Overhaul of Ontario’s Human Rights Complaint System

By Robert Brent

Groundbreaking changes to Ontario’s human rights system came into effect on June 30, 2008, intended to increase access to justice and the speed with which human rights complaints are resolved.

Significant changes have been made for complaints that proceed by the traditional route to the Ontario Human Rights Tribunal.

The Ontario Human Rights Code (the “Code”) applies to areas such as employment, housing, membership in trade and vocational associations and agreements for goods and services. The Code prohibits discrimination and harassment in those areas based on grounds like race, ancestry, disability, creed, sexual orientation, family status, marital status, and age.

Other key features of the recent amendments to the Code include:

• Complainants now have direct access to the Human Rights Tribunal. Previously, they made their complaint to the Ontario Human Rights Commission, which investigated the complaint and determined whether to refer the complaint to the Tribunal for a hearing;
• The time limit for applications is extended from 6 months to 1 year after the incident to which the application relates or, if there was a series of related incidents, the last incident in the series;
• A Human Rights Legal Support Centre, funded by the provincial government, has been created to provide free legal assistance to applicants to the Tribunal;
• The Tribunal has been handed broad powers to vary the hearing process, compel the parties to produce documents or witnesses, to directly question witnesses, and to define and narrow the issues before it;
• The Tribunal also has important new investigative powers, by which an inquiry can be ordered, where appropriate, to obtain evidence in response to a complaint;
• Parties will face tight timelines at each step of Tribunal proceedings, intended to move complaints forward promptly;
• Complainants can seek to have proceedings expedited or seek interim relief from the Tribunal;
• The Tribunal has authority to award monetary compensation to an applicant for loss arising out of the infringement of his or her human rights, including compensation for injury to dignity, feelings and self respect. The Tribunal also can order a party to make restitution to the party whose rights were infringed, other than through monetary compensation (i.e. an employer could be ordered to reinstate an employee); and • The Commission can seek to intervene in any application, with or without the consent of the complainant, and will retain power to pursue public inquiries.

For the first time, people who allege that their human rights have been infringed will have the option to pursue a complaint in Ontario’s courts, if that human rights complaint is combined with a recognized court claim. For example, an employee dismissed without reasonable notice – who also believes that he or she has suffered discrimination – will be able to combine a human rights complaint with a wrongful dismissal action in court.

The new approach may have particular benefit to disabled employees who assert that they have been dismissed on the basis of their disability. Furthermore, a judge now potentially has the ability to order an employer to reinstate the employee.

The ability of the courts to deal with human rights violations is not limited to employment disputes. Specifically, section 46.1 of the Code now provides that if the court, in a civil proceeding, finds that a party’s human rights have been infringed, the court may make an order directing the party who infringed the right to:

1. pay monetary compensation for the other party’s loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect; and/or
2. make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement.

This represents a significant change to the law in Ontario and sets Ontario apart from most other Canadian provinces. Previously, the Supreme Court of Canada – in the absence of such language in the Ontario Code – had held that there was no recognized cause of action for discrimination, and an employee alleging a breach of his or her human rights was restricted to pursuing a complaint to the Human Rights Commission.

Meanwhile, the ability of a court to now award “compensation for injury to dignity, feelings and self-respect” also represents a departure from the past, in which damages were rarely awarded for hurt feelings alone. At the same time, a former $10,000.00 cap on compensation that could be awarded for mental anguish resulting from a human rights breach has been removed, both for the purposes of Tribunal and court proceedings. It remains to be seen what sort of awards might be made in the absence of that cap.

Similarly, the ability of courts to award non-monetary relief for a breach of someone’s human rights represents uncharted territory, and only time will tell how Ontario’s courts will approach the exercise of that authority.