Canada: Today´s The Day: The Ontario Human Rights Process Changes

This is a reminder that the Human Rights Code Amendment Act, 2006 comes into force on June 30, 2008, with important implications for employers. The Act, which was passed in December 2006 as Bill 107, amends the Ontario Human Rights Code and significantly changes the way in which human rights complaints will be administered in the province. The Human Rights Tribunal of Ontario estimates that the changes will result in the number of complaints considered by the Tribunal growing from approximately 150 to a staggering 3,000 per year. Several critical changes are highlighted below:

Narrowing the Human Rights Commission's Role

Eliminating the gatekeeper function of the Commission

In the past, an individual would file a complaint with the Human Rights Commission. The Commission then investigated the matter and it was settled, dismissed, or referred to the Tribunal for a hearing. In our experience, only a small percentage of cases went to the Tribunal for a hearing.

As of June 30th, individuals may now apply directly to the Tribunal for a hearing, under Part IV of the Human Rights Code. While the Commission will retain some ability to initiate inquiries and make applications to the Tribunal in matters of public interest, it will no longer control the flow of issues considered by the Tribunal and its role in the application process will be greatly diminished. Applicants may, therefore, proceed directly to a hearing before the Tribunal (although the Tribunal will also have the power to require parties to participate in alternative resolution methods, such as mediation). A Human Rights Legal Support Centre will also be created to assist applicants with the filing of their applications and to provide them with other free legal support.

Expanding the Human Rights Tribunal's Role

Broadening the scope of remedial powers granted to the Tribunal

Previously the Tribunal could only award up to a maximum of $10,000 for mental anguish. The amendments remove that restriction on the quantum of compensation. The Tribunal may now direct a party to pay any amount it deems appropriate for an infringement of a right and the subsequent injury to an applicant's dignity, feelings, and self-respect. Stay tuned: employers may end up paying significantly higher monetary awards than under the old provisions.

Extending the Limitation Period for Filing a Claim

Limitation period expanded to one year

The current limitation period for an application has been increased from six months to one year from the date of the incident complained of (or, if there was a series of events, within one year of the last incident in the series). If the time limit is passed, applicants may also apply for an extension, if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected.

Transitional Cases

Individuals with outstanding complaints have two options

As of June 30, 2008, all new applications will be brought pursuant to the amended Human Rights Code. Under transitional provisions, individuals with applications outstanding at the Commission on June 30, 2008 have two options: (a) abandon outstanding applications with the Commission and re-file with the Tribunal; or (b) continue their applications with the Commission. The Commission will retain all of its original powers during a transitional period up to December 31, 2008, including the power to dismiss cases or refer them to the Tribunal. However, if on January 1, 2009 the application remains outstanding, the applicant will have until June 30, 2009 to file an application with the Tribunal to continue the matter with it.

Conclusion

It is likely that the amendments will result in an increased number of human rights hearings and higher monetary awards in Ontario. Employers should prepare themselves for the changes, such as by reviewing their policies, practices, and processes to ensure that they comply with the Code -- and by readying themselves for an increase in Tribunal hearings and potential liabilities.

More information on the amendments to the Ontario Human Rights Code and on the transitional provisions can be found at http://www.hrto.ca.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2008 McMillan LLP

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