Human Rights Alert

THE TIMES THEY ARE A-CHANGIN’

1. Overview

Before Bill 107, when giving advice to Boards of Education about a complaint received from the Human Rights Commission, it has been: relax.  Ten years from now we may get to a hearing, but it is pretty unlikely! Although in most Labour Relations, matters move along quickly as “labour relations delayed is labour relations denied”. Within the Human Rights field this is a statement honoured in its breach. At the present time the average time for the Human Rights Commission (“the Commission”) to investigate a complaint is three to four years after the date it is first brought to the Commission’s attention. The various governments of the day in Ontario have consistently floundered when confronted with a problem of too few investigators and too many complaints.

Bill 107 was passed in 2006 to deal with that delay and radically change the procedures for getting Human Rights Complaints resolved. The emphasis in this new legislation is on procedure:  substantive law changes are minimal and where they are contemplated, it is by regulation still to be enacted. Ontario is following the lead of British California …. I mean British Columbia, by effectively doing away with the Human Rights Commission, and making the Human Rights Code procedure one of individual complaint driven by the complainant but with government supplied advocates, Bill 107 passed, but most of the changes referring cases directly to the Human Rights Tribunal takes effect June 8, 2008.

2. What is?  What will be?

In the chart attached to the paper, the existing system is compared to the future procedural regime of Bill 107. The current system is built around the Ontario Human Rights Commission. The Commission is central to all aspects of the litigation, including if the complaint ever gets before the Human Rights Tribunal. A complainant must bring the complaint to the Commission. Once before the Commission, the Commission investigates the complaint at its expense, with its investigators and within the Commission’s time frames. Questions of a complaint being frivolous, vexatious, in bad faith or out of time go to the Commissioners. After investigation, the Commission then decides whether the complaint has merit and it is necessary to go to a hearing with witnesses and evidence being called before a separate, independent body called the Human Rights Tribunal. Before the Human Rights Tribunal, the Human Rights Commission as one the parties has carriage of the case at its expense, with the complainant having no out-of-pocket costs. The responding party has to defend itself at its expense and sometimes can have both a Commission lawyer and an individual complainant’s lawyer opposing.

Under the proposed system of Bill 107, individual complainants apply directly to the Human Rights Tribunal for relief and by-pass the Commission entirely. Based on the procedural rules of the Tribunal, the individual, and not the Commission, has carriage of the application, but based on amendments introduced late the day, not including paying the costs of moving the proceeding along nor representation costs before and at the hearing itself. The Human Rights Commission no longer would have the power to launch complaints for compensation on behalf of individuals: it would be an individual’s decision but at the taxpayer’s expense. The Human Rights Commission will become a shadow of its former self with limited jurisdiction to deal with cases of “systemic infringement of rights”. Even in cases where systemic infringement is found, there will be no monetary compensation or the restitution payable, but only orders to change a party’s future practices.

3. The Way Forward: Fewer claims or more claims, that is the question?

At first blush, the assumption is going from a publicly funded complaint process, where a complainant has no out-of-pocket costs to themselves, to one that is moved forward by the individual, but paid for again by the Ontario Government will result in at least the same number of complaints. If in fact the complaints are heard more quickly, and awards are higher, a rise in the number of complaints is much more likely. Bill 107 does have provision for government provided and sponsored legal services for applicants, and all complaints will receive free legal representation from intake of the complaint to hearing.

A. Legal Costs

Apart from the provision of free counsel services to individuals, the proposed system has no provision for awarding of lawyers’ costs to a successful applicant, or against them if unsuccessful. Complainants will not be deterred from bringing claims.

B. Awards of Damage

A cap of $10,000.00 for mental distress was a deterrent to claimants and their counsel. This will change under the proposed amendments as there is no limit on compensation for mental anguish or compensation in general under the new system. In fact, to obtain compensation for mental anguish the current system requires infringements to be engaged in a willful or reckless manner. This has been eliminated and a new monetary compensation for injury to dignity, feelings and self-respect with no limit (without any requirements for willful or reckless conduct) has been grafted on to the existing categories.

With no cost to advance claims, no limit on the amount that can be awarded and perhaps adjudication in reasonable time frames of nine to twelve months, claim numbers will rise.

C. Combining Claims

In a fashion somewhat similar to the class actions, the new Act will allow complainants the option of filing their claims jointly. Under the existing system, this would only happen if the Commission made the decision to have cases heard together based on similarity of claim. Ingenious complainant’s counsel looking for a contingency fee on a large sum may see the option of joining claims to create a larger pot the “treasure” at the end of the rainbow.

D. Dismissal Before Oral Submissions

Under the existing Act, a complaint could be effectively dismissed by the Commission if the complaint was trivial, frivolous, vexatious or made in bad faith; the complaint was not within the jurisdiction of the Commission or was out of time; or most importantly there were other forums in which proceedings would be available to the complainant to have their concerns aired (often at arbitrations).  The claims could be struck from the Human Rights Complaint process before they really got started, just by making written requests to the Commission. Apart from lack of jurisdiction, complainants will not have a claim dismissed unless there is an opportunity for oral submissions, even if the claim is that the proceeding is trivial, frivolous, vexatious, made in bad faith. A proceeding could be dismissed if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of an application. Even this limited jurisdiction is only if a proceeding has appropriately dealt with the application. Simply because another procedure is available, i.e. arbitration, unless that arbitration has already taken place and has appropriately dealt with the substance of a complaint, complainants will not have to fear a summary application without full opportunity to respond to keep the case alive. Due the costs of oral hearings and attendances, in most cases in Toronto, settlements may be more likely just to avoid costs.

E. Proving the Case

At present, it is the Commission that does the investigation, preparatory work, and documentary discovery to validate complaints. This will change dramatically and will reverse as the burden will now be on complainants to get all this information. Presumably, the Human Rights Tribunal Rules will be changed to allow for documentary discovery. This added burden will not discourage frivolous claims since government paid lawyer will be there to help for free.

F. It’s the Remedy that Matters

The adjustment of monetary compensation to eliminate the $10,000 cap and eliminate the requirement for willful or reckless conduct could make a huge difference in whether claims are advanced. Adding a new claim for monetary compensation for injury to dignity, feelings and self-respect may make a significant difference.

Proceedings outside the Human Rights Code and in the Superior Court of Justice increase the likelihood of breach of Human Rights proceeding. At the present, there is no right to claim breach of the Human Rights Code directly in a civil lawsuit, although the Courts have been creative in awarding punitive damage claims for breach of someone’s dignity by highhanded and callous action. A decision in Keays v. Honda Canada Inc. before the Ontario Court of Appeal in September of 2006 sets the stage for this. At trial punitive damages of half a million dollars had been awarded to an employee of Honda’s Alliston manufacturing plant. The end result after reduction by the Court of Appeal was a punitive damage award of $100,000 to a disabled worker. There was no direct cause of action for breach of the employee’s human rights, but the Court found discrimination on the basis of disability resulted in the most dramatic form of employment harassment: termination.

Over a seven month period Honda required its employee to justify his medical absences due to chronic fatigue syndrome in ways that it did not do with “mainstream” illnesses. Absences due to disability resulted in disciplinary proceedings, and later on attendances before company doctors where the disability was belittled, and the employee treated with gross insensitivity. Rather than accommodate the disability, any accommodations were cancelled in retaliation for the employee retaining a lawyer to advance his rights. Honda’s actions were seen as outrageous and highhanded conduct requiring retribution, denunciation and deterrence by awarding punitive damages. The factors the Ontario Court of Appeal took into account and accepted were:

i) Honda’s motivation for terminating its employee was to avoid its obligation to accommodate his disability;

ii) Honda attempted to intimidate him into seeing its occupational medicine specialist who employed a hardball approach to employee’s absences that was not justified;

iii) Honda did all this in full knowledge of its employee’s particular vulnerability because of his disability.

Although Honda had the right to employ professional assistance in the accommodation process, it must engage in this process reasonably and in good faith. Importantly, the court noted:

“Where it (Honda) proceeds in bad faith and seeks to evade its legal obligation to accommodate those rendered vulnerable through disability by wrongfully terminating them, compensation and punishment are both justified.”.

The importance of this statement from Ontario’s highest court is persons discriminated against have the right not only to compensation from the termination of employment, but also compensation through punitive damages. With both these heads of damage available, and in the case of the Honda case at a substantial level of $100,000.00 in punitive damages, case numbers will be substantial and growing. Given Bill 107 will create a claim that previously did not exist, for compensation for injury to dignity, feelings and self-respect, the opportunity for more claims advanced either in the Superior Court of Justice or before the Tribunal will be significant. Arbitration awards can also give these awards. Note, the Supreme Court of Canada has given leave to appeal the Court of Appeal decision – the game is still afoot.

G. The Double Whammy

The opportunity exists for a two-prong litigation process in two different venues. The Human Rights complaint before the Human Rights Tribunal, that can be governed by counsel and pushed forward to hearing quickly.  This will make an attractive forum. Where there is an additional independent civil wrong, such as breach of contract, a claim can also be made in Superior Court as long as compensation for injury to dignity, feelings or self-respect is not claimed in that separate proceeding. This would give the wise complainant two opportunities to recover. Conversely, if the Human Rights Tribunal system makes awards under its new jurisdiction that are too low, claims within Superior Court for both punitive damages and compensation for injury to dignity, feelings and self-respect can proceed, or before Boards or arbitration for unionized employees.

4. Transition to the New Regime

When Bill 107 substantive provisions come into force on June 8th, 2008, all complaints from that date forward will be applications directly to the Tribunal.

Outstanding complaints made to the Commission prior to that date will be dealt with by a set of rules as follows:

(i) Complaints made before June 8th, 2008 will continue to dealt with by the Commission for six months only (December 8th, 2008) as if the new Act was not in force i.e. investigation and referral if warranted, unless the Complainant elects within the six months to abandon that complaint and go directly to the Tribunal under the new Act.

(ii) For complainants that have been referred to the Tribunal before June 8th, 2008, then the Commission is still the party that has carriage of the complainant and presents the case, but referrals to the Tribunal for complainants made before June 8th, 2008 but referred there after June 8th, 2008, the Commission does not have carriage;

(iii)  For pre-June 8, 2008 complainants that have not been dealt with on the merits by December 8th, 2008 and have not been settled or withdrawn, the complainant has until June 8th, 2009 to make application directly to the Tribunal and be dealt with under the new Act as if the old complaint was not made.

5. The Road Ahead

Bill 107 has the potential to create a system that allows Human Rights complaints to advance quickly and resolve issues while they still have significance to the parties. The Tribunal rules and amendments, if created to allow expeditious pre-hearing procedures, will unplug a system that is overburdened and ineffective.

Provided the evidentiary disclosure and discovery processes that presently bedevil Human Rights complaints are done away with and the resources to enable timely, efficient hearings before the Tribunal proceed, Boards of Education will no longer receive the advice and can sit back, relax and wait until the complaint dies on the vine. The times they are a-changin’…