GETTING RID OF THE "GATEKEEPER":

A PRACTICAL MODEL FOR HUMAN RIGHTS REFORM

By: Mark Hart and Geri Sanson[1]

January 7, 2005

PART I: Why Direct Access

The Ontario Human Rights Code[2] is legislation of quasi-constitutional importance, yet approximately ninety-six percent of persons filing human rights claims never get a hearing.[3] Decisions regarding whether or not an individual claimant will get a hearing are made behind closed doors, primarily by part-time lay Commissioners, with no particular human rights expertise. A decision not to proceed to a hearing extinguishes fundamental human rights claims and denies appropriate remedies to individual claimants.

Since the 1990's, there has been a growing concern provincially and federally, that existing human rights processes, as carved out legislatively, are archaic and ill equipped to properly address the often competing goals of the public and private interests in remedying both broader systemic discrimination and individual equality rights claims. Some of the recurring issues include: the perception that meritorious complaints are being extinguished by an overly zealous and mechanical Commission gate-keeping process; the lack of transparency and accountability of Commission investigators and of Commission decision-makers; the inordinate delays when complaints are sent forward for investigation; and the unnecessary duplication of evidence gathering and mediation services occurring at the Commission level thereby creating additional delay and expense, when a hearing de novo and mediation already occur at the Tribunal level.

In 1991, and as a result of continuing advocacy for change to address the system=s inadequacies by over fourty different agencies and groups across Ontario, known collectively as the Coalition for Human Rights Reform,[4] the Ontario Government appointed a Task Force to conduct a six month review of the existing human rights process and to prepare a report and recommendations. The report of the Task Force was released June 26, 1992 and was entitled AAchieving Equality: A Report on Human Rights Reform@ (the "Cornish Report"). The Cornish Report was comprehensive in its review of the human rights process and in making positive recommendations for change, and it validated the concerns which had been previously identified by many Ontarians relating to the existing human rights process.

One of the primary and most pressing needs for reform of the Human Rights Code that was identified in the Cornish Report was to get rid of the Commission=s gatekeeping function: AAt its public hearings and in the submissions it received, the single, strongest recommendation made to the Task Force was for claimants to have direct access to a hearing process they directed. The Task Force agrees with this recommendation. The Task Force believes it is unconscionable for the Code to give people and groups fundamental equality rights and then deny them access to a hearing to claim those rights.@ [5]

To underscore the urgency of the need for reform, the Co-Chairs of the Task Force wrote in their cover letter to the then Minister of Citizenship enclosing the report: AProper justice is currently being denied to claimants= rights. They are issues which are important not only to Ontarians but to everyone in the country and elsewhere who have looked to Ontario as a leader in human rights enforcement.@[6]

Despite the action taken by the government during this period to identify and document the serious institutional and systemic concerns with the human rights process, the report and its recommendations were basically left to gather dust on a shelf. Needless to say, the systemic problems with the claim process did not disappear but rather continued to fester.

Several years later, another panel was created in the federal sphere, headed by Justice LaForest. This Panel was appointed to review similar concerns in the federal human rights process. Not surprisingly, the need for direct access to a Tribunal for human rights claimants again figured prominently in the Panel=s review and ultimate report released in 2000, entitled: APromoting Equality: A New Vision@ (the "LaForest Report"). The following excerpts represent just a few of the submissions received by the Panel:

from the Canadian Bar Association:

"The current model of the Commission as a "gatekeeper" of complaints should be eliminated. Victims of discrimination should be able to pursue their complaints even if the Commission does not want to be involved. We suggest a model for individual complaints which gives less of a role to the Commission as an investigative body and more to the Tribunal as an adjudicative body. The Commission should be the first point of contact for a complainant, and the Commission should make a quick determination as to whether it wants to be involved."[7]

from the Saskatchewan Action Committee - Status of Women:

"Many cases are thrown out by the Commission. For me there is a serious concern because if we are committed to addressing the issue of human rights, we must address human rights [...] in the broadest sense of the mandate. That would mean bringing issues before a body that in fact looks at it seriously, a body of experts. For us, I think one of the things we talked about was introducing something like a standing Tribunal where these cases go forward before a standing Tribunal."[8]

from the Coalition for Reform of the Ontario Human Rights Commission:

"The existing Commission style model does not reflect this fundamental distinction between public and individual interests. By forcing all individual complainants to pass through the gatekeeper, there is no opportunity to directly present evidence to a decision-maker with the power to issue an enforceable order. This model creates a system that is paternalistic, disempowering and ultimately discriminatory because the only people in Canada who are forced to go through the system are the ones who are already identified as disadvantaged."[9]

The Canadian Human Rights Review Panel also noted that Canada had been advised by two United Nations human rights bodies that human rights protections require direct access to the Tribunal:

$  In November, 1998, at the third periodic review of Canada's compliance with the International Covenant on Economic, Social and Cultural Rights, the United Nations Committee on Economic, Social and Cultural Rights stated: "[...] enforcement mechanisms provided in human rights legislation need to be reinforced to ensure that all human rights claims not settled through mediation are promptly determined before a competent human rights tribunal, with the provision of legal aid to vulnerable groups."[10]

$  The United Nations Human Rights Committee noted in its concluding observations about Canada's compliance with the requirement of the International Covenant on Civil and Political Rights that: "The Committee recommends that the relevant human rights legislation be amended so as to guarantee access to a competent tribunal and to an effective remedy in all cases of discrimination."[11]

As with the Ontario Task Force, the Canadian Human Rights Panel concluded that the Commission=s dispute process must resolve a number of problems faced by the current process. The Panel identified the five most serious issues as being: delays; perceived conflict of roles; perception that meritorious complaints are dismissed; inability to focus resources; and the importance of Tribunal interpretation.[12]

Also like the Ontario Task Force, and after canvassing a number of alternative options for reform, the Panel concluded that the option of providing claimants with direct access to a Tribunal hearing was the best option to address the existing process= most serious concerns: AIt is the Panel's view that the most serious problems we have identified will remain with the models that do not separate a proactive Commission from the complaint processing function and that permit the Commission to dismiss complaints without a hearing..... A third option would empower a claimant to take a human rights claim directly to Tribunal, ending the Commission's monopoly on complaint processing. Claims would be filed directly with the Tribunal. This process would have a pre-hearing process to ensure that cases without merit would not proceed to a full hearing before the Tribunal. The Tribunal would ensure through its rules and orders that the parties to the case were fully informed of the issues and the evidence of the other side before proceeding to a full hearing. Legal assistance would be provided to ensure that claimants and impecunious respondents had the help needed to present their case.@[13]

The La Forest Report identified several advantages of this option including:

1) There would be no institutional conflicts between the Commission's role as decision-maker and advocate. This would increase the credibility of the Commission as an advocate for human rights, making the other proactive activities of the Commission more persuasive;

2) The delay at the Commission stage would be eliminated. The parties would be accountable for their own delays and the Tribunal would have more powerful tools to ensure that the parties proceeded as quickly as possible;

3) The Commission would be able to use its resources more effectively, allowing it to act in a proactive way to promote human rights;

4) The direct access model would allow the Commission to become more transparent about its enforcement goals, emanating from the criteria it would use for selecting cases to initiate or join as a party;

5) This option would also give claimants greater control over their disputes with employers and service providers.[14]

Following the LaForest Report, and unfortunately again similar to the path of the provincial experience, no further action was taken by the federal government to remove the Commission=s gatekeeper function or to provide claimants with direct access to a Tribunal.

While it remains unclear as to why neither the provincial nor federal governments have acted on the important and insightful recommendations for reform made in both of these reports, we can extrapolate that governments have not proceeded further for reasons which may relate to the magnitude of the overall reforms as either overwhelming in scope, degree of necessary legislative change, costs, or the provision of related support systems. Nonetheless, there continues to be a growing support and interest by human rights practitioners on both sides of the fence, academics, legal aid and other advocacy clinics, and the parties to the human rights process, in the call for reform of the human rights process to get rid of the Commission=s gatekeeper function.

In an effort to further the legislative goal of achieving direct access, this paper canvasses Ahow to@ options that it is hoped will assist the momentum of interest for reform. In short, we hope to demystify some of the "bugaboos" that may be holding the government back from legislative action.

PART II: How to Make it Work

1)  Filing a Complaint

Under the current model, potential claimants contact the Ontario Human Rights Commission through an automated telephone system, and ultimately may be able to speak to an Intake Officer. The Intake Officer will briefly discuss with the potential claimant the nature of the claim in order to assess whether the claim falls within the Commission=s jurisdiction. If so, the potential claimant is then sent an intake questionnaire, which asks the person to provide written particulars of the claim. Until recently, upon receipt of the intake questionnaire, the Intake Officer would then draft the complaint for the claimant=s signature based on the material provided and perhaps some follow-up questions. As a result of recent cutbacks to the Commission=s services, claimants are now required to draft their own complaints, unless they have special needs.[15]

Alternatively, where the claimant is represented by legal counsel or a support agency, the complaint generally is drafted by counsel or the agency without prior contact with an Intake Office, and is simply filed with the Commission.

Under the direct access model, the claim would be filed directly with the Tribunal, rather than with the Commission. There are, however, some differences in recommendations as to who would provide assistance to claimants in filing their claims.

Under the LaForest model, it is proposed that the Commission would continue in its role of assisting claimants in filling out claim forms and advising about the kinds of documents needed for the claims process.[16] This recommendation was based on the notion that the Commission had developed expertise in delivering this kind of service, and that it would create some kind of bias or conflict of interest for the Tribunal to become involved in this manner.

In contrast, the Cornish model proposes that an Office of the Registrar be created at the Tribunal, which would include Intake Officers who would assist potential claimants in filing their claims.[17]

If the Commission were to continue in any role of assisting potential claimants to prepare claims to be filed with the Tribunal, this could serve to create confusion and unnecessary duplication. First, the Commission has ceased to provide this service to claimants in any event. Second, it is not at all uncommon for administrative tribunals to deal with inquiries from the public about filing claims and to assist potential claimants in ensuring that claim forms are properly filled out. The Ontario Labour Relations Board and the Workplace Safety and Insurance Board are examples. As long as Tribunal officials are not framing the allegations, but are simply providing information as to how to properly complete the claim forms, then no issue of potential bias or conflict of interest should arise. Third, the reality is that once the new Tribunal is created, members of the public will be calling the Tribunal about filing claims in any event. It would be confusing for people to contact the Tribunal only to be re-directed back to the Commission to get information about the Tribunal=s own procedures. This also would create unnecessary duplication and cost.