by Brian Smeenk
On June 30, 2008, new human rights legislation in Ontario came into force. The new regime radically changes the way in which human rights complaints are dealt with in Ontario. Employers, employees, and unions are watching closely to see how well the new system works.
1. Complainants given direct access to tribunal
Prior to June 30, 2008, complaints in Ontario were made to the Human Rights Commission. From there, the Commission mediated and investigated complaints. At the end of that process, which took four to five years in many cases, the Commission could dismiss a complaint or send it to the Human Rights Tribunal of Ontario for a full hearing.
Now, complainants file their complaints directly with the Tribunal, cutting out the often lengthy Commission processes. Although the Tribunal will have some powers to mediate disputes, the plan is for vice chairs to adjudicate complaints much earlier in the process. However, the Tribunal is not permitted to dismiss a complaint without giving all parties the opportunity to make oral submissions. This may be a real barrier to an effective mediation process. It therefore remains to be seen whether the length of time it takes to resolve complaints will be shortened.
2. Commission’s role changed drastically
As it will no longer be processing complaints, the role of the Commission will change radically.Â Indeed, we know that many of the Commission’s staff have already been or will soon be terminated.
Those staff left at the Commission will focus their efforts on the prevention of discrimination, through public education, promotion and public advocacy, research, and analysis.
While the Commission will have the ability to bring a complaint to the Tribunal on its own behalf or to intervene in significant individual complaints, its involvement in complaints being heard by the Tribunal will be drastically reduced.
3. Limits on damages removed
Not only will complainants have more direct access to the Tribunal in the new regime, they will also have the potential ability to recover more money.
Prior to June, complainants were limited to $10,000 for damages for mental anguish.Â That cap is no longer in place, meaning the Tribunal will have the power to award more money on account of mental anguish. Similarly, the Tribunal’s power to award damages for compensation and restitution are unlimited.
Together, these expanded powers to give monetary awards likely means that damage awards in human rights cases will increase. So with more to gain by going to a Tribunal hearing, complainants may be less likely to settle complaints early.
4. Complainants given longer to launch complaints
If the potential for more hearings and larger damages awards isn’t bad enough for employers, complainants also now have a longer time in which to file complaints. Bill 107 has changed the limitation period for filing complaints from six months to one year.
As mentioned earlier, the Tribunal may not dismiss a complaint without giving the parties the opportunity to make oral submissions. Respondents will now be forced to pay for at least some degree of litigation cost before a complaint, even a frivolous one, is dismissed.
5. Human Rights Legal Support Centre given funding
Under the old regime, once complaints were referred to the Tribunal, a lawyer from the Commission was appointed to “prosecute” the complaint.Â Although the Commission lawyers weren’t technically the complainants’ lawyers, practically that was the result.
Under the new regime, Commission lawyers will not be responsible for prosecuting complaints. Some saw this as an access to justice problem. In response, the government created and funded a Human Rights Legal Support Centre, which will provide a range of legal support services to complainants.
The Human Rights Legal Support Centre opened its doors on June 30, 2008. We understand that it employs a staff of between 40 and 50 lawyers and law clerks. It is unclear how much legal support these lawyers and law clerks will be able to provide to the 2,500 or more applicants that make human rights complaints each year. However, it is clear that many complaints against employers will still be publicly funded. And more of these than ever will end up in hearings.
6. Human rights issues in civil litigation
Until now, individuals were expected to restrict their human rights complaints to making a complaint at the Commission, rather than suing in court for breach of their human rights.Â There was little scope to add a human rights issue to another lawsuit. Now, however, someone starting a lawsuit in Ontario can claim, in addition to other claims, a breach of their human rights. For example, an employee fired from work can now bring a lawsuit claiming damages for being wrongfully dismissed and additional damages for an alleged breach by his employer of his human rights.
Why is this significant? Because now judges have the ability to award all of the human rights damages and remedies, including damages for mental anguish (which, as discussed earlier, has no cap) and reinstatement. Although the courts have historically stayed away from reinstating terminated employees, it is now a possibility. We will have to wait and see how judges deal with these increased powers. At a minimum, you can expect to see more human rights allegations in employment-related lawsuits.
What employers should do
Given these changes, you may wish to take the opportunity to review and update existing human rights practices and policies and to implement preventive measures.Â Obviously, the best way to avoid the negative consequences of these changes to the human rights regime will be to keep any workplace issues from becoming human rights complaints. Employers may also want to ensure that you have a “quick response plan” in place with your legal advisers to deal with complaints when they are received.
Brian Smeenk is a Toronto partner in the Fasken's Labour, Employment & Human Rights Group. He is also editor-in-chief of Northern Exposure and a member of the Employers Counsel Network. Since 1981, Brian's practice has focused on management-side labour and employment law. He represents both private sector and public sector employers, including many multi-national companies, in all aspects of labour relations and employment law and appears before tribunals and courts at all levels.