425 Bloor Street East, Suite 110

Toronto, Ontario M4W 3R5

(416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free)

(416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free)

(416) 482-2981 (FAX) 1 (866) 881-ARCF (2723) Toll Free)

VIA ELECTRONIC MAIL ()

March 1, 2012

Andrew Pinto, Chair
Ontario Human Rights Review
393 University Avenue, Suite 2000
Toronto, Ontario, Canada M5G 1E6

RE: Written Submissions of ARCH Disability Law Centre - Ontario Human Rights Review

ARCH makes this submission to the Review of Ontario’s Human Rights System. The format of our submission does not address in turn each of the issues raised by the Review’s Consultation Paper. Instead, this submission focuses on those selected issues that are important to Applicants with disabilities.

As we did in 2006, ARCH supports the spirit of the amendments to Ontario’s Human Rights Code. We imagine a system that is fully accessible to all persons with disabilities and includes:

  1. direct access to an expert tribunal, with flexible procedures and streamlined access to accommodation;
  2. a specialized agency, adequately funded to provide representation to all Applicants, seamlessly throughout the Tribunal process; and
  3. a proactive Commission with a guaranteed allocation of sufficient resources, expert at preventing and redressing systemic discrimination, including that experienced by persons with disabilities.

In short, ARCH supports the continued development of Ontario’s three human rights agencies, the Human Rights Tribunal of Ontario (“HRTO”), the Human Rights Legal Support Centre (“HRLSC”) and the Ontario Human Rights Commission (“OHRC”). ARCH remains committed to working with each of the three agencies in order to improve the new system, rather than undermining it.

We make three general submissions:

  1. describe ARCH and our consultation process in the preparation of this submission;
  2. survey the experiences of persons with disabilities before the HRTO, HRLSC and the OHRC;
  3. offer concrete opportunities to improve Ontario’s human rights system, building on the positive steps already taken.

I. ABOUT ARCH AND OUR EXPERIENCE WITH THE HUMAN RIGHTS SYSTEM

The Human Rights Review is of particular importance for persons with disabilities: “Disability” continues to be the leading ground of discrimination cited in human rights applications in Ontario. According to the HRTO’s 2009-2010 Annual Report,52.2% of the Applications filed in 2009-2010 raised the ground of disability.[1]

ARCH is a community legal clinic primarily funded by Legal Aid Ontario that is dedicated to defending and advancing the equality rights of persons with disabilities, regardless of the nature of their disability. ARCH has a province-wide mandate.

ARCH offers a province-wide telephone-based summary legal advice and referral service. We receive many calls about provincial human rights matters. In 2011, we received 192 calls about provincial human rights issues, representing about 20% of our total number of calls. A large percentage of our calls about provincial human rights involve questions about the accommodation of persons with mental health issues, including at work or in the provision of services.

ARCH represents national and provincial disability organizations and individuals in litigation at all levels of tribunals and courts, including at the Human Rights Tribunal of Ontario. ARCH has represented or is currently representing individuals and disability organizations in a number of cases before the HRTO which raise important human rights issues in the contexts of education, municipal by-laws, employment, police services and the provision of government services

In addition, we also assist persons before the HRTO on a limited retainer basis (i.e. assisting with the drafting of Applications, representation at mediations, assisting with the negotiation of settlements). We provide service to unrepresented Applicants with disabilities, including:

  • assisting Applicants before the HRTO who have difficulties keeping up with the procedural demands of the HRTO, including understanding interim orders and their disclosure obligations;
  • assisting Applicants to file their own a Reconsideration Request of a final decision by the HRTO; and
  • assisting Applicants to better understand the mediation process and the possible outcomes.

We also intervene in test cases with broad impact on the interpretation of human rights statutes including Tranchemontagne v Ontario[2], Moore v British Columbia[3], Yuill v CUPE[4] and Barber v. South East Community Care Access Centre[5].

We also work with lawyers from the private bar and other community legal clinics. Often those consultations address the question of how to raise human rights arguments in other administrative fora including before the Social Benefits Tribunal and the Landlord Tenant Board.

We also provide education to the public on disability rights, and often on human rights. During 2011, we delivered about 15 presentations about human rights to persons with disabilities and also to lawyers.

Finally, we make submissions to government on matters of law reform, including human rights. For instance, we participated in the OHRC’s Mental Health Strategy consultation. We have also made submissions to the HRTO on its draft Policy on Accessibility and Accommodation[6]and its draft Rules of Procedure[7].

I.i ARCH’s position in the Debate Around Bill 107

During debate around Bill 107, ARCH concluded that the previous system was seriously flawed and could not adequately address the experience of discrimination by persons with disabilities.[8] ARCH supported the principle of a system where complainants would have direct access to a hearing of their complaint. ARCH supported the direct access model with a number of provisos, including that there be adequate funding to each of the three Agencies. In particular, we relied on the Province’s promises that all Applicants would have access to free, publicly-funded legal representation, seamlessly throughout the Tribunal process.

II.ii ARCH’s Consultation Process in the Preparation of this Submission

In the development of ARCH’s proposals, we interviewed some of our community partners, stakeholder organizations and individuals in the disability community, including from the diverse communities of persons with disabilities that we serve.

As a team at ARCH, we also reflected on our experiences with the current human rights system in Ontario.

We also surveyed our calls to our province-wide telephone-based summary advice and referral line. In that way, our submission is based not only on the observations and knowledge of ARCH staff, but also on examples of barriers, obstacles and needs for accommodation that were brought to our attention through ARCH’s telephone-based summary advice and referral service.

II. EXPERIENCES OF PERSONS WITH DISABILITIES SINCE Bill 107

This section surveys the experience of persons with disabilities within Ontario’s human rights system. It pays particular attention to the experience of potential Applicants, who because of their disability-related needs, do not file an Application or seek the assistance of the HRLSC or the OHRC. This might lead to an “invisible caseload” of people subject to discrimination who have not been able to access or are unwilling to access supports of the three Agencies. This Review must not only focus on the barriers facing Applicants but must also address the situation of people who do not choose not to or can not file an Application.

II.i Improvements since Bill 107

Since the introduction of Bill 107, ARCH has witnessed improvements to the human rights system. To us, the new system is more effective and more efficient than the system that existed prior to Bill 107.

The Human Rights System is Reaching More People

In 2009-2010, the HRTO received 3,551 new Applications.[9] The HRTO’s active caseload has grown.[10] Before Bill 107, the OHRC received 2399 complaints in 2005-2006. In that year, only 143 complaints were referred to the HRTO by the OHRC.[11]

Applicants are Getting to Mediation and Hearings More Quickly

It is our experience that half-day mediations are being scheduled within months. It is also our experience that people are getting to HRTO hearings more quickly, which is a clear improvement on the system before Bill 107, where complainants with disabilities were literally “dying out” of the process.[12]

More Effective Mediations and Mediators

Our experience with HRTO mediations has been largely positive. It is an important component of the revised tribunal system that mediations are heard by Vice Chairs or members with expertise in human rights.[13] We have found that the mediators understand disability issues and are attentive to the needs of people with disabilities.

Availability of Public Interest Remedies at Settlement and at Hearings

Most mediations and HRTO decisions result in public interest remedies. The HLRSC reports that 70% of successful decisions before the HRTO and about 75% of settlements achieved a public interest remedy.[14] Section 45.2(2)(b) of the Code now permits the HRTO to consider public interest remedies even if no party seeks public interest remedies.

It is our experience that parties with disabilities will not settle an application before the HRTO without making sure that their experience will not be repeated. We find that persons with disabilities do turn their attention to the broader impact and insist on public interest remedies.

More Effective Partnerships

There has been effective collaboration between ARCH and each of the three Agencies. We have found that each of the three Agencies has been responsive to the needs of the communities of persons with disabilities.

  • The HRTO has been responsive to ARCH’s calls to undertake reform to the way that it addresses the capacity of parties before it, ensuring access to a group of Applicants who have never had access to the system.
  • The HRLSC frequently collaborates with the ARCH, sharing its expertise to develop litigation strategies.
  • The OHRC has undertaken coordinated efforts to reach out to and consult with the communities of persons with disabilities, including persons with mental health issues in the development of its Mental Health Strategy.

Nevertheless, we have not found that there has been effective coordination between each of the agencies. ARCH urges the Review to recognize that Ontario’s human rights system would be more effective if the three Agencies worked in collaboration. There appears to be confusion about the “jurisdiction” of each of the three Agencies including with respect to community outreach, enforcement, tracking settlements.

II.ii Barriers for Persons with Disabilities at the HRTO, HRLSC and OHRC

With respect to all agencies, we have received reports that persons with disabilities experience barriers accessing web-based resources, including of the HRTO, HRLSC and OHRC. Many of ARCH’s low income clients can not access the internet. The overreliance on web-based technologies (including online learning) poses a significant barrier to low-income persons with disabilities.

Also with respect to all agencies, we have received reports of problems accessing the three agencies outside of the Greater Toronto Area. Only 6% of those applications filed with the HRTO in 2009-2010 came from the Northern area of Ontario.[15] About 13% of callers to the HRLSC were from the North.[16] In particular, persons with disabilities outside of the GTA experience difficulty accessing accommodations including in-person meetings (as opposed to telephone service) necessary because of disability-related needs.

We have also received reports of difficulty accessing each of the HRTO, HRLSC and OHRC. ARCH would be pleased to work with three Agencies to develop comprehensive and clear solutions to barriers experienced by Applicants with disabilities.

With respect to accessing the HRTO:

  • ARCH has received reports that the HRTO’s Application forms and other forms are not in clear language, which bar potential Applications from many people including people with intellectual disabilities.
  • ARCH has also received reports that the HRTO forms are not accessible to low vision or Blind Applicants or potential Applicants.
  • The HRTO’s procedural decisions are largely inaccessible to persons with disabilities. Of the 1,740 decisions issued by the HRTO in 2009-2010, only 75 were final decisions.[17] Before Bill 107, the HRTO issued about 15 final decisions between 2005 and 2006.[18]
  • Those procedural decisions often involve complex, legalistic arguments raised by Respondents. Applicants who are unrepresented (including Applicants with disabilities) must face alone the challenges created by formal and complex procedural rules and practices.
  • We have received reports that some HRTO adjudicators are less flexible than others throughout the hearing process, including when it considers how to accommodate parties with disabilities. For instance, the HRTO has set a heavy onus on Applicants to provide a reasonable explanation for missed deadlines.[19] However, persons with disabilities may require extension or relaxation of limitation periods.[20]
  • We have received reports that the Reconsideration process is unsatisfactory to some Applicants as it does not have the appearance of fairness, given that the original decision maker also makes the decision on reconsideration. ARCH proposes that the HRTO revisit Rule 26 (“Request for Reconsideration”) to make explicit that the Reconsideration Request will be heard by a Vice Chair other than the original decision maker.[21]

With respect to accessing the HRLSC:

  • ARCH supports the aim of the HRLSC to be a specialized agency to provide seamless representation to all Applicants. However, it is discouraging that the agency has not been provided adequate funding to make that happen.
  • We are concerned that only 32.9% of Applicants had a representative.[22] On the other hand, about 80% of Respondents are represented.[23]
  • Without adequate funding to support universal representation at the HRTO, meritorious Applications are bound to fail. The availability of legal representation is an important concern for all parties, but especially those with disabilities. The power imbalances are exacerbated where parties with disabilities are unrepresented.
  • The HRTO will be better able to fairly resolve matters before it, if a greater proportion of Applicants were represented before it. As HRTO processes become more legalistic, it is increasingly important that parties are represented.
  • Some Applicants before the HRTO were not aware that the HRLSC has services available to them. During a 10-month period in 2010, 29% of Applicants had never contacted the HRLSC.[24] Of the 192 calls that we received at ARCH in 2011, we made 32 referrals to the HRLSC.

With respect to the OHRC:

  • Through our own community development work, it has been reported that the OHRC is perceived as expert for its policy work.
  • However, we have also received reports that the OHRC’s revised role is not evident to the disability community. Persons with disabilities are unsure about the OHRC’s new role including around commission-initiated complaints (Section 35), their power to undertake an inquiry (Section 31) and intervening (Section 37) in applications before the HRTO. There is a lack of clarity about the important role that the OHRC now plays.
  • The OHRC is not perceived as being fully accessible to the communities of persons with disabilities. For instance, there is no phone number posted on the OHRC’s website.

III. OPPORTUNITIES FOR ACTION: PROPOSALS TO IMPROVE THE NEW SYSTEM

We focus the bulk of our submissions on concrete proposals for moving forward, with the spirit of Bill 107 in mind. That is, we focus on ways to improve the new system, rather than to enumerate barriers or undo the positive steps already undertaken.

III.i Streamlining Accommodation Requests

ARCH proposes that the Social Justice Cluster establish an Accessibility Office, which would act as a centralized point for persons with disabilities. Tribunals in the Cluster[25] would have access the specialized expertise of the Office, in order to develop consistent solutions to the barriers experienced by Applicants with disabilities. The Accessibility Office would be responsible for the following:

  • Accept requests for accommodations at the hearings and during pre-hearing processes.
  • Publicize the types of accommodations that are available at tribunals.
  • Provide support to Tribunals, and provide training for tribunal members about conducting barrier-free hearings.
  • Establish a process for parties to provide feedback on the Tribunals’ policy and practice with respect to accommodation.
  • Monitor or track requests for accommodation.
  • Maintaining a list of interveners or interpreters, available on a short notice, who are recommended by the community.

All correspondence, not just correspondence to persons already identified as having a disability, from Tribunals in the Cluster must identify the availability and contact information of the Accessibility Office. The Office’s resources would be available in a variety of accessible formats, including clear language.

We also propose that the establishment of an Accessibility Office could assist the coordination of accommodation outside of the Toronto area.

III.ii Flexible Tribunal Processes

Rule 1.7 of the HRTO’s Rules of Procedure permits the Vice Chair or Member to adopt non-traditional methods of adjudication in order to ensure that the process is fair and understandable, including where the party is not represented. We urge Members and Vice Chairs continue to find creative ways to make the HRTO system more flexible, to meet the disability-related needs of the parties before it. Adjudicators should play an active role in the hearing process, by varying or adapting the Rules to meet the disability-related needs of the parties before it, including by allowing extra time or permitting additional documentation. Doing so, the HRTO will be better able to fairly resolve matters before it.

III.iii Tribunal Forms

ARCH proposes that the HRTO undertake an accessibility audit of its forms.

We also propose that the Application Form make clear to Applicants that they have a right to representation. The HRTO forms should alert unrepresented Applicants as to how to seek assistance from the HRLSC, community clinics or private bar counsel. This is important because callers to ARCH report that they did not know that the HRLSC has services available to them.

We also propose that Application Form include reference to OHRC policies. Linking the Application Form to the OHRC policies assists the Applicant to assert her Code-protected rights. It also has the effect of fortifying the OHRC’s expertise.

ARCH also proposes that the paper version of the Application Form should include additional detail on the form, rather than in accompanying material. Requiring potential applicants to go to a separate document may act as a barrier to Applicants or potential Applicants with disabilities. The form should provide explanations about, for example, (i) the types of facts to include, (ii) who to name as a Respondent, and (iii) what kinds of remedies (including quantum) could be requested .