Written by Carl Cunningham

The Act to Amend the Human Rights Code (the Act) passed its third reading on December 5, 2006. As a result of the Act, there will be significant changes to the way human rights complaints in Ontario are processed. Most significantly, there will no longer be an investigation by the commission prior to the hearing and complainants will have direct access to the Tribunal, so it will take less time for a complaint to get heard by the Tribunal.

The Current Network

The current human rights system in Ontario has two major components: (1) the Commission; and (2) the Tribunal. The Commission is responsible for receiving complaints, mediating complaints and investigating complaints and acts as a gatekeeper to determine which complaints should go to a hearing before the Tribunal. The Tribunal is the decision-making body that is responsible for hearing complaints of discrimination and harassment.

The current human rights system has been widely criticized for the significant delays it imposes on access to justice. It is not uncommon for it to take several years for a complaint to be processed by the Commission and actually heard by the Tribunal. The Ontario government has promoted the Act as a way to modernize and strengthen the human rights system in Ontario.

The New Framework

The Commission's role will now focus on proactive measures such as public education, promotion and public advocacy, and research and monitoring to address systemic discrimination and broader policy-related issues in Ontario.

The Tribunal will now receive complaints directly from complainants as opposed to having the complaints vetted by the Commission.

Key Changes For Employers

The new framework for the human rights system in Ontario was unveiled when the Act received its first reading in April 2006. However, some of the amendments to the Act in November 2006 (and ultimately incorporated into the final version) are quite disconcerting from an employer's perspective.

The amendments include:

• The limitation period for a complaint to be filed has been increased from 6 months after the incident to which the complaint relates to 12 months.
• The removal of almost all of the grounds on which the Tribunal has authority to dismiss a complaint without a hearing. Under the current Human Rights Code, the Commission has the ability to dismiss a complaint on a preliminary basis on several grounds including that the complaint is frivolous, vexatious or commenced in bad faith. While the version of the Act passed in April 2006 gave the Tribunal similar powers to those currently held by the Commission, to dismiss a complaint without a hearing, those powers have now been removed. Accordingly, the Tribunal may only dismiss a complaint without a hearing if it is of the opinion that another proceeding has dealt with the substance of the complaint.
• The creation of a publicly-funded Human Rights Legal Support Centre, which will provide complainants a range of services including information, support, advice, assistance and legal representation. Since the Centre will provide representation to complainants for complaints that proceed to the Tribunal, the likelihood that employers will need to obtain counsel is increased.
• The removal of the cap of $10,000 on damages for mental anguish. There are now no limits on the amount of damages the Tribunal may order.

Conclusion

Existing complaints will be grandfathered under the current framework. However, once the Act takes effect (the date of proclamation has not yet been announced), all new complaints will be processed under the new framework. While the new framework will likely increase access to complainants, we have significant concerns that the direct access to the Tribunal may result in increased time and costs for employers in defending human rights complaints.