As of July 1, 2008, the human rights regime has been significantly altered. The changes will make it easier for practitioners and others to challenge regulators in human rights matters.

Previously the Ontario Human Rights Commission investigated and screened complaints before any hearing. Frequently complaints made against regulators were not sent to a hearing because there were adequate alternative remedies to the complainant. For example, there were often administrative or court appeals in which human rights issues could be addressed. There was also often an abuse of process concern in that a person would be pursuing both administrative law and human rights remedies at the same time.

Under the new regime, there is little scope for screening of cases. The presumption is that the person initiating the challenge has a right to a hearing before a stand-alone Human Rights Tribunal. Exceptional circumstances are required to defer or prevent the hearing. One such circumstance will likley not be that there is a current proceeding before an administrative tribunal on the same or a similar issue.

Thus, regulators face the prospect of parallel proceedings where an individual is pursuing both administrative law remedies and at the same time is initiating a hearing on the same issue before the Tribunal.

One can see these collateral proceedings occurring in a number of areas including:

1. registration applications (e.g., by international applicants);
2. complaints and discipline (e.g., on such grounds as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex);
3. quality assurance (e.g., on the ground of age); and
4. incapacity (e.g., on the ground of disability).

The new Human Rights Code permits an organization (say a professional association or union) to bring a challenge on behalf of an individual with the individual’s consent. In addition, the Commission may initiate a challenge on its own. Or, the Commission can intervene in an existing challenge.

The Tribunal has broad remedial powers. In addition to ordered compensation and restitution, it can direct a party to take certain actions to promote compliance with the Human Rights Code, including ensuring future compliance.

A decision of the Tribunal is final. It is not subject to appeal. In addition, it is not subject to judicial review unless the decision was patently unreasonable. It will be interesting to see how the courts will deal with this provision since the Supreme Court of Canada has recently abandoned the patently unreasonable test for judicial review.

The Tribunal has the authority to establish procedures that are inconsistent with the Statutory Powers Procedure Act or traditional adjudication procedures. For example, the Tribunal can act as both an investigator and an adjudicator.

The amendments also create the Human Rights Legal Support Centre whose role it is to assist people wishing to bring a human rights challenge. That support can include providing a lawyer to present the case to the Tribunal.

Any action taken by an officer, employee or agent of a regulator or professional association is deemed by the Code to be an action of the corporation or professional association. Thus, regulators can be held accountable for unauthorized actions that were taken by its representatives.

Regulators should routinely review their activities, policies and procedures, and substantive requirements to try to identify areas that might be subject to a human rights challenge. Proactive measures might well be cost-effective. Any concerns expressed or accommodation requests received should be reviewed carefully, likely with the assistance of outside experts. Any suggestion that a human rights challenge may or has been launched should result in the obtaining of immediate legal advice.

For more information about the changes, see the Tribunal’s website at: www.hrto.ca.

FOR MORE INFORMATION

This newsletter is published by Steinecke Maciura LeBlanc, a law firm practising in the field of professional regulation. If you are not receiving a copy and would like one, please contact: Richard Steinecke, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4, Telephone: 416-626-6897 Facsimile: 416-593-7867, E-Mail: rsteinecke@sml-law.com

WANT TO REPRINT AN ARTICLE

A number of readers have asked to reprint articles in their own newsletters. Our policy is that readers may reprint an article as long as credit is given to both the newsletter and the firm. Please send us a copy of the issue of the newsletter which contains a reprint from Grey Areas.