Signs of change

Signs of change
When clients come to Toronto employment lawyer Matthew Dewar with human rights complaints, the first thing he is apt to say is: “I hope you’ve got some time on your hands.”

It remains to be seen whether Dewar, an associate at Lang Michener LLP, will still need to warn clients about excessive delays now that Ontario has introduced a newly streamlined system that promises to provide a quicker, fairer, and more accessible way of handling human rights cases. He is not holding his breath, however, as the new Human Rights Tribunal of Ontario has inherited a backlog of about 4,000 cases from the notoriously dysfunctional system that it has replaced.

Under the old system, which was similar to that of the federal government and most other provinces, the Ontario Human Rights Commission played several roles. As a gatekeeper, it determined which complaints merited further investigation. It investigated complaints and attempted to mediate them. If complaints were considered substantial enough and not resolved through mediation, the commission would present them to a separate body, the Human Rights Tribunal, which would schedule a hearing, sometimes years after the original complaint was lodged.

Some lawyers are excited. Others are skeptical. But there is no doubt among labour and employment lawyers across Canada about the huge potential impact of Ontario’s massive human rights system overhaul, which came into effect in July. The new system is designed to provide complainants with “direct access” to the tribunal, eliminating the gatekeeping and investigatory role of the commission. Complainants can get help from a new body, the Human Rights Legal Support Centre, which will be responsible for a province-wide system to provide legal and other support services related to all aspects of applications to the tribunal. Operating under a new set of rules, the tribunal promises to promote speedy resolution of cases through mediation and an expedited hearings process.

A major difference between the new Ontario system and that of British Columbia, which has also moved to a direct-access process, is that Ontario did not abolish its Human Rights Commission, but has given it an expanded role in promoting human rights in the province. “This model will be quite unique,” says Matthew Certosimo, a partner at Borden Ladner Gervais LLP. “So how things shake out in Ontario over the next little while will be important and watched by other jurisdictions.”

So what do these changes involve? Why are they so significant? And what do they mean for lawyers practising in one of the many areas that touch upon human rights? The answers are many and diverse. They involve huge social trends, important changes in the law, and perhaps significant adjustments to the way lawyers approach to human rights-related cases.

Never before has there been so much interest in and concern over individual rights and the responsibilities of employers and other organizations to accommodate these rights. Whereas human rights concerns used to focus mainly on discrimination or harassment, society now expects a more proactive approach to accommodating disability and embracing diversity. Complaints are becoming more varied and complex in an increasingly multicultural and diverse society. New issues are emerging, particularly in labour and employment law, in light of trends such as an aging workforce, the abolition of mandatory retirement, an epidemic of chronic disease, and a growing understanding of mental illness, alcoholism, and drug addiction.

These issues are coming to the fore in complicated and contentious cases. The freedom of the press or — looking at it from another perspective — the freedom to demonize certain religious groups has been scrutinized by the Human Rights Tribunal in B.C. Alberta courts and tribunals have been struggling with the competing requirements for occupational safety and accommodation of people with disabilities in a case that tended to trivialize the issues with a focus on the claim of a marijuana user that he shouldn’t have to take a drug test to do construction work on an oil sands project. The Supreme Court of Canada recently erased a huge punitive damage award for human rights violations in a civil court wrongful dismissal case involving a Honda Canada employee suffering from chronic fatigue syndrome.

Cases that involve drugs or mental illness may involve a large number of expert witnesses and conflicting evidence on diagnosis or prognosis, concerns about inappropriate or erratic behaviour, and whether disabilities can be accommodated without undue hardship, notes David Corry, a Calgary-based partner at Gowling Lafleur Henderson LLP. The complexity of these issues, he says, “is potentially driving the need to re-evaluate the system to make sure it’s the most effective system for advancing human rights in Canada.”

It’s the best of times for lawyers specializing in human rights. As Calgary-based Stikeman Elliott LLP partner Barbara Johnston puts it: “Human rights is one of the most exciting areas of law right now. The changes in the law and the interesting issues that we’re faced with are unparalleled. We’re dealing with groundbreaking cases with a very profound impact on society. I don’t think I’ve gone a day in my practice where there hasn’t been something new and exciting.”

But it could also be the worst of times for complainants and respondents mired in tortuously slow human rights processes, designed at a time when the issues seemed less complicated and now overburdened by the complexity and sheer volume of cases.

Look at the flow chart of Alberta’s Human Rights and Citizenship Commission’s complaint process (see page 58)and you may wonder why anyone bothers to launch a complaint. Laid out like a highly schematized and very dull snakes and ladders board, the flow chart details 20 different steps or potential outcomes a complaint could have as the commission plays out its multiple roles of gatekeeper, investigator, conciliator, and decision-maker.

And the final step, once all other possibilities have been exhausted, is to refer the case to a separate Human Rights Tribunal for a hearing — a move that must seem to some like “return to ‘Go’ and do not collect $200.”

Not only do many human rights and employment lawyers complain that processes such as this are too slow, many also see them as patently unfair. In principle, the commission is meant to represent the public interest in investigating complaints, weeding out frivolous ones, resolving others, and referring intractable ones for a quasi-judicial hearing. Critics of the new Ontario process and that of British Columbia say the old system can provide better protection to disenfranchised groups or individuals who can’t afford legal representation. But the counter-argument is that commissions may often make arbitrary decisions in refusing to proceed with certain cases. In the eyes of respondents and their lawyers, commissions often tend to blur the distinction between investigator and prosecutor.

Corry bristles with indignation as he recalls the case of a bus driver who became disabled and lost the job he had held for 25 years, ended up collecting pop bottles to supplement his welfare income, then died before his widow finally benefited from the settlement of his human rights and wrongful dismissal claims, five years after they were first launched. “It was a shocking case — a travesty of justice,” says Corry, offering it as an example of both the slow pace and unfairness of the Alberta human rights system. As is often the case in contentious human rights issues, the circumstances were complicated. The employer had relieved the man of his duties and put him on disability pay because of a condition that could result in sudden fainting fits — a condition obviously not conducive to driving a bus. While he was on disability pay, the man continued to work at a part-time job he had held for a long time, supervising the cleaning of community centres — a task he could easily perform in spite of his illness. But the employer determined this was a violation of disability leave policies, cut off his benefits, and fired him. Corry launched a wrongful dismissal claim as well as a human rights complaint. “To my disappointment, the Human Rights Commission stayed the human rights complaint and didn’t do anything to further the investigation the entire time. And it never did get resolved through the human rights process,” he says.

This happened a few years ago and the process is “not quite as bad” now as it was then, says Corry. “But the delays are still extraordinary,” he adds. The vast majority of cases that come before the commission are now settled, he says. “To an outsider, that might seem like a good thing. But I believe that a great number of cases are settled because the complainants become frustrated with the process.”

The new system in British Columbia, introduced in 2003, has received mixed reviews. Various human rights groups have argued there is not enough support for the poor or disenfranchised complainants who used to rely on the commission to advance their cases. The same groups lament the loss of the proactive role the commission played in advocating for human rights issues and opposing systemic abuse. The Ontario reforms have attempted to address both these issues by providing complainants with legal support and retaining the commission’s broader role.

Vancouver-based employment lawyer Geoffrey Litherland, a partner at Harris & Co., gives the reforms a qualified endorsement. “The effect is that human rights complaints tend to proceed somewhat faster. There’s still a backlog. There’s still a considerable waiting time for a hearing and there can be a waiting time for getting an ultimate decision. But, generally speaking, complaints proceed quicker through the system,” he says. “Also the tribunal is putting a lot of emphasis on trying to settle the complaints at an early stage, so they offer out settlement conferences to the parties with a tribunal mediator to assist the parties to try to resolve the complaints early on. I think those efforts are working. People are taking advantage of those prior to the hearing stage.”

Ontario’s amendments to its Human Rights Code are far-reaching because they not only transform the process for dealing with complaints, but also affect outcomes and remedies, according to BLG’s Certosimo. “Labour and employment lawyers are going to have to ensure that they are very much on top of the impact of the changes,” he says.

One obvious and significant change is that the new legislation has made human rights claims potentially more lucrative for claimants and more damaging for respondents. Until now there was a $10,000 cap on damages that the Human Rights Tribunal could award for mental anguish, but this has been eliminated. “The awards are going to get much bigger and that’s not such good news for employers,” says Dewar.

It will also be more difficult to challenge the decisions of the provincially appointed tribunal members. In the past, there was a right of appeal to Divisional Court. Now the decisions will be subject to judicial review only if it can be shown that they are patently unreasonable.

Another important change in the legislation is that it gives civil courts a clear power to award damages where a human rights issue arises in the context of another claim. This has been a contentious issue recently, particularly in labour and employment law. As Corry explains it, under common law, it is necessary to prove “a separate actionable wrong” in order to get a punitive damage award in a wrongful dismissal suit. Lawyers have argued in recent cases that human rights code violations constitute separate actionable wrongs and are therefore grounds for punitive damages. While the new law in Ontario apparently accepts this notion, employment lawyers in the rest of the country were anxiously awaiting last month’s Supreme Court of Canada’s decision in the  Honda Canada Inc. v. Keays wrongful dismissal case (see full story on page 60), where the trial judge made a record high award of $500,000 (reduced to $100,000 by the Ontario Court of Appeal and completely erased by the SCC) for a violation of the human rights code in failing to accommodate the autoworker’s disability.

Ontario’s new human rights process puts lawyers on firmer ground, according to Certosimo. It will be more adversarial, with the commission no longer playing the same multiple roles as gatekeeper, investigator, and advocate. “Now we can rely upon procedural rules and established steps and processes, whereas in the old system many of us thought the process and rules of the game were unclear, often in a state of flux, often in the process of being established. That uncertainty made it much more difficult to do your job,” he says.

Mary Cornish, senior partner at Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, says the new system will allow for quick and early resolution of many complaints. Some cases may involve misunderstandings or other easily resolved issues that could be cleared up through a quick intervention by the Legal Support Centre, in much the same way the commission resolved such issues in the past, but with the crucial difference that the complainant knows the support centre staff members are on his or her side. Other cases may be resolved through mediation. For matters that proceed to hearings, there are procedural rules designed to expedite the process.

Cornish, who has long specialized in human rights issues and chaired a task force on Ontario’s human rights system in the 1990s, says some lawyers may find it challenging to adapt to the tribunal’s procedural rules. Under the old system, she says, proceedings were often dominated by procedural objections on the part of respondents’ counsel. The new process gives the tribunal more control over the process, allowing the adjudicator to say what evidence or arguments he or she wants to hear first, forcing the parties to get to the merits of the case more quickly.

One of the tribunal’s rules asks that an organization against whom a complaint has been filed provide details of its human rights policies. This, says Cornish, will give employers and other organizations a further incentive to develop policies and procedures before they ever find themselves facing a human rights complaint. “This is what we want them to do, not engage in long proceedings and then develop a policy,” she says. “We have to advise our clients so they don’t get into this trouble. So part of the power of the system is in transforming the conduct. That’s where you have to keep your eye on the ball, which is the objective that discrimination not take place.”

Promoting equality and reducing discrimination is the fundamental objective of the Human Rights Code, and, in this regard, the Human Rights Commission has a powerful and important role to play, says Cornish. Far from being abolished or emasculated, as many critics have implied, the commission has in fact been strengthened and given a renewed focus, she says. “I think this system will transform how people relate to human rights.”

Others are hopeful that the new system will be fairer and more efficient, but don’t exude the same degree of confidence. “Yes, we know that it’s a new era,” says Patty Murray, a partner at Hicks Morley Hamilton Stewart Storie LLP. “We know for certain it will be different. As to whether it will be better or worse, I think the jury is still out on that.”

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