On December 20, 2006 the
Ontario Human Rights Code Amendment Act, 2006
The key provisions of that legislation, however, still have yet to be proclaimed in effect.
Since I have now received several calls regarding what the changes will engender, I thought it would be best to give a quick summary on the blog.
Perhaps the largest change that will come about is the dramatic reduction in delays in dealing with human rights complaints. Or that’s the hope. The delays have become systematic and the entire process has been bogged down. The current regime generally provided for a complaint to be made, a response made to the complaint, then a mediation would be scheduled. If a settlement could not be reached at the mediation, then an investigation would occur and if there was sufficient reason to proceed to a tribunal hearing, a hearing was held. All along the way, though, there were various procedural steps which could delay matters further. I recently attended a mediation at the Human Rights Commission for a complaint which was, by the time of the mediation, almost two years old. Needless to say, if it is taking years before a mediation is heard, it is taking just as long to deal with investigations and appearances before the Tribunal.
It was this incredible backlog that spurred the government to introduce the new legislation. The changes to the system permit complaints to be made directly to the Tribunal and to allow the Tribunal to handle the matter directly (thereby cutting out the “middlemen” of the mediation and the investigation stages). This is a double-edged sword. On the one hand, businesses will benefit from the fact that they can dispose of unmeritorious claims without having to deal with lengthy delays. On the other hand, though, unmeritorious and “borderline” cases used to be either not presented or abandoned when the complainant realized how long it would take to go through the system. That check on unmeritorious complaints will now be removed, so businesses may face complaints that they would not have otherwise had to deal with under the old system.
Another difficulty that will be seen, at least in the near future, will be an outrageous backlog at the Commission while the transition is made from the old system to the new system. At my last mediation, the mediator (a Commission employee) said that the new regime with its “direct access” model will create problems with the many complaints currently backed up in the system. There will be, in the short term at least, a flood of matters headed to the Human Rights Tribunal. While I understand that the Tribunal is currently looking at appointments of new members, even if there is a large increase to the size of the Tribunal, there will still be at least some short term delays. The amount of the delays, may, however, be lessened, by the direct civil remedies available (and discussed in the final point below).
A second change has been the removal of the compensation cap that used to exist for Tribunal awards. The old Section 41 provided that the Tribunal could award compensation for discrimination but that compensation for mental anguish was capped at $10,000. In reviewing this section, the Tribunal had concluded in several cases that if mental anguish awards were capped at $10,000, then so should awards for any other suffering due to discriminatory practices. As a result, awards by the Tribunal rarely exceeded $10,000. Under the new legislation, the award cap is gone and it will be interesting to see if the Tribunal starts to assert its newfound freedom and businesses may well face significant awards if they run afoul of the Human Rights Code.
A third change is the removal of the right of an appeal from Tribunal decisions. Previously, if either party did not like the outcome of a Tribunal decision, it could appeal to the
Ontario Divisional Court
. Under the new legislation, all Tribunal decisions will be final (unless decisions are found to be “patently unreasonable” – a test which is basically the equivalent of saying that the Tribunal was comprised of complete morons who were drunk and didn’t listen to a word of the evidence (all of which went against the decision made) and anything less than that will not be overruled by a court – Okay, perhaps I’m stretching it a bit, but not much, it’s a really high test to meet). I have serious concerns about this new provision given that the test for overturning a Tribunal’s decision will be so high, but I will wait to see how the Tribunal actually acts before I decry the situation. Of some help, possibly, is the fact that a request can be made to the Tribunal to reconsider its decision.
A fourth change relates to the timing of complaints. Under the old regime, while there was technically no restriction on the amount of time before a complaint could be filed, the Commission generally took the position that complaints had to be filed within six months of the incident (or if a series of incidents since the last incident) that give rise to the complaint. Under the new regime, the legislation expressly permits claims up to one year after the incident (or last incident). But the legislation goes further and permits the Tribunal to receive complaints even later if it finds that there are circumstances which justify the delay and if no prejudice would be suffered by the other party. Thus, the general guideline used previously by the Commission has now been doubled (at the least).
The fifth, and perhaps the most significant, change that I wish to highlight is the new Section 46.1. Previously, a debate raged in the courts over whether claims could be made in civil lawsuits (primarily wrongful dismissal cases) for violations of the Human Rights Code. The prevailing view has been that such claims should be made only in complaints to the Human Rights Commission with the result that often businesses either faced two proceedings (a civil lawsuit and a human rights complaint) or the business was lucky and only faced the civil lawsuit. The new Section 46.1 permits claims for violations of the Code to be asserted in civil lawsuits. Businesses should brace themselves for a wave of human rights claims that will be now asserted in wrongful dismissal claims. This will likely increase the amounts having to be paid in settlements and making the prospects of settling more difficult. For truly meritorious claims, this does not bother me. However, I can easily foresee two problems arising in the future. The first problem is that unmeritorious claims will be asserted and even if they are settled on a nuisance basis (say, for a few thousand dollars), this will result in higher settlement amounts having to be paid by businesses. The second problem is that plaintiffs who previously had borderline or worse claims for wrongful dismissal will now pursue them by adding claims for human rights violations. The result will be that a claim that otherwise would not have been pursued at all will be pursued and, again, settled on at least a nuisance basis. The cost to businesses could prove to be quite large. While I hope that this does not occur, it could quite easily come to pass – especially if the courts decide to grant large awards for human rights violations, in which case everyone will head to court rather than going to the Tribunal, which, in turn, might cause the Tribunal to start granting larger awards for violations to keep in line with what the courts are awarding. We could be at the thin edge of what proves to be a very large wedge.
The key provisions have yet to be proclaimed into force. Given that this legislation proceeded through the legislature very quickly, it has been controversial. With an election scheduled this Fall, I expect that either the government will have the legislation quietly proclaimed into force over the Summer when everyone is too busy thinking about vacations or else they will wait and if they are re-elected, they will have it proclaimed immediately after the election. Conversely, if the Conservatives win the election, it will be interesting to see if they tinker with the legislation or leave it and “blame the Liberals” for any mess created by the legislation. Either way, the landscape for human rights complaints is going to change and it should prove interesting, to say the least.