Human Rights (Enforcement)

• Author: Netta Romano
• Pages: 327-389

327

Human Rights in

theWorkplace

ENFORCEMENT

10

Learning Outcomes

After completing this chapter, you will be able to:

• Identify the players involved in the enforcement of

human rights in Ontario.

• Outline the Human Rights Tribunal of Ontario’s practice

and procedure, including service requirements, time

limits, parties, witnesses, and evidence.

• Identify the remedies that may be granted under the

Human Rights Code.

Introduction ........................ 328

The Players Involved in the Enforcement

of Human Rights ................. 328

Human Rights Tribunal of Ontario:

Process and Procedure ............. 329

Remedies ........................... 336

Further Reading ..................... 342

Related Websites .................... 342

Review Questions ................... 342

Discussion Questions ................. 342

Appendix 10.1 Human Rights Tribunal

of Ontario, Form1: Application ..... 344

Appendix 10.2 Human Rights Tribunal

of Ontario, Form2: Response ....... 365

Appendix 10.3 Human Rights Tribunal

of Ontario, Form 23:Statement of

Delivery ........................ 379

Appendix 10.4 Human Rights Tribunal

of Ontario, Form24: Summons to

Witness .......................... 381

Appendix 10.5 Human Rights Tribunal

of Ontario, Form 10: Request for

an Order During Proceedings ....... 383

Appendix 10.6 Human Rights Tribunal

of Ontario, Form20:Request for

Reconsideration .................. 387

© 2022 Emond Montgomery Publications. All Rights Reserved.

328 EMPLOYMENT LAW FOR PARALEGALS

Introduction

To give true meaning to the words of the Ontario Human Rights Code,

1 there must

be effective enforcement processes that are accessible, timely, and fair to all parties

involved in the process. This chapter discusses how human rights are enforced in

Ontario, provides a step-by-step procedural guide regarding applications at the

Human Rights Tribunal of Ontario, and outlines the broad remedial powers granted

to those who have the authority to adjudicate human rights disputes.

The Players Involved in the Enforcement of

Human Rights

Signicant changes made to the enforcement provisions of the Code in 2006 resulted

in the creation of the permanent Human Rights Tribunal of Ontario (the Tribunal). Prior

to that date, complaints alleging violations of the Code were led with the Ontario

Human Rights Commission (the Commission). The Commission acted as a gatekeeper

by investigating the circumstances of the complaint and recommending whether or not

to proceed with a full oral hearing before a specially constituted board of inquiry (until

2001) or human rights tribunal, all of which took a great deal of time. All complaints

now start with the ling of an application directly with the Tribunal. When conducting

legal research, you may come across decisions referring to the Board of Inquiry. The

Commission no longer receives, considers, or investigates complaints. Its role is to

advocate for human rights and to promote public understanding of, and compliance

with, human rights requirements. The Commission also develops extensive policies on

ongoing human rightsissues that are considered by the Tribunal in adjudicating dis-

putes. The policies are available on the Commission’s website at <http://www.ohrc

.on.ca/e n>.

The Tribunal is part of Tribunals Ontario and functions as a quasi- judicial tribunal

adjudicating alleged violations of the Code and imposing remedies in accordance with

the powers granted under the Code (see “Remedies” below). Without the Commis-

sion acting as gatekeeper, the Tribunal now receives in excess of 4,500 applications

annually.

2 To satisfy its statutory obligation to provide for the “fair, just and expeditious

resolution” of the merits of applications before it,

3 the Tribunal has extensive proced-

ural and substantive powers, under sections 43 to 45.2 of the Code, to streamline its

processes.

In addition to the Commission and the Tribunal, in 2008 the Human Rights Legal

Support Centre (HRLSC) was established.

4 The HRLSC’s role is to provide free legal

advice and assistance to people who believe their rights have been violated and wish

to le an application with the Tribunal. The HRLSC was created to address the concern

that, with the change in the Commission’s role, applicants would have to represent

1 RSO 1990, c H.19 [the Code].

2 Tribunals Ontario, 2019-20 Annual Rep ort (Toronto: Queen’s Printer for Ontar io, 2020), online (pdf): <https://

Tribunalsontario.ca/documents/TO/ Tribunals_Ontario_2019-2020_Annual_ Report_EN.pdf>. Th e Tribunal reported

4,577 cases in the sca l year ending March 31, 2020, an increase of almost 1,000 ap plications in three years.

3 The Code, ss 40, 41.

4 (Last visited 27 July 2021), online: HRLSC <http:// www.hrlsc.on.ca/en/home>.

© 2022 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 10 HUMAN RIGHTS IN TH EWORKPLACE 329

themselves or incur the expense of hiring counsel. The HRLSC is staffed by lawyers

and paralegals in Toronto and several regional centres across the province.

Another signicant change that occurred in 2006 was in granting authority to

civil courts to make ndings and impose penalties under the Code. Under section

46.1, if a court in a civil proceeding nds that a party to the proceeding has infringed

a right under the Code, the court may order the party to pay monetary compensa-

tion or make other restitution to the party whose right was infringed for loss arising

out of the infringement, including compensation for injury to dignity, feelings, and

self-respect. Courts, however, will not order that an employee be reinstated to their

former position.

Lastly, arbitrators appointed to adjudicate disputes in a unionized workplace have

the power under section 48(12)(j) of the Labour Relations Act, 1995 5 “to interpret and

apply human rights and other employment-related statutes, despite any conict

between those statutes and the terms of the collective agreement.”

Employees in federally regulated industries who believe their human rights have

been violated pursue their claim with the Canadian Human Rights Commission

(CHRC). Federally regulated industries include banking, airlines, bus and railway

companies, television and radio stations, and telephone companies. Applications may

be submitted online (following a step-by-step process), by mail, or by telephone.

Upon receipt, the CHRC forwards the complaint to the named respondent, who has

an opportunity to make submissions. The CHRC’s staff then determines whether or

not to move forward with the complaint. Mediation is available but is not mandatory.

If a complaint is not resolved through mediation, an investigator is assigned to con-

duct an investigation and report back to the Commission to dismiss the complaint,

send it to conciliation, or refer it to the Canadian Human Rights Tribunal (CHRT). If

the matter is sent to conciliation, the process is similar to mediation; however, partici-

pation is mandatory on the parties. If a hearing is required, the matter is referred to

the Tribunal. Decisions of the Tribunal are nal and may be challenged only by way

of judicial review in the Federal Court.

6 For information on the CHRC process, see this

website: <https:// www.chrc-ccdp.gc.c a/eng>.

Human Rights Tribunal of Ontario: Process

and Procedure

The Tribunal website provides comprehensive, up-to-date guides on the application

process, including instructions on how to complete application and response forms

and step-by-step instructions on the procedure, from the initial stages of consid-

ering whether an application to the Tribunal can or should be brought through to

applications for judicial review in Divisional Court in the event of an unfavourable

decision. The Tribunal follows rules of procedure in common with seven other tri-

bunals previously referred to as Social Justice Tribunals, as well as its own specic

rules of procedure. As rules of procedure change from time to time, it is imperative

to always refer to the Tribunal’s website for the most current version of the rules of

5 SO 1995 c 1, ScheduleA.

6 (Last visited 30 J une 2021), online: CHRC <https://ww w.chrc-ccdp.gc.ca/eng>.

© 2022 Emond Montgomery Publications. All Rights Reserved.