Pinto Report: Review of Human Rights in Ontario
Christine Davies takes a look at the review of Ontario’s new human rights system
In 2008, the Ontario government significantly overhauled the adjudication of human rights claims in Ontario. Previously, Ontario had a Commission-based model, in which the Human Rights Commission would investigate complaints and decide whether to refer them for adjudication to the Human Rights Tribunal. Now we have a direct-access model, in which individuals can pursue their own claims directly to the Tribunal.
The hope was that the new system would be more efficient. Under the Commission-based model, there were long backlogs at the Commission, with the result that complaints often took up to five years to be decided by the Tribunal.
Following the reforms, the Commission remained, but only in a limited capacity. It retained the authority to intervene in cases or initiate complaints in the public interest. Another major reform was the decision to remove the $10,000 statutory cap on general damages for breaches of human rights. The new model also introduced the Human Rights Legal Support Centre (“HRLSC”), a legal aid clinic to assist complainants.
In 2011, the government commissioned Andrew Pinto to conduct a review of the 2008 changes to the system. Pinto’s report was released on November 8, 2012. The Pinto report endorsed the changes, but also called for further reforms.
The report found that the reforms introduced in 2008 have resulted in greater efficiency and more timely resolution of human rights disputes. Parties typically wait less than 1.5 years on average before getting a hearing in front of the Tribunal. Mediation typically takes place within nine months, and 65% of cases are settled. Pinto explained, “I would characterize the greater processing efficiency of the present human rights system as follows: a greater volume of cases are resolved faster without a backlog developing and, for those cases that do not settle and proceed to a hearing, they are decided much faster”.
However, the HRLSC has been overwhelmed by requests for assistance and representation. Furthermore, a persistent gap in legal representation for applicants (who are usually unrepresented) and respondents (who usually have legal counsel) has remained. These facts led Pinto to recommend more funding for the HRLSC.
One of Pinto’s most interesting conclusions related to damage awards. Prior to 2008, general damages were capped at $10,000. As noted, the 2008 reforms removed this cap. Despite this, there has been concern that the Tribunal’s approach to damages when deciding individual cases has remained quite conservative. There are still many cases in which general damages of $10,000 or less are awarded, and the “high end” for general damages (even in cases arising out of the termination of employment contrary to the Human Rights Code) is only about $20,000. Pinto called for the Tribunal to revisit this approach and to award significantly higher general damages for human rights violations:
Low general damages awards create a number of problems. First, they send a message that human rights and breaches of the Code are of limited importance. The fundamental denial of dignity occasioned by a breach of the Code and the resulting injury to feelings and self-respect call for meaningful compensation. The Tribunal has acknowledged that damages awards that are too low trivialize the social importance of the Code by creating a licence fee to discriminate. Second, low damages awards impose a barrier on access to justice at the Tribunal. Access to justice is denied when it is not economically feasible or worthwhile to pursue one’s rights through the human rights system …
Although Pinto acknowledged damage awards must be determined on a case by case basis, he called for a “significant” increase to the monetary range of damages. He did not make any specific suggestions for what the high range of damages should be. Pinto also recommended that the Tribunal place more emphasis on public interest remedies, calling on the Tribunal to provide an explanation in its decisions where it declined to award such remedies.
Pinto also criticized the Commission for failing to get involved in litigation before the Tribunal. He noted that it had intervened in only 1% of cases, and had only commenced one case of its own, which settled. Pinto called for the Commission to get more involved in cases involving systemic discrimination, which are notoriously difficult to prove, and to develop a process whereby community organizations can request the Commission to initiate a public interest application. In addition, Pinto called on the Commission to reintroduce its public telephone line in order to be more accessible to the public. Finally, he suggested that the Commission ought to focus more on compliance with human rights in the private sector.
In an interesting and perhaps unprecedented recommendation, Pinto has called for anonymized data to be published concerning the outcomes of mediation before the Tribunal, including the amounts of monetary settlements and public interest remedies agreed to by parties in settling complaints. This would be helpful to parties in attempting to resolve complaints, particularly unrepresented parties without knowledge of relevant Tribunal decisions.
Although the Commission previously maintained such data, we are not aware that any other court or tribunal that maintains such data. Typically, only cases actually decided by a court or tribunal are available as precedents to guide settlements. However, as Pinto points out, many of the most egregious cases settle, depriving parties of information concerning the types of damages appropriate for significant cases. This recommendation, if adopted, may therefore be very helpful in guiding parties towards settlements and in increasing the amounts of such settlements for applicants.
Controversially, Pinto has called for a further study of the merits of introducing a costs regime at the Tribunal. This is something that respondents, including employers, have been seeking for a long time. Presently, the Tribunal is a no-costs regime, which means that an unsuccessful party is not required to pay anything towards the legal costs of the successful party. By contrast, in the courts, costs are almost always awarded against the unsuccessful party (even for claims that were not frivolous).
Respondents have long argued that introducing a costs regime at the Tribunal would discourage the filing and prosecution of frivolous or unmeritorious claims. However, those representing applicants are concerned that the threat of having to pay significant legal costs would discourage applicants from pursuing claims and would thereby reduce access to justice.
You can read the Pinto Report here.