Originally published in Ontario Bar Association's Labour Relations, Labour Relations Section, Vol. 10, No. 1, October 2007.
The Ontario Human Rights Code Amendment Act,1 which received royal assent on December 20, 2006, introduced the most significant changes to the Human Rights Code2 since its introduction in 1962. Once the reforms are fully implemented, the new system will consist of three pillars: the Ontario Human Rights Commission (Commission), the Human Rights Tribunal of Ontario (Tribunal) and a new Human Rights Legal Support Centre (Centre).
On royal assent, most of the Act’s provisions were not deemed in force and no future effective date for the changes was announced. However, plans and consultation for the new system continued despite uncertainty as to when the new system would take effect. An effective date of June 30, 2008 was recently proclaimed for the provisions of the Act that are not yet in force.3
The following is a review of the provisions of the Act that are currently in effect, changes that will occur effective June 30, 2008 and a status update of planning for the changes at the Commission, Tribunal and Centre.
Changes Effective December 20, 2006
The following provisions of the Act took effect on royal assent:
- The Centre was established as a publicly funded corporate entity, independent from but accountable to the government of Ontario.4 Once the new system is in effect, the Centre will provide a variety of non-legal and legal services on human rights issues throughout Ontario, such as advising on human rights infringements, making a human rights complaint and the way an order is enforced.
- Transition provisions specify whether existing complaints will be dealt with by the Commission or by the Tribunal.5
- The transition provisions also give immediate effect to certain new procedure, review and enforcement rules. The Tribunal now has the power to make new rules of practice and procedure and has the discretion to apply these new rules to existing claims.6 Also of note are the new appeal and standard of review provisions for complaints referred to the Tribunal after December 20, 2006. Decisions will be final, not subject to appeal and may not be set aside or judicially reviewed unless the decision is determined to be patently unreasonable.7
Changes Effective June 30, 2008
The provisions of the Act that will take effect on June 30, 2008 include the following significant changes to the way human rights complaints are handled:
- New complaints will no longer be handled by the Commission. The Commission will instead take on a proactive role in human rights policy development, public education, research and analysis. The Commission’s role in ensuring human rights compliance will include powers to initiate complaints, hold public inquiries and participate on a public interest basis in hearings before the Tribunal.8
- After June 30, 2008, individuals, groups or the Commission must apply directly to the Tribunal to seek redress for a human rights violation.9
- The current six-month limitation period for filing a complaint will be extended to one year. Specifically, after June 30, 2008, an application may be made within one year following the incident to which the application relates, or if there was a series of related incidents, within one year of the last incident in the series.10
- The Act replaces the Code’s existing remedial provisions. Changes include the elimination of (i) the $10,000 mental anguish damages cap; and (ii) the requirement for applicants to show that an infringement was willful or reckless in order to claim mental anguish damages.11
- The transitional provisions that describe how existing complaints will be handled can now be read with reference to the effective date of June 30, 2008. Complaints filed with the Commission before June 30, 2008 will continue to be dealt with by the Commission for a six-month transition period ending on December 31, 2008. At any point during the transition period, a complainant may abandon his or her complaint as filed with the Commission and make an application with the Tribunal for the same matter. If the merits of a complaint have not been dealt with by the end of the transition period, the complainant may make an application to the Tribunal within a further six-month period.12
In anticipation of the forthcoming changes to the human rights system, planning and changes are in progress at the Tribunal, the Commission and the Centre.
On July 6, 2007, the Tribunal published and sought comments on its proposed interim procedural rules and reconsideration rules. The Tribunal’s website confirms forthcoming publication of and public consultation regarding the new rules of practice to apply after June 30, 2008; however, no release date was specified at the time this article was written.13
In anticipation of the transition period and the move to a new mandate, the Commission has revised its complaint process guidelines to facilitate faster processing.14 It is also in the process of public consultation to determine priorities and goals to meet its new mandate.15
The Centre is mandated to be functional as of June 30, 2008, creating significant time pressure for implementation and planning. The transition director for the Centre, Helena Birt, is currently developing the Centre’s proposed organizational structure and business processes. Recruitment for the Centre board chair and members is underway.16 As of June 11, 2007, a number of issues were still unresolved, including finalization of funding and determination of how services will be provided outside the GTA.17
Five public forums have been scheduled in November to provide information and to answer questions concerning the progress of implementation of the new system. Chief Commissioner Barbara Hall, Tribunal Chair Michael Gottheil and Centre Transition Director Birt will attend these forums to discuss the new roles of their organizations.18
1. S.O. 2006, c. 30 (Act).
2. R.S.O. 1990, c. H-19 (Code), as amended.
3. The proclamation made on August 22, 2007 declaring June 30, 2008 as the day on which sections 1 to 5, 7, 8 and 9 of the Act will come into force was published in the Ontario Gazette issue of Saturday, September 1, 2007, v. 140, n.35.
4. Act, supra note 1 at s. 45.11(1)-(5).
5. Code, supra note 2 at s. 53.
6. Ibid. at s. 52(1). As noted below, however, the Tribunal has only recently published interim rules for comment and has yet to publish draft revised rules of practice and procedure to be implemented effective June 30, 2008.
7. Ibid. at s. 52(3). Examples of some of the other transition provisions set out in Part VI of the Code that took effect as of December 20, 2006 include (i) s. 56(1) and (2) of the Code, which provide that the Lieutenant Governor in Council may make regulations providing for transitional matters considered necessary or desirable for implementing the changes introduced by the Act or to address issues or problems arising in the implementation of the changes introduced by the Act; and (ii) s. 54 of the Code, which provides that a settlement effected by the Commission, agreed and signed by the parties and approved by the Commission prior to the effective date or during the transition period may be enforced under the new enforcement provisions.
8. Ibid., Part III, as amended effective June 30, 2008.
9. Ibid., Part IV, as amended effective June 30, 2008. Part IV details the function, powers and procedures of the Tribunal.
10. Ibid. at s. 34, as amended effective June 30, 2008.
11. Ibid. at s. 41(1)(b), currently in force and to be repealed effective June 30, 2008.
12. Ibid. at s. 53.
13. "Tribunal Consultation on Rules," online: Human Rights Tribunal of Ontario www.hrto.ca/english/about/consultation.asp.
14. The Commission published its Complaint Process Service Guide on March 30, 2007, and further information on the complaint process on July 16, 2007. "Complaint Processing Guides," online: Ontario Human Rights Commission www.ohrc.on.ca/en/commission/complaint_processing_guides.
15. "What We Heard – Results of a Community Survey," online: Ontario Human Rights Commission www.ohrc.on.ca/en/commission/mission/wwh.
16. "Human Rights in Ontario and the Human Rights Code Amendment Act, 2006," online: Ministry of the Attorney General www.attorneygeneral.jus.gov.on.ca/english/about/ohrc.asp.
17. Helena C. Birt, "The Ontario Human Rights Legal Support Centre: A Brief Introduction" (June 11, 2007, Ontario Bar Association Conference) at 9.
18. Ministry of the Attorney General, supra note 16.
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