OMBUDSMAN SPECIAL REPORT ON THE ONTARIO HUMAN RIGHTS COMMISSION
ONTARIO HUMAN RIGHTS COMMISSION
CONTENTS
Wednesday 11 May 1994
Ombudsman special report on the Ontario Human Rights Commission
Ontario Human Rights Commission
Rosemary Brown, chief commissioner
Scott Campbell, executive director
STANDING COMMITTEE ON THE OMBUDSMAN
*Chair / Président: Rizzo, Tony (Oakwood ND)
*Vice-Chair / Vice-Président: Wilson, Gary (Kingston and The Islands/Kingston et Les Îles ND)
*Abel, Donald (Wentworth North/-Nord ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
*Cooper, Mike (Kitchener-Wilmot ND)
*Haslam, Karen (Perth ND)
Henderson, D. James (Etobicoke-Humber L)
*Martin, Tony (Sault Ste Marie ND)
*Miclash, Frank (Kenora L)
Murdoch, Bill (Grey-Owen Sound PC)
*Ramsay, David (Timiskaming L)
Stockwell, Chris (Etobicoke West/-Ouest PC)
*In attendance / présents
Clerk / Greffier: Decker, Todd
Staff / Personnel: Murray, Paul, committee counsel and research officer, Legislative Research Service
The committee met at 1020 in room 151.
OMBUDSMAN SPECIAL REPORT ON THE ONTARIO HUMAN RIGHTS COMMISSION
The Chair (Mr Tony Rizzo): I call the meeting to order. Today, we continue the meetings of the Ombudsman committee. Last week, as you know, the Ombudsman made a presentation to the committee of about 15 minutes and then we followed up with questions. We are going to proceed the same way today with Ms Brown.
ONTARIO HUMAN RIGHTS COMMISSION
Ms Rosemary Brown: When the Ombudsman tabled her report on the Ontario Human Rights Commission three years ago, she contributed to a significant body of reports about the commission and the administration of human rights in Ontario. The fundamental concern of those reports and the fundamental concern of this committee is the ability of the commission to provide timely and just service to the people of this province.
If, in the enforcement of human rights, the reputations and interests of the parties to a complaint are allowed to languish due to delay and protracted investigations, if the enforcement of human rights involves violation of due process and the rules of administrative fairness, if the enforcer of human rights lacks or flouts clear public accountability, then not only are the principles of natural justice offended, but the inherent value of the people involved is radically undermined and the primacy of human dignity is denied.
The work of preserving the public interest in human rights is difficult, exacting and complex. As our society has matured, this work has become more difficult, more exacting and more complex. The commission's long history of delay arose as the challenges inherent to preserving human rights were magnified by deficient and poorly deployed resources, a lack of comprehensive staff training and development, inadequate use of technology and by procedural aspects of the Human Rights Code itself.
The body of reports which exists about the commission attests to the sheer amount of thought which has gone into the problem of delay. Taken as a whole, they set out three basic tenets that must be followed if the commission is to succeed as an efficient, fair and effective enforcer of the code and as a foresighted and reasonable advocate of the public interest in human rights.
First, single-issue solutions are not enough. We have abundant evidence of the fact that a case management plan cannot stand alone. In order to be realistic and effective, the strategies which the commission uses to manage its case load must be rooted in a lean, vigorous and inventive organization.
Without undertaking the arduous work of getting the basics in order, like eliminating unnecessary bureaucracy and developing the knowledge, skills and abilities of all staff through respectful and relevant training, and placing the dignity of the people we serve above all other considerations, the most detailed and ambitious case management plan could not and will not succeed.
Single-issue solutions are not enough. To make meaningful change happen, the changes the commission makes must be bold, resolute and comprehensive.
Second, the commission must do more with less when it comes to using public resources. The best way to correct inefficiencies in the operations of the commission does not entail the creation of a more elaborate and more expensive human rights regime. It is unwise to set one's own house in order by acquiring a larger house and a more onerous mortgage.
Indeed, the commission must live in the same world and by the same rules as ordinary people throughout this country. The recession has taught us that every resource counts. This, among other reasons, is why the commission has reduced its number of senior management from seven to four and consolidated the work that was done by seven units into four new branches.
The opportunity to be economical and prudent in our use of public resources has, however, not stifled the commission's creativity. On the contrary, the commission's eight interconnected organizational improvement initiatives are renewing the agency by eliminating waste, establishing clear standards of accountability for staff in both quantity and quality of their work and in making cost-effective use of technology.
This list is not exhaustive of the measures that are under way. Neither is it exhaustive of the ways in which the commission will continue to innovate in doing more with less. One thing, however, is clear, and that is that the commission is seeking to make the best possible use of every public resource entrusted to it.
The third lesson to be learned from the canon of reports about the commission concerns the fact that the accountability for setting the affairs of the agency in order cannot be delegated, shifted or hired out. The program of change which the commission has initiated recognizes and preserves this accountability to the people of Ontario by including checks and balances at each step of the agency's investigative, enforcement and decision-making process.
The Ombudsman and the commission are in full agreement when she points out that the time for consultation, reports or consultant reports is past, and we agree that it is now the agency's turn to exercise every ounce of its professional integrity to make meaningful change happen.
Just as the commission is proceeding with caution to make the best possible use of the monetary resources which the public has entrusted to us, so too the commission is proceeding with caution to ensure that the best possible use is made of the wealth of ideas and experiences which the people of this province have shared with it.
However, in the final analysis, it is the commission which is accountable for the effective promotion and enforcement of the Human Rights Code. Therefore, the commission is proceeding with the painstaking work of making meaningful change happen in the most sustainable manner; that is, from the inside out.
In doing so, we again concur with an observation made by the Ombudsman when she addressed this committee on Wednesday last: This is hard stuff. This means having the courage to take chances. It means having the courage to try some things which have never been done before.
In the 11 months since my appointment as chief commissioner, I have witnessed the resolve of the staff of the commission to get on with the hard work needed to transform it. Accompanying me this morning are a few of the many staff who are making such change happen. I would like to read their names into the record, with your permission, Mr Chairman.
There is Mr Scott Campbell, the executive director of the commission; Mr Neil Edwards, the director of regional services and systemic investigation branch; Ms Lori Rainone, the coordinator of regional services and systemic investigation branch; Mr Carl Dombek, director of legal services branch; Mr Steve Crossman, our program analyst; and Mr Michael Markwick, my executive assistant.
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Despite the short time since the initiation of the commission's program of reform, there are encouraging signs of improvement. For example:
(1) The implementation of the commission's quality and production assurance system has resulted in a drastic reduction in the number of formal cases which we now have that are over three years old. The number of cases in this category has been reduced to 180. That's the lowest we've had since 1989. This is from a high of 416 in 1991.
(2) The quality and production assurance system has reduced the number of unsatisfactory files returned by head office to the regional office for corrective work. This has fallen in fact from 25% of such cases to 5% in the last fiscal year, marking both an improvement in the quality of work produced by the regional offices and a reduction in delay in dealing with those cases.
(3) There's been the introduction of standard time frames for each stage in the life of a complaint. These now hold officers and managers accountable for the passage of each case through the commission's processes.
(4) The commission is also now making rigorous, careful and deliberate use of its discretion under section 34 of the code to eliminate complaints that are filed in bad faith or which are trivial or vexatious in nature. This strategy has resulted in a reduction of the commission's formal case load by approximately 5% in the last fiscal year.
(5) In the fall of 1993, the commission enlisted the cooperation of the boards of inquiry in initiating the use of pre-hearing conferences. Through pre-hearing conferences, the parties to a complaint are able to explore options for settling their concerns prior to the merits of the case being heard. I think yesterday's release of the settlement of the Ontario Hydro case was a beautiful example of a pre-hearing conference which was successful.
This holds the promise of accelerating the resolution of many cases, minimizing the cost of litigation, making the human rights process less litigious and allowing the files which are less amenable to mediation to be heard in a more timely manner. In fact, to date 57% of the files heard in this forum have been settled.
(6) It should also be noted that the 38 files which were the subject of the Ombudsman's investigations have been disposed of as follows: The commission has dismissed 10 of those files after investigation; 10 others have been referred to boards of inquiry; seven have been settled; six have been withdrawn; and the commission has exercised its discretion under section 34 and elected not to deal with five of those complaints. Upon receipt of the commission's decisions, in 13 of those instances complainants have exercised their rights to seek reconsideration, and currently six of these files are under review at the office of reconsideration, which is accountable for resolving them within six months.
(7) Currently, the age of the commission's formal case load is approximately 17 months. This is lower than the average age for 1992-93, which was 20 months, and for 1991-92, which was 22 months. Although it is premature to declare a decisive victory at this point, this statistic indicates that we're moving in the right direction.
These are early signs of improvement in the commission's ability to address its case load in an efficient, fair and effective manner. However, these improvements are not the result of an isolated focus on case management. Rather, they are part of the commission's seamless agenda for organizational renewal and are supported by improvements in the training and development of staff, the development and ongoing monitoring of tight time lines, improvements in the commission's approach to systemic discrimination and improvements in understanding the role of the commission.
A key component of the commission's eight-part program of reform is dedicated to the health and accountability of the agency's staff, and here too some progress is seen.
Since 1991, the rate of turnover of staff has fallen dramatically, from 14% to approximately 5%. I believe this is due in some measure to the amount of time which has been invested in equipping the staff to meet the considerable demands of work in the field of human rights.
For example, since June of last year, 1993, 81 person-days have been invested in the development of training programs. These programs have equipped the agency to do such things as deliver service to customers in volatile situations, hone basic investigative skills and make effective use of information technology in the staff's daily routines.
Over the last 11 months, the staff of the commission, including management and senior management and even the commissioners themselves, have received a total of 362 person-days in training and development. This marks the beginning of a series of training initiatives which will reinforce essential skills in the execution of the commission's functions.
There has also been a fundamental change in the way in which training is being done. For the first time, adult learning principles are being applied in a cohesive manner.
The commission is well on the way to becoming a learning organization, one which fosters continuous improvement and encourages staff to support and to learn from each other as they encounter and resolve the many challenges of work in this field.
The commission has also made progress in understanding both its role and how this role is to be fulfilled.
There is no conflict in the mandate of the commission to be both an impartial and effective enforcer of the Human Rights Code and a strong and uncompromising advocate for human rights principles. Indeed, I believe this is the wisdom and the genius of a human rights commission. If we are not to become a polarized society, if human rights law is not to be reduced to that of an instrument of our irreconcilable division, then there must always be a clear and reasonable advocate for the public interest.
One of the key functions of the commission in preserving the public interest is to remain alert and responsive to the systemic dimension which is present in many cases of individual discrimination. It is very likely that the unequal treatment experienced by one person is also experienced by others who remain silent. By having a body of investigators who are both sensitive to the systemic reality of discrimination and who uphold a standard of unconditional neutrality, it is possible to make the benefits of the code felt beyond the confines of the commission's workload.
However, efficiency and effectiveness are not by themselves sufficient to guarantee the success of the commission. Ultimately, the success of the commission should be gauged by its ability to develop reasonable, foresighted and fair interpretations of the public policy mandated by the Human Rights Code.
The success of the commission should be judged by its ability to foster the climate of "understanding and mutual respect for the dignity and worth of each person" articulated in the preamble of the Human Rights Code. This work cannot be done by an agency which in the words of the Ombudsman is in danger of being "bankrupted by a continuing public focus on delay."
I have welcomed the opportunity to provide detailed testimony before two standing committees of the Legislative Assembly of the ways in which the commission is honouring its own accountability for preserving the public interest in the enforcement of human rights.
The commission is honouring this accountability with resources which have not kept pace with the increasing demands on its services. Despite the commission's best efforts to streamline both its organizational structure and its procedures, and despite the commission's continued innovations in doing more with less, it is quite possible and indeed even foreseeable that there may come a time when the limitations inherent in resource constraints will make our task impossible and our goals unachievable.
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The Ombudsman has called for a new level of support for the commission. I welcome that call. The staff of the commission have undertaken the most comprehensive program of organizational reform in the agency's history. In order to realize the full potential of the agency's revitalization, the commission needs to have room to exercise its accountability in creative and responsible ways; in short, room to breathe.
When the members of this assembly resolved to create the Ontario Human Rights Commission 32 years ago, they affirmed that every person in this province had an inherent dignity and worth which should not be debased, fettered or obscured. Resolving to sustain and encourage the commission during the season of its renewal allows you, the members of this assembly, the opportunity to ensure that there remains a worthy advocate of Ontario's commitment to this belief.
Mr Chairman, with your permission, my staff would like to join me: Mr Neil Edwards, director of our systemic investigation and regional services branch; Mr Scott Campbell, executive director; Ms Lori Rainone, systemic investigation and regional services branch.
The Chair: Ms Haslam, last week we decided we were going to go to 20 minutes for each party, with whatever time left split evenly between the three parties.
Mrs Karen Haslam (Perth): We've had a discussion about what the committee must determine. We must determine whether we support the conclusion of the Ombudsman regarding the problems of delay or whether we feel that what you have done in the interim, right up until today, with some of the statistics is adequate to take care of the problem, so we have a number of questions around some of the case load and things like that.
I want to look at strategies to address your delay problem. You mentioned internal changes that you've made to look at some of the delay problems, and you said that increased resources were not necessarily the solution, talking about a larger house. You also say you have to look at a better use of resources. One of your other comments was that you should be proceeding with caution in looking at some of the solutions you put in place.
We looked at the case load situation statistics. The age of a case is based on the time it was registered as a complaint following the ESI, or early settlement initiative process. While the number of cases more than three years old, as you mentioned, decreased in the past year, it seems that the number of cases from one to two years old increased and the number of cases from two to three years old increased.
The question we had when we first examined it with the previous people who were in to talk to us was whether all the resources went to look at the cases more than three years old. It was great that the cases more than three years old were handled, but it didn't solve the problem, because it only left a bump growing in the middle of an increase in cases one to two and two to three years old.
Have you examined those developments, and to what do you attribute the increase of those cases in the middle? Is it because your resources went to reaching a goal in the over three years old, which then begs the question, has that really addressed the problem of delay or have you only moved the resources to look at a specific case time?
Ms Rosemary Brown: I'm just going to make some general comments about the handling of the case load and then I will turn it over to staff to give you more detail.
First of all, I think 11 months is not a long enough time to assess fairly or accurately whether the new initiatives which are now in place are working. I think we need more time. What I mentioned were some indications that we seem to be moving in the right direction. We introduced these eight organizational changes and initiatives and, as I said, put them together as a seamless web to deal with the agency's problems because we thought this would be one way of dealing with the question of our case load, formal and otherwise.
The other thing is that we have a goal, and our goal is to reduce the passage of all cases that come before the commission to within a year. We want a case to come in, to be dealt with and then reach at least the stage where it's referred to a board of inquiry or resolved in some other way within the period of a year. That is our goal. Everything we have put into place is with this goal in mind. The question of the aging of the case load was clearly on our minds when we were putting these new internal initiatives into place, and the initiatives were expressly designed to address that.
Mrs Haslam: You said you set goals, and you said it was a year. Were those met, and is one year the goal you set for all cases? You say the average age is 17 months, and I work that out to 68 weeks. But when I look at the chart we were given by the Human Rights Commission on how long it takes it to go through standard time frames for case proceeding, the 68 weeks doesn't make your time frame, according to the statistics for the ordinary case work. Were your goals met for a year? Obviously, they weren't.
Ms Rosemary Brown: No, because the initiatives have not been in place for a year. This is my earliest statement. We have now introduced these initiatives, and some of the initiatives have not been in place for 11 months. We've started this process. I've only been involved for 11 months, and that has not given us time to see whether the initiatives work.
Mrs Haslam: What would you think would be a good time line? There have been a number of stages of internal changes, changes to how you work. What type of time lines are you asking for or expecting before you see whether those internal changes are effective?
Ms Rosemary Brown: Let me tell you what results we've had to date, before I tell you the time line. We already have a reduction in the two- to three-year cases between 1992 and 1993. We're already beginning to see a reduction in that fat statistic you're using of two- to three-year cases. We're already seeing a reduction -- and I mentioned a number of them -- in the cases more than three years old. We're already beginning to see that.
We have probably been more generous in terms of setting our goals with ourselves, saying that we're going to have to give ourselves at least two years, maybe longer, before we can actually say that these initiatives are not working. It is going to take time, since we're starting from the basics. We're actually beginning with the upgrading of the skills of our staff. We're starting from the basic. We're actually beginning with establishing time lines, we're actually beginning with improving our monitoring system, and streamlining what we are doing. We're actually starting with the foundation, so we have to give ourselves time for that to work itself through the system.
Mrs Haslam: If you're giving yourself the two-year time, the other concern is the potential for cases to be dismissed by a board of inquiry as a result of delays in the commission. Two years is a long time to wait, given the system of delays and the existence of the possibility, due to the Shreve case, of losing. How many cases are at risk, bearing in mind the Shreve decision?
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Ms Rosemary Brown: First of all, I don't think we have to wait. We're seeing improvement all the time. This is what I'm saying. We are already, in less than a year, beginning to see an improvement in the speeding up of the process. We've gone from 22 months to get a case through the system down to 17 months. I don't believe that suddenly, at the end of two years, we're going to have success. I believe it's incremental, and it's the incremental stages speeding up rather than slowing down. That is the first response.
The second is that the number of cases that actually are going to a board of inquiry are also going down. All of this is a result of increased skills in terms of our staff at the investigation stage, increased skills in terms of our staff in preparing and presenting their cases to commission, and even increased skills from the senior management in terms of their recommendation to commission, and in the training that we as commissioners are giving ourselves, increased skills in the way in which we are also handling the cases. I reiterated the decrease, for example, in the number of cases that would come before senior management and have to be sent back to the regions to have work done on them. That's been reduced from 25% to 5%, I think. That speeds up the process right there.
When I say we give ourselves two years, I said we're being generous with ourselves, because we'd rather set realistic goals and meet them than do it the other way around. I don't think there are cases at risk.
The other thing we have introduced which, as I mentioned before, is having really good results is the pre-hearing conferences. In fact, 57% of the cases that are even referred to board are being settled at the door of the board before they actually go inside. But we've actually had a reduction of cases that go to board from 202 down to 86 now. So it's happening.
Mrs Haslam: Which parts of the commission's process are most prone to delay?
Ms Rosemary Brown: I suspect that the biggest difficulty we're having with delay at this point has to be divided between three or four different parts. We have some problems with the code. We have some problems in terms of the skill level of our staff. We have some problems with the complexity of the issues that are coming before us now; they're not as cut and dried or as clear as they used to be. That is why, instead of focusing on any one area, we're trying to develop a comprehensive approach towards improving the way in which we deal with the cases that come before us.
Mrs Haslam: My colleague has a question along that line, about the increase in complexity and in the number of cases that come in, so I'll reserve my right to ask a few more questions later, and maybe Mr Martin would like to continue on that line of thought.
Mr Tony Martin (Sault Ste Marie): My interest or concern is premised on the fact that when we look at the recent history, there was a reduction, at one point, in the number of outstanding cases, and then all of a sudden it became quite large again. Given the economic difficulties we're in at the moment in the province and the upheaval and turmoil that creates and the competition it creates among people around the right to have a job, get a job, the interview for a job, all those kinds of things that come with a difficult economic time; and given that our government particularly has introduced in the last three and a half years a whole raft of new initiatives that recognize people's human rights in ways they probably have never been recognized before and, naturally, flowing from that comes a request for those rights to be adhered to and upheld and all of that, what impact has that had on your ability to make real change in a time when that is happening?
Given that that is a factor, will what you're doing have a long-term impact once this sort of blip is over -- and will we even get through the blip is another question -- so that in the end we will have a Human Rights Commission that will be able to deal expeditiously with things that come before it?
Ms Rosemary Brown: You're absolutely correct about the increase in inquiries and referrals to the commission. To give you some figures, in 1991-92, there were 117,171 inquiries and referrals that came into our offices; in 1992-93 that went up to 145,031; and this past year, 1993-94, we're dealing with 143,525. So the number of inquiries and referrals has increased; that's absolutely clear.
But the changes we're introducing are changes growing out of the experience of the commission itself. They're coming from inside the commission. It's people working in the commission identifying it and beginning to introduce initiatives that are internal working out, rather than using external consultants to tell us what's wrong with the commission. We who do the work ourselves are finding what needs to be done to change it. All the organizational improvement initiatives take that into account, the increased pressure, and they are designed in a comprehensive way, not to isolate individual problems and focus on them but actually to look at the whole way in which a commission is functioning and doing its work and introducing initiatives that will improve everything the commission does.
This, in the long run, is going to have an impact on the quality and the level of production and the speed with which we deal with our formal cases. It's the best possible way in which to bring about change. We've really taken all these things into account in terms of these initiatives.
Mr Martin: I appreciate that and hope that is what is going to happen. I am confident it will. However, looking at the challenge, the difficulties experienced in a bigger picture, as we move more into the realm of trying to ensure that people in our very mixed community of Ontario -- culture, religion etc -- have their needs met and are able to participate fully so that our economy can take advantage of the tremendous wealth of resource that's out there, are there things that we as a government could do that would make your job easier?
For example, the new Employment Equity Commission has within it the ability to look at cases that will be brought forward that, if it weren't there, would be brought to the Human Rights Commission. In this way, we don't contribute to the bottleneck in the commission at the moment, but deal with cases at a place that is more focused, specific to a particular situation that is probably going to generate some activity because of its nature and what it's attempting to do. That's an example of something we might do that would take the pressure off the Human Rights Commission.
In light of people today looking at trying to rationalize and integrate and have things come through one channel, as opposed to having a number of bodies out there doing the same kind of work, perhaps you could comment on that for me and help me come to terms with what's the right way to be going here.
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Ms Rosemary Brown: We really look forward to working with the Employment Equity Commission once it's up and running to ensure that, working cooperatively with each other, everybody benefits as a result. We certainly look forward to doing that.
The kinds of changes the government would be able to introduce that are non-legislative, that don't need changes in the code, we are already beginning to address ourselves in terms of these organizational changes, because they don't need actual changes in the code.
Other changes would mean the government would have to be willing to open up the code and say, "Are there amendments to the code that would make your job easier?" That invitation has not been extended to us at this time.
Mrs Haslam: Are you suggesting that this be something we look at in concert with what you're doing internally, that we look at a legislative solution also?
Ms Rosemary Brown: I think we have to perceive the code as a living and dynamic instrument. It's not etched in stone. It has to always live up to the changes taking place in our community, and at some point I would hope we could have a dialogue about the ways in which the code can better serve the interests of human rights in the province: not the commission, but the principles of human rights in the province.
Mr Gary Wilson (Kingston and The Islands): Have we got more time, Mr Chair?
The Chair: I think you have had your 10 minutes for the time being. You can save a question for later on.
Mr Frank Miclash (Kenora): Following up on some of the things you were saying in terms of the amendments to the code, what kinds of amendments might you suggest that would improve the case processing time?
Ms Rosemary Brown: We have actually made a list of about four recommendations that we thought would not only speed up the process but actually enhance the delivery of human rights services.
First, presently the code has a demand in it that if a complaint is filed, it has to be examined. The introduction of a "reasonable standard" clause which we could use to assess or determine whether we should proceed with a file would certainly be helpful. We realize this would also call for an appeal mechanism, that if we say we don't want to deal with it, the complainant should have some form of appealing our decision. But right now we have no choice: If you file a complaint, we have to look at it.
The other is that in section 34, where a decision is made about whether to proceed, that's a decision that has to be made by the commissioners. It is possible that the executive director or senior staff of the commission, with the skills and the training, should be in a position to make that kind of decision, again on condition that there is a right of appeal. In each instance there has to be a right of appeal to protect the right of the complainant or the respondent, or both, in terms of those decisions.
Another is that section 33 of the code compels the commissioner to always endeavour to effect a settlement in each complaint. Sometimes it is very clear to the commission that we are dealing with irreconcilable differences and that the issue should be referred to a board of inquiry for adjudication and that we should not spend any more time with this because we're dealing with two immovable forces that are not going to come together. But we have to still go through the process. That takes additional time.
Those are three of the areas we'd certainly like to have some dialogue on.
Mrs Haslam: You mentioned four. What was the fourth?
Ms Rosemary Brown: Three, sorry.
Mr Miclash: I thought I was doing the questioning.
You indicated that your understanding of the role of the Human Rights Commission may not be out in the public as you would like to see it. How is the understanding of your role promoted?
Ms Rosemary Brown: I think it's a mistake to assume that the Human Rights Commission should be solely responsible for the dissemination of human rights around the province. I see us as just one of the institutions or organizations that do that. Human rights should also be the responsibility of the elected members of the House. It should be something that is part of most of the social institutions of the province.
We are just one commission, and our role is to enforce the code as well as to talk about human rights in a way that will support an environment in which the rights of people in the province are protected, but by no means should it be left simply to the Human Rights Commission to do it all.
A component of our work is education. We do have a public education and public policy branch in the commission, and it is now in the process also of being part of the organizational changes taking place in the commission. That job is being done by us, but to leave it to the commission to do it all is really doing a disservice to the people of the province.
Mr Miclash: What kind of funding do you set aside for public education, that kind of thing, in terms of getting that message out from the commission?
Ms Rosemary Brown: I'm going to have to ask the executive director. When it comes to money, he's much better at this than I am.
Mr Scott Campbell: I don't have that data before me, so I can't tell you that. I can get that for you, but I don't have it.
Mr Miclash: I'd be interested in that. I think it's just knowing the role of the commission, and there's sometimes a misunderstanding out there. The cases that have come to me in terms of complaints on delays sometimes have stemmed from that, not really knowing the role the commission would play in any specific incident.
Mr Campbell: As a supplementary to my comment, one of the things we are doing as an organization at this time is looking at ways of delivering public education that are much more cost-efficient and cost-effective than what we did in the past. Let me give you an example.
We have had in the past our human rights officers, who are our most significant resource out in the field, delivering public education to high school students. In the last six months we've developed a public education package for teachers so that the teachers are taught about human rights issues and they in turn teach the students. There's greater leverage in terms of teaching teachers and then having the teachers in turn teach the students, as opposed to us going out and delivering it directly to the students. That's an example of the way the commission is going in terms of public education in the future.
As to your first question, I can get you that answer, but I don't have it before me today.
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Mr Miclash: In the Cornish report we see a model for the enforcement of human rights, and the report makes some recommendations in terms of processing and delays. Do you see more effective ways of dealing with this than what is in the existing system?
Ms Rosemary Brown: All of the changes that we are making are based on our belief that they are more effective than had been done in the past. We looked at the Cornish report and studied it, as we did all the other reports that were done by consultants for the commission, and benefited from some of the recommendations which were non-legislative that were made in that report.
Mr Chairman, I think it was Ms Haslam who asked a question about the case load. Some additional information that was passed to me shows that as a result of streamlining our intake function, the actual number of cases that are being dealt with by the commission is starting to go down. In 1991-92 there were 2,535 such cases; in 1992-93 there were 2,317; in 1993-94 it was down to 2,286; at present we're down to 2,069.
Mrs Haslam: That was the chart I looked at. But there were concerns when we looked at this chart because it indicated that there were still problems of delay. Looking at the number of cases that came in and the ESIs and the percentages, and we have that chart, what we were concerned about was how they were being handled: The questions we have are around what are the causes of delay: Where is the bottleneck? What can you do about the delay? Are some of the things you're putting in place and the goals you've reached -- have they been met, and if they haven't been met, how can you meet them? It's looking at the time lines of how long we wait to see that. To be very blunt, the Ombudsman came in and said -- I wrote down some of her comments -- there are potential problems of delay in waiting for your case management idea to come to fruition.
I believe my colleague has asked about the Cornish report, saying there was a comment: "Further mechanical adjustments: The introduction of streamlining measures or mandatory time frames will not diminish the problem. What is needed is a fundamentally different process." I believe that's what my colleague was alluding to. You've come to us with some suggestions for additional streamlining, looking at skills, looking at the case management plan. What we have to ask is, how do those present initiatives differ and how will they increase your effectiveness? That's taking into consideration your case management plan and the government's September 1991 strategy. Is that the solution?
You're saying that we need another two years to prove that this is working. What we're saying is, can we afford to wait another two years? What if little progress results in the next six months, in the next year? Then we have to take a look at the number of incoming cases increasing again. What is the downside of waiting that amount of time? How many cases are in jeopardy? That's what this committee has to deal with.
Ms Rosemary Brown: No, I'm sorry, I guess there is a real misunderstanding about my presentation. I thought I had been really clear that with these initiatives, some of which have not even been in existence for more than six or eight months, as the case may be, already we are beginning to see signs that we are completely on the right track. We have already surpassed our goal. Our goal for closing of ESIs last year: We were above that. Our goal for closing of formal cases last year: We have not only met our goals to date, and we set our goals at the beginning of each year, but we have surpassed our goals.
I don't think it's realistic or fair, in a matter of 11 months, to expect me as chief commissioner and the commission, which is going through this stage, to have solved a problem which the commission has been living with for a number of years. The changes which we have introduced are not superficial. They are not bandage changes. They are very fundamental changes, basic changes. What we are suggesting is that because they are basic, because they have been generated from the people themselves who are doing the work at the commission rather than from an outside consultant looking at us, the chances of these changes working are better, and we have the proof that they are better.
I want to give you another statistic. We had anticipated that we would have approximately 30 formal cases closed per officer each year. In the last quarter of last year we actually had 50 formal closings per officer; 20 of those were ESIs and 30 were formal cases. Although we've only introduced these changes in a period over 11 months, we are already beginning to see much better results than we had when the commission tried to deal with changes which were recommended by consultants in the past. So we're not concerned about meeting our deadlines. We are going to meet them and surpass them.
Mrs Haslam: Our concern, though, is that the Ombudsman comes and says you met them in your over-three-years-old ones but is that meeting the overall case load delays in years one and two?
Ms Rosemary Brown: Yes, it is, because we have already got indications that the two- to three-year cases are on their way down. We've already done that. They were down from 1992 to 1993, they're down from 1993 to 1994 and we have every indication that this trend will continue. This is not a task force. Every single person working in the commission, including the commissioners themselves, is going to have to do better work. That's what we're saying.
Mrs Haslam: That's fine.
Mr Gary Wilson: Greetings, Rosemary. The last time we had a chance for discussion was at Summerhill at Queen's where you were there to get your honorary degree in recognition of your vast experience and ability in the field of social justice. I'm very pleased that you're in the position that you are now.
Ms Rosemary Brown: Thank you.
Mr Gary Wilson: I just want to follow up to clarify these figures. We have a table here that shows the case load by age group as of March 31, and for two to three years old it does appear that in 1992 it was 341 and in 1993 it was 196, but in 1994 it went to 239, which sounds like a rise. You mightn't have that table in front of you.
Ms Rosemary Brown: We are only three months into the year.
Mr Gary Wilson: Okay. I was interested in the comparative approach, partly again based on your experience, in two ways. You said that the people where you might expect the best changes to be made would be the ones who were actually working in the field, the ones who are a part of the Ontario Human Rights Commission. I was wondering, though, why previous commissioners wouldn't say that and why it appears not to have worked.
Ms Rosemary Brown: I believe that a lot of our collective wisdom is based on the experience of past commissioners, that we've benefited from what they've tried that hasn't worked. We've seen what the consultants' reports have said. We've read and inwardly digested them. We've seen the attempts that have been made to implement some of them, and certainly, spearheaded by our executive director, Scott Campbell, the internal, fundamental changes that are taking place are beginning to have better results. It's like saying that if you really want a nice complexion, you drink a lot of water and you don't put on a lot of makeup. Sorry, you wouldn't understand that. Let me think of another.
Mrs Haslam: I understand.
Ms Rosemary Brown: Okay, thank you.
Mr Gary Wilson: I don't know what that says about my complexion, but anyway.
Looking at the comparative approach, especially based on your experience from other jurisdictions, I was wondering how plugged in you are to what other human rights commissions are doing and whether they're faced with similar problems and whether there's anything you can learn from their experience.
Ms Rosemary Brown: There's this overall umbrella organization, the Canadian Association of Statutory Human Rights Agencies, which once a year brings all the chairs of human rights commissions and senior staff together to exchange ideas. It would be fair to say that Ontario, as the senior human rights commission in Canada, is still the one which is expected to set the tone, to take the risks, to push the boundaries, to set the example. I think it's fair to say that the commission is doing that, and our goal is to see to it that the commission continues to do that.
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Mr Campbell: Just to add to what the chief commissioner has stated, there are other commissions that come to us almost on a weekly basis, certainly on a monthly basis, to talk to us not only about case-specific issues but also about how we as an organization administer our case load. So they're learning from us, and I think they learn more from us than we do from them, if I may say so.
Ms Rosemary Brown: We've had visitors from outside of Canada who've done that. The commission in Bermuda, I think it is, is continually being mentored by us. Just prior to the election in South Africa, we were visited by the Chief Justice, who is going to be responsible for establishing its human rights commission. They looked at our commission and had some meetings with us and with senior staff to get some ideas about the way in which a human rights commission should function. We are seen, even outside the Canadian borders, as a model commission.
Mr Campbell: If I could just go back to talk about what the chief commissioner talked about a few minutes ago, what we did a number of months ago was make a fundamental choice. We could have continued on developing case management strategies only. The case management strategies that were developed in the early 1990s obviously had some effect. There were some positive effects as a result of that. But what we chose to do was go beyond that and look at fundamental organizational change.
Just so the members of the committee are aware, this eight-part change process that the chief commissioner has talked about includes issues such as quality and production assurance. We are talking about quality standards in terms of how you process a case, in terms of production standards, in terms of the number of cases you will produce as an officer; customer service initiatives in terms of how you will deal with our clients; enforcement procedures in terms of the time lines that the chief commissioner has talked about.
There is technology. When I came to the commission, not everyone had a computer on their desk. Now we have a one-to-one relationship for computers, essentially. What we're now doing is developing the capacity of the officers to use that technology to a much greater extent than in the past.
The restructuring of the commission: We had very poor lines of responsibility and accountability in the commission. We've gone from seven directors, as the chief commissioner said in her opening remarks, down to four. That is not just to save dollars, but also to enhance accountability.
Training and development: The chief commissioner talked about a lot of that in her opening remarks. We're putting an awful lot of money into that, because the more money we put into that -- money, time etc -- we feel will advantage us in the long run.
Finally, the last two of the eight-part change initiatives is accountability in terms of accountability requirements. What we're doing there is building right into the system of our organization, which is less than 200 people, specific accountability requirements that every single person has to be held accountable for, whether that is accountability in terms of the number of cases you close or in terms of how you deal with customers etc. That's important in terms of this whole notion of driving it down through the organization.
One of the concerns I had when I joined the organization was that everybody was doing this from the outside. We felt it was much better to do it from the inside and get by in terms of the people in the organization itself.
The last organizational change initiative is regarding anti-racism. We have had a lot of comments about that and we, as an organization, felt it was very important to become a model employer in terms of anti-racist organizational change.
That may give the members a bit more of a picture in terms of exactly the magnitude of this change. It puts in context a bit about what we're doing relative to what other commissions are doing. It is my view that there's no other commission in the country that has embarked on as comprehensive an organizational change agenda as has this commission. It's going to take some time for it to bear fruit fully, but our early returns are very positive.
Mr Gary Wilson: On this comparative approach, you say Ontario's the biggest, but what about, say, per capita, or how do we compare to the others? Has anybody ever done a study about that to see how much the province devotes in money and resources?
Mr Campbell: I don't have those data in terms of expenditure per capita relative to New Brunswick, relative to PEI, relative to Saskatchewan, relative to BC. For the record, our expenditure for 1994-95 is just over $12 million and our budget, excluding task force infusion of funds, has remained basically constant over the last number of years, as the chief commissioner said in her opening remarks. However, our workload in terms of inquiries and referrals obviously has increased, as has the complexity of our work.
Mr Gary Wilson: Would you say that reflects the experience in other organizations? Also, on the difficulty or the problems with case loads, you say people come to talk to you about it, so I assume they've got problems as well.
Mr Campbell: Yes. We've had discussions with the Canadian Human Rights Commission that are very similar to discussions we're having in this room today. What do you do about delay? How are you handling older cases? How are you handling cases that are not formal cases yet, but they're inquiries or referrals etc? The situation is very similar.
Mr Gary Wilson: The chief commissioner mentioned in her remarks the decline in staff turnover, I think it was 14% to 5%, which sounds very encouraging. Of course, the experience of your staff is very important, working out these new arrangements, but also it sounds as though they're pleased with the kinds of changes that are occurring. The accountability they're expected to meet sounds as though that's something they support.
Mr Campbell: There are two points I would make on that. In any organization that's going through change, there are both pluses and minuses. People look at change and say, "Yes, it's a good thing," but they also look at change and say, "Is it going to affect me one way or the other?" and they may become a bit negative about it. Generally speaking, I think the staff of the commission look forward to this change process. They see that as a result of doing what we have done and what we're going to do, we will become a much stronger organization in the end.
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Mr Martin: I want to explore further the question of the bigger picture. You referred a few minutes ago to the wonderful unfolding of life in South Africa these days, and how excited we all are about the fact that finally we are recognizing the rights of a huge group of people. In Ontario, even though we've moved a long distance in the recognition of people's rights and many of us see the recognition of people's rights as contributing in significant ways to the health and wellbeing of the community of Ontario, yet we still run into some tremendous resistance and pockets of real difficulty in this effort.
I see one of the roles of your commission, besides dealing with the individual cases, indicating to us as a government, to the larger community, what it is we need to do as a group of people to come to terms with this question of rights. The role of your commission, and you talked a little bit about it earlier when somebody asked a question, was brought up by the Ombudsman last week: Are you an advocate for the government, are you simply a group that deals with issues that come forward and resolve them, or do you have a role to play in working with government to change the environment within which we operate and do you have a role in the area of public education and that kind of thing.
I refer back, and I did last week, to an instance just recently, where we had an election in Victoria-Haliburton. One of the parties appealed to the lowest common denominator in people -- fear, misunderstanding and all of those kinds of things -- to win a seat. In my mind, it doesn't contribute to the healthy further development of the rights of people and all that. How do we deal with that? Do you have any thoughts, any suggestion for us as a political body in front of that challenge we face?
Ms Rosemary Brown: It would be fair to say that the commission was certainly very clear in its position on this particular issue, because the commission is an advocate for human rights principles and looks at the policy issues, not as an advocate for individuals as such.
Certainly, dealing with the issue of the rights of people not to be discriminated against because of their sexual orientation, that is something the commission has been very clear on. We have a number of cases which went before the board of inquiry and the board of inquiry supported the commission's position. These cases now stand as an example for the government in terms of its legislative program, I would imagine.
The commission has no problem in terms of principles, in terms of articulating principles and in bringing down decisions about whether to refer to a board of inquiry or not issues of discrimination based on the principles that are mandated by the code.
The question of education is also mandated by the code. Part of the job we have to do is to help to create this climate in which all British Columbians -- sorry; all people of Ontario --
Interjection.
Ms Rosemary Brown: Yes, it's the weather, you see, that does this to me.
Mrs Haslam: It's raining.
Ms Rosemary Brown: I look outside and it's raining and I think I'm in Victoria -- in which certainly everyone is treated with dignity and respect. But it's not a job which can be done just by the Human Rights Commission alone. It's a message I think, which has to be articulated by other social institutions, certainly our schools, certainly our legislatures.
This is a particularly difficult issue when you find that some of the really important social institutions that we've relied on for centuries, like the church, to set the example for us and guide us are split on it. When the issues are now really becoming so complex that we can no longer even rely on that, it makes it difficult for the commission too, but it makes your task even more difficult. I'm not going to presume to tell you how to vote on that one, though.
Mr Martin: You don't have to.
Ms Rosemary Brown: Okay.
Mr Martin: I heard from you, and I'm certainly comforted, that the commission has a role and that you're sympathetic to the challenge we confront. Are you in any way comfortable that we are as a community, our province, making progress, or are we stuck someplace?
Ms Rosemary Brown: Certainly, it is a role of the commission to see to it that these issues are not sidestepped or swept under the carpet. When someone files a complaint, the commission has to be courageous in terms of dealing with that. The commission has that commitment and will honour it.
Mr Martin: Thank you. That's all.
The Chair: Thank you very much, Ms Brown. I think we have finished with the questions. We appreciate your presentation and the very open way you've answered the questions of everyone. It has been very acceptable to all of us. We are going to meet again with the Ombudsman next week, when she is going to have a chance to reply to your presentation, and then we'll go from there.
Ms Rosemary Brown: Could I in closing deal very briefly with a one-page list of achievements that I thought would just make it easier because they're itemized on our list of achievements since the beginning of these initiatives?
As a result of the introduction of the quality assurance standards, again the cases which are returned, the files for corrective measures have been reduced from 25% to 5%. This has speeded up the process in terms of dealing with these cases.
Again, because of the production assurance standards, our cases over three years of age have been reduced to 180, and the case load cases between two and three years of age have also been declining.
Some 50% of all of the cases which we deal with are closed within 90 days. That was one statistic you didn't have. We've certainly not only met but surpassed our goal for closings in terms of ESI, with 777 case closings in 1991-92 being increased to 1,177 in 1993-94.
As a result of using section 34 more rigorously, the number of cases that we've applied section 34 to -- that is, not to deal with them -- has gone from 2% of the cases that come before us to 5%. The introduction of the pre-hearing conferences has resulted in a 57% settlement rate for those. The turnover in our staff complement reduced from 14% to 5%, and the age of our formal case load again reduced from 22 months to 20 months and then down to 17 months.
In particular, we want to bring to your attention the average case closings goal that we had per officer, which was 30. In the last quarter of last year, we actually had 50 per officer. So we've had almost a 40% increase there. The 38 cases which were brought to your attention specifically by the Ombudsman have been dealt with. There are no outstanding cases still to be dealt with of those 38 cases.
The Chair: Thank you. There is another question from Ms Haslam.
Mrs Haslam: We're back to case loads and we're back to charts again, and that's what my concern is. If you take a look at cases pending investigation, and that's exactly what our concern is and what the Ombudsman's concern is, cases pending investigation since 1993 up until 1994 have increased on a regular basis. It's month by month. There was a decrease --
Ms Rosemary Brown: Sorry, would you tell me what page you're at?
Mrs Haslam: This is -- have they got a copy of this?
Ms Rosemary Brown: Yes, we have. What page is it?
Mrs Haslam: That cases pending is table 1, cases pending investigation. That's the one concern, that cases pending investigation have actually increased, and it shows that they've increased month by month, except a little blip in February.
The other concern I have is when Mr Wilson was asking you about case load by age group, and you mentioned, "We're only three months into 1994 and we've done so much." But if you go back to case load by age group as of March 31 in your submission, I have two questions. If you go to the cases pending, I'd like to know, how old are some of these cases? What caused the increase in cases pending investigation? Those are the two questions about that.
If you go back to the chart, case load by age group, as of March 31, you said, "We're doing better. Each office is getting more done," and so on and so forth, but take a look at the end of March. Under six months is down, but every other one right down to three years is up. And that's your own statistics. I wondered if there was any explanation for that.
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Ms Rosemary Brown: I think I'm reading the chart wrong, so I'm going to let my staff deal with that.
Mrs Haslam: If your staff would look at the case load by age group -- I think I'm clear on my questions around the pending -- if you look at the age group, in 1994 under six months was down, but seven to nine months the number of cases is up; 10 to 12 months, the number of cases is up; one to two years, it's up by almost 300; in two to three years, it's up.
Ms Rosemary Brown: Okay, we got it.
Mrs Haslam: The only case load age group that went down was over three years, and that's what I was trying to ask you. That went down, but the rest seemed to go up. You said now you're working it all out, right?
Ms Rosemary Brown: That's right.
Mrs Haslam: It doesn't say that in this chart.
Ms Rosemary Brown: I'm going to let Scott answer it but, in a nutshell, the task force cases are all gone. Now we're dealing with this buzz that's going through the belly of the snake, so I'll let him explain that to you.
Mr Campbell: First of all, the data speaks for itself. You're quite correct, Ms Haslam, in interpreting the data. What we did and what we are doing as a staff is concentrating on the cases of three years of age and older. Therefore, you can only put your effort in so many places at one time.
Mrs Haslam: Can I interrupt you, because that is the concern of the Ombudsman.
Mr Campbell: But could I continue?
Mrs Haslam: Okay, go ahead.
Mr Campbell: However, as you can see, that number now at 180 is the lowest it's been for a significant period of time. That's point one. Secondly, as cases age, they become more difficult to deal with. People's memories are not as clear etc. We've done a lot of the difficult stuff now, because of course we now have 180 in that category, we don't have 416, so that's an important point.
Let's put that aside. We've now also, though, introduced a whole series of other changes within the organization which are now beginning to bear fruit, and going back to what the Chief Commissioner said a number of moments ago, we now see in the last quarter of this past fiscal year 50 closings per officer. That's the rate and that's a significant improvement over any previous quarter, certainly since I've been with the commission.
That means that the non-legislative changes that we have put in place, whether they be enforcement procedure changes, whether they be quality assurance changes, have begun to take effect. So we are very confident that this blip, as you refer to it, will be dealt with by these changes. It's not going to happen overnight, but it will happen.
If at some point in time we get to a point where we simply cannot deal with this with the existing resources -- and for the record, the existing resources of the commission, as I said earlier, are about $12 million in terms of the expenditure of the commission and about 180 to 185 staff depending upon fluctuations from month to month.
If at some point in time we come to the point of saying, "Look, we've done as much as we possibly can with the existing resources," and given this organizational change agenda, then we may very well have to come back through our minister to this Legislature to ask for additional resources, but it is our view that right now we want to continue to focus on this change agenda, see how much we can get out of that change agenda. The early indications are very, very good. But we've got to continue on with it.
Mrs Haslam: I have three quick questions, because this is what this committee has to address, the Ombudsman coming and saying -- so my question is, you say that each officer has settled 50 cases. If those 50 cases are only in the over three years because you've concentrated in that area, it really doesn't answer the question of whether, once that three-year task force is done, the same situation will affect the cases that are between one and three years and the question of pending cases growing.
Ms Rosemary Brown: It does, because if they're closing 50 cases each and there are only 180 left, we're talking about four officers. We have 58 officers. Where are they going to find the 50 cases to continue closing for the rest of their worklife? It's going to come from those two- to three-years cases.
Mrs Haslam: So you're working your way back.
Ms Rosemary Brown: That's right, which is the reason why we're beginning to see a decline in those two- to three-years cases. It's just beginning to kick in. You can't judge what's going to happen because it's just beginning to kick in. We need more time.
Mrs Haslam: Why are the cases pending increased?
Ms Rosemary Brown: Increased from when? The 180-case figure we gave you is just from March 31, so those officers are now going to be able to deal with other cases because they no longer have 412, 415, 416 cases to deal with; it's 180. When they're through those 180, what do they do? They start moving into the three years old and into the two years old. What we need to look at is our openings, not those.
Mrs Haslam: So you see cases pending on a downward trend?
Ms Rosemary Brown: They have to be. That is our goal. They have to be. Give us time. It's going to happen, or else.
Mr Campbell: The answer is yes, we see it as going on a downward trend.
The Chair: Thank you very much.
Members, we are going to meet next Wednesday to hear the Ombudsman's response to Ms Brown's presentation, but also we have to start dealing with the family support plan. I would suggest starting at 9 am rather than 10 so we'll be able to finish on Wednesday, for the briefing of counsel of course. At 9 am we start for the briefing of counsel and at 10 the Ombudsman is going to be here and then we proceed with the actual case.
Mr Martin: At 9 am we're doing what?
The Chair: Briefing from the counsel on the family support plan, at 10 the Ombudsman is going to be here and then we continue with the case. Do you all agree?
Mr Gary Wilson: Is Paul the counsel for that? Are you doing the family support plan?
Mr Paul Murray: Yes. What we're going to be doing is we'll meet at 9 o'clock. I'll brief the committee on one of the other two cases that were in the Ombudsman's special report from July 1993, which concerns the family support plan. I'll brief the committee from 9 till 10; from 10 till 10:30 the Ombudsman will be back to respond on the issue of delay at the Ontario Human Rights Commission; from 10:30 to 12 we'll deal with the family support plan case. That's the schedule. You should have materials on the family support plan case. If you don't, contact either the clerk or myself to obtain them.
Mrs Haslam: When was the material on the family support plan sent out?
Clerk of the Committee (Mr Todd Decker): Recently.
The Chair: Very good. The meeting is adjourned.
The committee adjourned at 1148.