be more complaints being filed, there would be more complaints being dealt with more seriously, and there would be more effort and research being put into certain systemic issues which are not being dealt with now.

At the end of the day, I do not believe the commission is going to be able to address its problems through efficiency and management expertise alone. I believe they're going to have to restructure, and that's why I support the basic recommendations in Cornish. I'm not wedded to any particular recommendation in there. We have to be flexible, and that's what I've tried to be here. For me the key issue is clarifying what people's rights are and making it clear in everybody's mind that people will have their day in court, and that will encourage settlements.

You know, 97% or 98% of wrongful dismissal actions, which are comparable in many ways with the vast majority of these complaints, settle. That's not what happens in human rights. These things are gold mines for lawyers, it's true. I may be speaking contrary to the interests of my profession in saying that, but the real interest of the province, if you're not going to just walk away from human rights for people, is to encourage settlements of complaints by clarifying what people are entitled to and how they're going to get it.

Mr Curling: An excellent presentation, and I want to commend you. When Mrs Brown came before us, she said a couple of miracles had happened, and the $6 million had done it. Give me $6 million and I'll reduce the backlog and reduce the workload and reduce some of the work that was piled up. Mary Cornish made a statement saying that it hadn't solved one discrimination practice, that all it has done is reduce the workload.

Mr Baker: If I may say, I think the truth lies somewhere in between.

Mr Curling: I think so. In reducing it, they must have solved some, but basically I don't think we have progressed a lot.

I was reading through the recommendations you put forward, and some of them are quite interesting. So is Mary Cornish's report. You said you hadn't married them or correlated them in any respect, but you have no quarrel with Mary Cornish's recommendation.

Do you feel the government is serious about the reformation of the Human Rights Commission? If you feel that way, why have they not responded to the Cornish report recommendations? Do you think they have a commitment? I don't want to be partisan. The fact is that the Liberals get recommendations and the Tories get recommendations and the NDP gets recommendations, and is there action? I just wonder if you think any government has demonstrated any true commitment to human rights in this province, to act upon recommendations that have been put forward to them?

Mr Baker: I think the best way to answer that is to say that I have seen no indication that the government is going to implement the Cornish report to this point in time. I remain hopeful that this government, or any government, would be committed to human rights in this province and would see that some restructuring is going to have to take place to deal fairly with human rights issues in a way which is affordable by the province.

Mr Curling: Education would help all of us, those who are being discriminated against, to understand human rights violations. As we educate people, we would find more cases coming before the Human Rights Commission. I understand there are only 65 officers there who deal with cases, so it will increase. Do you think more funding would assist?

Also, this commission should maybe be reporting to -- I think you mentioned that in your recommendations, but I was reading it so fast I just wanted you to confirm it -- a legislative committee instead of to a ministry, because most of the human rights cases are directed at the government.

Mr Baker: To take the second point first, I'm aware of the Cornish recommendation. I don't have strong views on reporting contributing to the solution to this particular problem. To my knowledge, the independence of the commission has not been a big issue to this point.

In terms of the issue of 65 officers, you're aware that Cornish proposes a very different approach to that question. I'd have to say I'm flexible on that. The number of officers could be increased; the Cornish proposals could be implemented. I'm saying that the officers, however many there are, should be told they're going to be doing a quality job and are going to deal with complaints in a reasonable time. With any complaints the commission can't deal with, people should be free to go to a hearing quickly, with the assistance, if they would be considered entitled to financial assistance, of a legal worker or a lawyer or whatever, have their day in court and get it over with one way or the other. That's what I think.

The Chair: Thank you for your time this morning, Mr Baker, in appearing before the committee and making a strong contribution on behalf of ARCH.

BHAUSAHEB UBALE

The Chair: Our next deputation is Dr Ubale. We welcome you this morning and we also would like to thank you. You've been very accommodating about fitting in with cancellations and moving your appointment time around, and the committee appreciates that.

Dr Bhausaheb Ubale: I must apologize that I have not made any written submission, because I was abroad and I only came back two days ago. I got the invitation and I thought at least I would come and express some of my views.

As you might know, for I served this province as a human rights commissioner for eight years and the federal Human Rights Commission for three years, I have been arguing all along the number of changes I would like to see. I appeared before this committee on October 6, 1989, and made a detailed presentation. Apart from that, all my public statements on this issue explain my own position. I thought at that time that the committee had very little time, so when I made a response to Stephen Lewis's report -- I wrote a book, as you know, The Politics of Exclusion: Multiculturalism or Ghettoism, in which I devoted eight chapters to the whole development of resolution of human rights in Ontario and how we should proceed, what needs to be done, including employment equity. I did that immediately so that at least members would have the benefit of all the development that had taken place, so when they responded to Stephen's report they would have all this at their disposal.

I am just going to restate some of my own views and then perhaps we may engage in discussion. That's what would be most helpful. I want to state very clearly that this is a non-partisan approach; I'm in this field because of social concern and all of you are also looking at this issue from that perspective.

I'm not going to deal here with the complaints about the Human Rights Commission and what the staff are doing, because from my own practical experience, commissioners as well as staff have been doing their work at a great personal cost. They are very dedicated persons, people with whom I was associated and with whom I am associated even today. They are extremely socially conscious people, so the criticism that comes against them is not so much because of a lack of work or of devotion on their part, but we are dealing with a very defective instrument. Therefore, when you are looking at the operation of this Human Rights Commission you have to ask the fundamental question, are we serious about human rights in this province?

1150

If we are, then my submission to you is that the instrument which we created in 1962 is not applicable today in the present form. We have gone through this cycle of complaint and resources. We appeared before the committee, asked for more resources. We tried to do a lot of experiment inside, a fast-track process. We went to the United States, we got experts from there. A number of experiments have been done to reduce the backlog. Sometimes we manage to reduce the backlog, then again after three or four years the backlog increases; you come back again before the committee, and public criticism mounts. These are cycles, and this comes from two reasons.

The case-by-case approach we started initially was very helpful when the Human Rights Commission was at an elementary stage. At that time, whenever the complaint was received the respondent immediately reacted. There were a lot of successful cases in conciliation. Now the whole quality and quantity have changed in the sense that the respondents are using lawyers, so the whole issue of quality has changed. Therefore it is taking much more time for an officer than it used to take before.

As I said, you have to deal with fundamental things in the sense that any resources that you may pump into the Human Rights Commission are not going to solve this problem today because after a few years the commission will be here again.

I suggested at that time and I am still of the opinion that it is important for us to take a fundamental look at the commission, at the structure of the commission, the way we operate, because commissions should get out of a case-by-case approach. It is not going to help. It's a graveyard. A number of institutions in other countries have gone through that. The United Kingdom in 1965 established a race relations board. They went through that process and found that in spite of all the resources that were spent, they were not successful. As a result, in 1975, the Commission on Racial Equality was appointed and the United Kingdom gave the case-by-case approach to industrial tribunals so the people could take the cases to other courts.

We may have to look into that at this stage. One of the successes we had was at the conciliation stage when the Human Rights Commission got involved. When I was a commissioner at least 65 cases were conciliated, so we had that success. If you ask the complainant to go directly to court, that mechanism may not be available, so I have suggested all along that once a case is dismissed by the Human Rights Commission the complainant must have a right to go court. Today, once the case is dismissed the complainant has no options, no alternative to go anywhere else. Reconsideration is not appeal.

Ultimately, I came to the conclusion that you need a major partner in this. In the United States you will see that the Equal Employment Opportunity Commission farms out investigations to all the municipal governments, to other institutions, so that backlog, the workload, is now reduced.

Therefore one of the suggestions I made, and I still strongly believe it, is that you have a model of the police commission: You have at the regional level police commissions. I would suggest you follow that model with the Human Rights Commission. The advantage you will have is that you create regional commissions so that people in the regions, say for example London or Windsor, if you have six or seven commissioners working there the commission will have far more influence on the local communities, solving the complaints then and there rather than concentrating here at the Ontario level. Doing that, you will have a maximum involvement of a large number of people in the human rights movement. At the same time, having a municipal government as a major partner, you will at least reduce a lot of the workload and administrative expenses, leaving the Ontario Human Rights Commission to deal with systemic discrimination.

Systemic discrimination is a major problem. Once the Human Rights Commission is bogged down in dealing with a case-by-case approach, it has no time to deal with systemic discrimination. Your major problem is systemic discrimination, and therefore I'd like to see that the Ontario Human Rights Commission deal with systemic discrimination, and any appeal arising out of a complaint from the regional commissions, the Ontario Human Rights Commission should be able to deal with it.

That creates another problem in the sense that now you are in the process of establishing an employment equity commission. The work involved in systemic discrimination and an employment equity commission's work is much more overlapping. There is no fundamental difference in the sense that you'll be duplicating the work; therefore there may be room for you to consider merging these two together.

Why have a separate commission when you have a Human Rights Commission? The human rights movement deals with three issues. One is social education, public education, because discrimination arises out of engrained attitudes which cannot be changed by legislation alone. It has to have massive social education, public education, attitudinal changes. That's one instrument you have. The second instrument you have is the enforcement of law, which is existing legislation. The third instrument you have is what we call employment equity. When you apply these, the mixture has to be change as society goes along. Therefore, there has to be a lot of coordination, work relationship. That cannot exist if you have a fragmented approach.

If I'm an employer, I'll feel very uneasy having one visit from somebody from the race relations division coming and giving me a lecture on how we should change our behaviour, the Human Rights Commission coming and giving me another lecture, and then employment equity people coming. For the same one work I'm having three agencies knocking at my door, and I'll get very angry about it. That is what is happening.

Therefore I suggest to you, with great urgency, don't look only at how much money we want, whether this procedure is working or not, whether that statistic is proper or not, because I can produce those statistics. If I want to reduce the case load, we can add up some methodology and reduce the case load.

But investigation is qualitative. We may close 30,000 cases, but was it quality? Has anybody checked that? As I said, the complainant has no recourse if the complaint is dismissed, so there is no way for anybody to know whether that was a qualitative investigation.

Rather than just bog down with this kind of statistical play, I want the members of this committee to take a really serious look at it. Where are we going? What kind of society do we want? Is this instrument today applicable? Is there any room for change? My honest submission to you is that there's room for change. You must look at the fundamental issue of the Human Rights Commission and human rights movements in this province rather than just merely an operation.

Thank you very much. If you have any questions, I'm willing to answer.

1200

The Chair: We're starting with the government members this time. No questions? Mr Curling.

Mr Curling: I'm surprised the government has no questions, but I presume it was so precise and so informative that there's a lot of food for thought in what you said.

Dr Ubale, I want to thank you for coming before the committee. Again you've made an excellent presentation. As a matter of fact, if I dare take the liberty to say this, I think it's one of the best presentations I've heard overall on what Ontario should be doing. We've spoken a lot about reform of the Human Rights Commission and we have all -- I myself am guilty of that -- narrowed in on one aspect of it like backlogs and systemic discrimination and we don't look at the overall structure.

The key question you've asked which we must toss in our minds as legislators is, are we serious about human rights? As soon as we answer that we can proceed. I am serious about human rights in this province, in this country. I think we have the opportunity to change that.

You said a rather interesting thing. You said we already have a police commission which is a model we could copy or look at as a direction in which to go. You're saying that after we have looked at the Human Rights Commission and it only deals with systemic discrimination and not case by case, who would deal with it case by case then? Are you saying the police commission?

Dr Ubale: The regional commission should do a case-by-case approach.

Mr Curling: Regional commissions of human rights?

Dr Ubale: Yes, the regional commissions. If you set up one in Hamilton, one in Windsor, one in Toronto and one in Ottawa, they should do a case-by-case approach because they are more effective at the local area. They can attempt a lot of conciliation, they can pursue the employers, they can do a lot of changes, because they have a day-to-day contact with the local employers and in education.

I'm saying that I would have preferred to have that case-by-case approach handled by the courts. Because there are benefits of a conciliatory mechanism, in our human rights act we have that conciliation where people sit together and settle their cases. That mechanism may not be available in the court system. So what I'm suggesting is this. Suppose somebody's a complainant and lives in London, Ontario. He or she can file a complaint with the London human rights commission. Under the same act, all you have to do is delegate the powers to that commission. You have already a human rights act, so when an individual files a complaint with London, the London commission can process as it is done here now at the Ontario commission. They can process a complaint. If the complaint is dismissed and if the complainant is not satisfied, that complainant can either file an appeal to the Ontario Human Rights Commission or can go to the court directly.

What is happening, especially in the area of race and a number of other areas, is that we have systemic discrimination. I'll give you an example of the United Kingdom when they went to this process. They began sector by sector. They took the transportation sector, and all 30 or 40 officers went into the transportation industry for six months and identified what had been an impediment for minorities to get promoted or discriminatory behaviour. They understood the system and then made a ruling to the entire industry that it must change its behaviour, otherwise the commission would take in a complaint. They gave the industry, say, one year to change its methodology, any bottlenecks it had for minorities and others. That report was submitted to the commission and the commissioners were able to satisfy it and they dealt with it.

If you go sector by sector in systemic discrimination at a provincial level, then you don't have that problem of backlog. What is happening is that if I'm a chairman of the commission -- 75% of my time when I was a commissioner was spent on dispelling the public myth and only 25% of my time was spent on constructive work. One of the worst things you have is a disgruntled, dissatisfied complainant, and we have many because of the existing procedure. The disgruntled, disappointed complainant goes to some of his own groups which feel that he or she was discriminated against and then you have newspaper articles and the whole commission is defamed.

It is for that reason I was pursuing that. Operationally, there are two sets of things: The Ontario Human Rights Commission must specialize in systemic discrimination alone so its resources could be effectively used, while the case-by-case approach would be dealt with by municipal commissions at the municipal level.

Mrs Witmer: Are you planning to put anything more on paper?

Dr Ubale: I have already; it is in Hansard. I did that on October 6, 1989. And the details are in my book, which is in your library here.

Mrs Witmer: That would be very beneficial. You talk about systemic discrimination. What is your definition of systemic discrimination?

Dr Ubale: The system that prevents minorities, women and others, getting equal opportunity. For example, during my own time we were dealing with hiring in the police forces. We had a battle with the Toronto police force because they had a system where to join the police force you had to be five feet, six inches. That was the system, and they said, "We don't care whether you're brown, yellow or anybody, as long as you can meet that criterion." Their intention was not discriminatory, but the result was discriminating because it was preventing large numbers of Ontarians, Orientals, from joining the police force, so therefore it was defeating the purpose of the Ontario Human Rights Code, which ensures equality of opportunity. The system was set up in such a way that it prevents others joining that organization, and that's systemic. It's a system we are dealing with. We are not dealing with the intention, but the result.

Mrs Witmer: I appreciate that difference.

When we had our other individual in just before you, Mr Baker, he talked about the disabled. The statistics confirm that they are the largest group in terms of bringing complaints forward. What do you perceive to be the systemic discrimination they face within the system that needs to be overcome?

Dr Ubale: Various rules and regulations. We are all disabled. I mean, I'm disabled if I take my glasses off. We faced that problem, when I was at the Canadian Human Rights Commission, with the armed forces. For everything else the armed forces would need that you had to be physically fit. That was not necessary, because with corrective measures now, we are able to do the work. Therefore, the job description is such that it clearly is systemic discrimination.

I can give an example. Take a receptionist's job. The people in the human resources department may say, "What is the function of a receptionist? Well, 50% of her time is on receiving people, and 40% is for typing." What do you do with the other 10%? They may say, "The other 10% is filing; you go to the rack and file it." Because of that 10%, they're creating a system that prevents a physically disabled person from taking that receptionist's job. That 10% can be done by anybody, but by building that element in the job description, they are doing a systemic discrimination. They are creating a system by which they are preventing a physically handicapped person joining that position.

There are a number of situations in each company where such things are being done, and you have to find out whether a function can be done differently. But that needs a lot of resources, a lot of studies, and this is where I feel a human rights commission should devote his energy and resources, rather than just adding numbers, cases we deal with.

Mrs Witmer: It's a very complex issue, and obviously this committee writing a report is not going to solve problems that remain. Thank you.

The Chair: Thank you again, Dr Ubale, for your contribution and your time appearing before the committee this morning.

Dr Ubale: I thought I got an easy time.

The Chair: It's all your years of experience, probably.

1210

UNITED STEELWORKERS OF AMERICA

The Chair: Now we have our rescheduled appointment from yesterday, Mr Brian Shell from the United Steelworkers of America. Welcome, Mr Shell.

Mr Brian Shell: I initially would like to apologize to all of you, particularly to you, Madam Chair, and to the clerk, for my late arrival yesterday, which was in fact after you had adjourned. I want to express my personal appreciation that you have allowed me to reappear today.

I appear before you on behalf of the United Steelworkers of America, whose Canadian general counsel I am. In that capacity, I advise the Steelworkers, a union consisting of some 170,000 people across Canada, largely in the private sector, and about 70,000 or so members in Ontario, in virtually every sector of Ontario's economy, from nursing homes to steel plants, from mining to hospital employees.

A trade union has an increasingly complex role in the delivery of human rights legislation. At the same time, we promote the advancement of non-discrimination. We train our local union activists. We seek to engage with employers in an enforcement process by which employers will not tolerate discrimination in the workforce. Yet we also participate in the administration of collective agreements, and in that capacity we have special responsibilities to make sure that our collective agreements don't violate the Human Rights Code. These obligations have been recently enforced through a number of important decisions of the highest courts in Canada.

It is clear that trade unions have liability as well as obligations under the Human Rights Code, so at the same time we are defenders of our conduct and advocates on behalf of those seeking and claiming human rights administration. That puts us in a very special place. That very special place means, first of all, that we actively promote the adjustment of collective agreements to accommodate the interests of those who can claim lawfully to have accommodation; for example, religious minority members, persons with disabilities, women. The Human Rights Code imposes accommodation obligations on employers and on trade unions in the management of their collective agreements.

But where discrimination appears to be something that is simply perpetrated by an employer, we join with our member who is a citizen, who is a worker, who is a person in a community, and we assist that person in the process by which such a person can claim rights before the Human Rights Commission. Sometimes we respond to complaints filed by our members. More often we are the advocates on behalf of our members against employers who we say violate human rights laws. Therefore we deal with the Human Rights Commission, as a client of the commission, on a regular basis.

Like some of the advocacy groups that have appeared before you, and most interestingly the group that represents the Centre for Equality Rights in Accommodation, we bang our soft heads against the administrative nightmare of the Human Rights Commission. Even where we are responding to a complaint, the profound delay causes enormous costs to the responding party, whether it is a trade union or, more often, an employer. So the system fails to serve complainants; the system fails to serve respondents.

This is not new. Dr Ubale made it clear. I suspect virtually everybody who's come before you has said it. On my review of the remarks of the newly appointed commissioner, Ms Brown, she's made it clear. There is no pretence that the system is working. There is an apparent recognition by everybody that the system isn't working. Indeed, each of the three parties represented in this room has now been able to constructively contribute to the system's failure, so you all ought to be congratulated. Through the administrations of each of your recent governments in the last decade, this system is a mess.

The present government appointed Mary Cornish, who I know appeared before you, and she produced more than 18 months ago a detailed, comprehensive and extremely interesting report. If it is gathering dust somewhere, I don't know where it is. There has been, as far as I can tell, no interest shown by any of the political parties in the kinds of systemic reform Mary Cornish has proposed, and there was widespread consensus about the recommendations she came up with.

That doesn't mean people aren't trying. It doesn't mean there's bad will. It doesn't mean there's a lack of consideration and concern for those who suffer discrimination. There have been more boards of inquiry, that's true. There has been a successful effort to clean up the so-called backlog, a source of enormous embarrassment to the predecessor Liberal government inherited by the current New Democratic government.

The fact is that we're busy cleaning up backlog but that there aren't adequate counsel employed by the Human Rights Commission to manage the enormous case load that's imposed upon them. How do we deal with that difficulty?

The fact is that the system is constructed so that it is complaints-driven. If you have a complaints-driven complaint system, you can expect people to file complaints, and if people file complaints and they can't be dealt with adequately, the complaints are going to backlog and you're not going to resolve it.

Mary has come up with an idea that you should really spend some time examining carefully, and you should ask yourselves, I submit, all of you, why hasn't there been movement on the Cornish report? Why have we not grasped the need to have regional and systemic units advocating directly? Why does the executive director of ARCH have to come before you -- again -- and say -- again -- that the enormous numbers of complaints filed by persons with disabilities aren't being heard and that a complaints-driven system is not going to resolve the problem for persons with disabilities?

When Ms Elliott finally achieves, after four years, a decision of the Human Rights Commission and she gets $1,000 for the lack of dignity she received when seeking to park in a publicly accessible parking space which didn't have a space reserved for a disabled person, it gets reported in the paper. Terrific. But what happens in the mall in Scarborough? What happens in the mall in Mississauga? What happens in the mall in Barrie or Thunder Bay or Kitchener or Huntsville or Kingston or Cornwall? Who tells the property mall owner that he must provide parking for the disabled or they will be a respondent just like Ms Elliott's respondent? It's an interesting question. The answer, of course, is no one.

In a complaints-driven system the respondent responds to the complaint. If you file the complaint and it percolates through the system in four years, for four years the complainant doesn't have a disabled parking space for herself in her local mall, in her local shopping centre.

The fact is that this initial concept, that we should not engage in prohibited discrimination and we should prohibit such discrimination and we should give the victims of discrimination access to a system to redress the wrong, was misconceived. It is not the way to remedy discrimination in Ontario. It is certainly not the way for persons with disabilities.

It may be the way for other forms of discrimination. It may well be that you need to have an adversarial process when somebody is asserting, for example, racial discrimination. There may be a dispute on the facts, and whenever you have a dispute on the facts, you need to have an adjudicative process to determine which version of the facts is preferred.

But where you don't have a dispute on the facts, where it's clear that the person is disabled, where it's clear there is not a disabled sticker on the parking lot, where it's clear there is not access to a disabled washroom in the restaurant -- there's no dispute on the facts; nobody is going to assert we have a sticker when we don't -- a complaints-drive system is an enormous failure. It doesn't make changes. If we're serious about wanting to make changes -- and it's hard to know whether we are, given our conduct in the last decade -- then we have to remedy the system by having a new way of advocating, advancing and promoting these rights.

1220

The government and the Legislature have recently embarked upon a new experiment in this direction through the Employment Equity Act. When it is proclaimed and when persons begin to develop employment equity plans in certain workplaces, some of these systemic barriers are likely to be exposed and some of the systemic barriers are likely to be remedied through a process of employment equity plan creation, it's true. But not Ms Elliott, not accommodation in public places; only those aspects of discrimination that pertain directly to the employment relationship, not those aspects that pertain to the advancement of regular, daily affairs.

If we were to advertise a complaints-driven system throughout the client groups that suffer discrimination, we wouldn't just have this relatively small number of complaints. If a government was serious about wanting to advance human rights, we would see billboards saying: "If your rights have been violated, file a complaint. We promote human rights advancement. File a complaint." We would be financing and promoting clinics. We would be creating non-lawyer advocates, not unlike those we've now created in the context of the Advocacy Act. If we were serious, we would be engaged.

This process is a reactive process. You come, as legislators, and you decide to look into this mess, and a little bit of it gets exposed to you. There is an acknowledgement that the mess is real. We ought to applaud the commissioner for recognizing that the mess is real, but she can only deal with the tools she has. She can only deal with the law as you have given it to her and she can only deal with the funds you allocate to her. If you give her bad law and you give her inadequate financing, you should not be surprised that the client groups are unhappy. And you cannot claim, if the client groups are unhappy, that your role is the advancement of human rights. You cannot claim it here, you cannot claim it in the Legislature, you cannot claim it on the hustings, because you will not be believed by the client groups who suffer discrimination.

How can a trade union be helpful? We forced our way into the employment equity process. We insisted and advocated that employment equity plans should be negotiated in unionized workplaces. We claimed that we would be the vehicle to achieve employment equity in the unionized workplace. That's what we claimed. We want to participate in the process in the workplace.

We have no claim to participate in the process when it comes to the Toronto Transit Commission finally, in 1993, obtaining equipment that will permit persons in wheelchairs to use the transit system. We cannot claim expertise when it comes to accessing public parking lots. We have a limited role. Collective bargaining, as experts in the field have recognized -- and I agree with their conclusions -- can only go so far in the advancement of human rights. The minority who suffer discrimination cannot expect their narrow interests, their personal interests, to win in the majority vote that ratifies a collective agreement. They cannot expect it to happen. You should not expect it to happen. It will not happen. That's why legislation is the key.

"We are available to be used for access and for outreach and for education." Are we? No. We engage virtually independently and without any sources of support from the commission or the government in the advancement of the human rights issues we try to bring to the workplace.

Why? Why is it that trade unions and other institutions that reach deep into the population are not the partners of the Human Rights Commission, are not brought in to participate in the development of programming, are not viewed as the vehicle for delivery, as a delivery mechanism? I don't know. Certainly not because we are unwilling. To those who claim that working for change from the inside out is adequate, we cannot fully agree. We think working for change of the human rights system from the inside of the commission out fails to remember that the population is outside. There has to be more integration, more consultation, more consultation, more involvement.

What can this committee do? Well, we know what the opposition is going to do. The opposition will say that the human rights system, since September 1990, is on its way downhill. They will say that not one person came before this committee and said a nice thing about the Human Rights Commission. They will say that any word by the government that suggests that the government is advancing human rights is a failure, is a lie, is misleading. That's what they will say.

The government will respond with the Employment Equity Act, the Advocacy Act, this act and that act. But when push comes to shove -- and push should come to shove before the fall of 1995 or the spring of 1995 -- we have to look to the Human Rights Code and what we've done to change it.

Ms Witmer asks the earlier witness, "What is systemic discrimination? What is it?" as if it is something we can either want to alleviate or maybe we won't, as if we have some choice. Maybe we shouldn't be concerned with systemic discrimination; maybe it just sort of happens.

The Supreme Court of Canada tells us: "It really doesn't matter what you say in your Human Rights Code. Adverse-effect discrimination is unlawful in Canada." Period. The end of the story. You cannot have adverse-effect discrimination. If your policies cause an adverse effect even though you intended it not to be adverse, it is unlawful, period. That's a departure from North American law; that's a departure from US law. How have Americans moved? They've moved to things like the Americans with Disabilities Act, regulations that promote and advance in a coherent way the alleviation and removal of barriers for the disabled.

It's too late for us to start at the drawing board now. This is not the time to start and reopen the Human Rights Code. We've moved far along with the Cornish report. We have to open it. We have to select from it those aspects of change that will make a real difference. Few people will stand up and say, "We want to defend discriminatory conduct." Many believe it, but few will stand up and say it. Few will stand up and say it in your Legislature. Few will come forward in front of the Legislature and yap about it. It is unpopular, unseemly, it's not to be done. As a result, there will not and cannot be substantial opposition to significant change in the human rights field.

Most Ontarians agree with the consensus of values that says we should have effective non-discrimination systems. Most look to the government for leadership in making it happen. The Steelworkers look to the government to make it happen as well. We look to the opposition for supporting it. We look to all of you for assuming your share of responsibility for the failures to date.

1230

We know some very controversial pieces of legislation come before your House, people get very upset, and three weeks later they're law. We don't have to name any specific recent pieces of legislation that have created enormous divisions within Ontario and the impact on a million employees in the public service to focus our minds on how a determined government can act with determination. We know it's possible. We can completely reshape the wage packages of tens of thousands of people, notwithstanding other obligations that one might have recognized, even though many, many people are upset.

So to those who say to you, "We can't open up the Human Rights Code, it's like opening up a barrel of worms; things would just come out of it; it'll be a big, huge mess; people will come forward, we'll have to study it, red papers, white papers, green papers; we just can't do it; the legislative process is so complex and difficult," we say hogwash. We know you can do it. You have shown your capacity to do it. You have shown your determination when you are determined. We think that the role of this committee is to trigger and kickstart that determination, because if you leave it in the hands of those who currently sit on the determination, we will be through an election campaign, with a new and different group of actors from whichever party may succeed before we kickstart human rights reform.

Those are the comments of the Steelworkers, and I'd be very happy to respond to any questions any of you may have.

Mr Marchese: Your presentation is quite clear. I was about to ask, as I did to Mr Baker earlier, about whether you think we can reform the system, as they've been trying to do, or suggest even other ways to make it more effective, or whether we should be overhauling it. Your views are quite clear that we should be overhauling the system, obviously. You said we should open the code and select changes that will make a difference and just do it.

From the Cornish report, and you probably have much better memory than me even leafing through it, in terms of the Equality Rights Tribunal, a revitalized commission to be known as Human Rights Ontario, equality rights centres, an Equality Services Board, are those things you would support being part of a new code, or some of those, or are there additions you would make?

Mr Shell: The Cornish report is a comprehensive document. There are things about it we think are terrific, and there are things about it we think are overreaching, and there are things about it that we think won't work. For example, as to the concept of a supertribunal, just to give one, we don't think you need a supertribunal. We think a supertribunal will create a much larger bureaucracy than we need. It does not seem to make sense to us that a supertribunal will be advancing anything except creating a supertribunal.

What is critical about the Cornish report is (a) it provides regional non-lawyers available to people who need advocacy skills, and (b) it creates a system of expeditious dispute resolution, and I don't mean expeditious dispute resolution over the course of 18 months.

As you know, when a union organizes a workplace and the employer decides to fire the union organizer -- I know it's hard to believe this happens, but the labour relations board reports are filled with examples of it. Right now in Ontario when it happens -- and it happens all the time, and we complain about it all the time -- the union files a complaint, and 21 days later it's before a three-person expert tribunal. That's if the union doesn't seek interim expedited relief, in which case it's before the tribunal on affidavits in 48 hours.

All I can say to you is, if it's good enough for a union seeking to organize, it's good enough for a man or woman in Ontario seeking to advance their rights. It really isn't more complicated than that. If the labour relations board, with reasonably limited resources, without a regional system, is capable of handling thousands of complaints per year, then we need something that's three times the size of the labour board, that is regionalized across Ontario, that has skilled and committed advocates working in the system with adjudicators if necessary and mediators and conciliators, and a system of dispute resolution so we don't go before the board in three weeks but we go before the board in six weeks or eight weeks. But we're talking about weeks, not months -- weeks.

In so far as the Cornish report puts in place a system that would resolve the backlog and give people the understanding that they really do have the capacity to bring the offending party to answer for their offence, and one that is fair, that allows the alleged offending party to defend fully and respond, all at the public's expense, because the question of discrimination is a public issue, not a private issue, in so far as the Cornish report promotes that, we support it. In so far as the Cornish report creates places for various high-paid bureaucrats to relocate in a new, reformed bureaucracy, one has to look at it and see if it would really work.

We don't think, for example, that the new Employment Equity Tribunal should be married to the human rights process. We think the Employment Equity Tribunal is going to have a lot on its plate in the next several years just to figure its way through and help the parties achieve employment equity plans. We don't think what you do to the Employment Equity Tribunal is dump on it the 15,000 human rights complaints per year that are going to have to be managed and then look at it and say, "You haven't been very successful, Employment Equity Tribunal," because its response will be, "Look what you gave us." It doesn't seem to make sense. Give people enough so that they can chew, not so that they choke.

With respect to the balance of the Cornish report, our views on the Cornish report have never been sought. Nobody has ever come and said: "Trade unions, public, equity-seeking groups, government, business, what do you think of the Cornish report? What do you like about it? What don't you like about it? Tell us."

Mr Curling: I know you came in yesterday as we were just about to leave. You have made a second attempt and I am glad you did, because you have made some rather important points, maybe hard to take, but it's the reality. Human rights is a serious issue and we as legislators must be committed to that cause. Dr Ubale mentioned that: Ask yourself the question of whether you are. If you are not committed to human rights, we will not resolve the problem we have.

My question is extremely easy to ask. I don't know how easy it is to answer. Today alone, we have had about five presentations that have said almost the same thing: that we must look at the systemic nature of discrimination, that we can develop the bureaucracy to deal with the individual complaints while we look at the other, universal part of systemic discrimination. What is it that you think is stopping each successive government from acting, having all realized that yes, maybe the approach first is to look at systemic discrimination?

Mr Shell: I have thought of that. In fact, yesterday as I was rushing here -- unsuccessfully -- to be on time, I thought of that problem. It must be that I've never been in the Oval Office and I've never had the competing demands on my time that legislators who manage the government of Ontario and the pressures on the resources must experience.

It may be that the disabled and discriminated communities don't have adequate voice electorally. That may be. It may be that they are not organized electorally to make you care. That may be. Or it may be to some extent that the most vulnerable people in our society are indeed the most legislatively weak. There are no huge organizations such as the Steelworkers union or OPSEU or the CAW with tens of thousands of members and huge staffs independent of government who can come forward persistently and make demands on human rights laws the way, for example, the Steelworkers union will persistently make demands on occupational health and safety -- relentless demands, non-stop, weekly -- or on the workers' compensation system or on labour law reform or in the arbitration system, things that go to the heart of their institutional interests.

There are no institutions representing the discriminated minorities except the discriminated minorities themselves, and they are relatively weak, not terribly well funded, not always very skilled organizations. That may be one of the reasons.

Or, more profoundly, the reason is that we are not committed to the advancement of non-discrimination in Ontario, that we want a gloss. We want to have a nice little sweet 1980 Human Rights Code -- very nice, it looks very nice, it says very nice things. Let me tell you, the substance of the code is really quite far-reaching. I've had occasion to talk with academics in Britain and we've gone through our Human Rights Code, and they are flabbergasted about the content of the reforms, largely attributable to the former government of Bill Davis. It is a very impressive document. But when we talk more about how to manage the management of human rights, we just fall all over ourselves.

Is it possible that we want to have a gloss of human rights but we don't really want to have an implementation system, that there are some groups, perhaps employers, landlords, owners of parking lots, who don't mind if you have a Human Rights Code: "But, by golly, don't make it enforceable against me? It's okay to have a code. That's all right. But don't bring it to my table and make me change how I behave by operation of a state regulatory system."

It may be that there is a quiet resistance on the part of contributors to political organizations, taxpayers and other self-interested groups, some of which may be trade unions. I do not think this is, so to speak, all brown and yellow or black and white. There is no right and wrong, good and bad in this. It's hard to know. But from the perspective I'm in as a trade union lawyer, as an administrative lawyer, as a parent, as a person who has a disabled child, I can only come to the conclusion that you're not serious.

Mr Curling: Maybe the way government is organized is systemically dysfunctional. As you said, as we put in the system and bring it forward, each government, each party of the day, has tried and is committed. I don't see any colleague over there who I would regard as not being committed to human rights; neither with the Conservatives. All are committed. Maybe it goes beyond that, to look at the structure of government and the way the system is done so we can put forward the kind of changes that they all spoke about today.

The Chair: We are out of time. Thank you for your appearance and contribution to the committee hearings today, Mr Shell, and I thank the committee members for a productive and cooperative week. We'll see you on Monday afternoon at 2.

The committee adjourned at 1244.