Ontario and the Direct Access Model to Human Rights

• Author: Michelle Flaherty
• Profession: Professor of law at the University of Ottawa and a part-time member of the Human Rights Tribunal of Ontario
• Pages: 169-190

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chapter 6

ONTARIO AND THE DIRECT ACCESS

MODEL TO HUMAN RIGHTS

Michelle Flaherty2

A. INTRODUCTION

Human right s are part of ou r society’s most fu ndamental va lues. Striv-

ing to achieve f reedom from discri mination because of cert ain personal

character istics, inc luding sex, race, se xual orientat ion, and disabi lity,

is part of what it mea ns to live in a socie ty that va lues human dign ity

and protects some of its most vulnerable memb ers.3 At least as import-

ant as the subs tantive right to be free f rom discrimina tion,4 however, is

the existence of institut ions that a llow for the eective enforcement of

1 The Human R ights Tribunal of O ntario has bee n the subject of a th ree-year

review. Section 5 7 of the Human Rights Code, RSO 1990 c H.19, as amended

[Code] specically pr ovides for an indep endent review of the Tribu nal, the

Ontario Hu man Rights Comm ission, and the Hu man Rights Leg al Support

Centre thr ee years after t he 2008 amendments ca me into eect. In 2012 ,

Andrew Pi nto released his r eport. This c hapter was writ ten prior to the

public release of t he report and, t herefore, has not consid ered its contents.

See Andrew P into, Report of the Ontar io Human Rights Review 201 2 (Toronto:

Minis try of the Attor ney General, 2012), onli ne: Ministr y of the Attorney

General www.attorneygeneral.jus.gov.on.ca/english/about/pubs/human_

rights/Pinto_human _rights_report_ 2012-ENG.pdf.

2 Michelle Flaher ty is a professor of law at t he University of Ot tawa and a

part-time memb er of the Human Rig hts Tribunal of Ont ario. The author

wishes to th ank Lucie Lam arche, Leslie Reau me, Jennifer Trépan ier, and

David Wright for t heir very helpf ul feedback and su ggestions.

3 Code, above note 1. For a full lis t of prohibited ground s and the social

areas of di scriminat ion, see Part I of the Code.

4 See, for example, s 5 of the Code, ibid and s 15 of t he Canadian Charter of

Rights and Freedoms, Pa rt I of the Constitution Act, 1982, being Schedu le B

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michelle flaherty

those right s. The measure of our society t urns not only on the vigour of

the langu age it uses in human rights law s, but also on whether individ-

uals have rea l access to an enforcement pro cess that gives mea ning to

their rig hts.5 While Ontario h as long had relatively robus t human rights

statutes,6 its princ ipal and ongoing cha llenge has been t o create an ef-

fective mecha nism for enforcing t hose rights.

Stakeholders ha d long complained that Ontario’s human right s

system was c haracteri zed by lengthy del ays, disenf ranchised a nd dis-

satised par ties, a lack of tra nsparency, and l imited access to Huma n

Rights Tribun al of Ontario (Tribu nal) adjudication. I n 2006, the Attor-

ney General for Ontar io referred to the hu man rights s ystem then in

place in Ontar io as “broken.”7 Many part ies felt that the sy stem at the

time wa s so ineective t hat there was no point in even m aking a clai m.8

In June 2008, the Ontar io human rights sys tem underwent a major over-

haul. Pri ncipal among the changes br ought to the Ontario Human Right s

Code9 (Code) was a structu ral move from a comm ission-based human

rights sy stem to a direct-access model. T he 2008 amendments to the

Code funda mentally reshape how hum an rights are enf orced in Ontario;

to the Canada Act 1982 (UK), 1982, c 11, b oth of which contai n important

protections a gainst dis criminat ion on a number of ground s.

5 This includes, of cou rse, access to eect ive remedies.

6 Ontario was the  rst province t o enact huma n rights legi slation: Racial

Discrimination Act, SO 1944, c 5 1 [Racial Discrimination Act, 1944]. See Ma ry

Cornish, Fay Fa raday, & Jo-Anne Pickel, E nforcing Human Rights in Ontario

(Aurora: Cana da Law Book, 2009) ch 2 [Corni sh]; Judith Keene, Human

Rights in Ontario, 2d ed (Toronto: Carsw ell, 1992) at 1–2 [Keene] regarding t he

histor y of human rights i n the province and the br eadth of the substa ntive

rights it prot ects.

7 Ontario, Legislat ive Assembly, Ocial Re port of Debates (Hansard), 38t h

Parl, 2d Sess, (26 Apri l 2006) at 1410 [Hansard, 26 April 2006]; Ontario, Hu-

man Right s Code Review Task Force, Achie ving Equality: A Repor t on Human

Rights Reform (Toronto: Policy Services Bran ch Ministr y of Citizensh ip, 26

June 1992) at 20 [Task Force Report].

8 See Task Force R eport, ibid at 20. Before the 2008 a mendments, the Code re-

ferred to hum an rights c laims as “compla ints.” Since the amen dments, it

speaks of “appl ications.” I use the term “applicat ion” (or “claim”) to refer t o

claims  led under the Code, whether bef ore or after the 2008 amend ments.

In the same vei n, I use the word “Tribun al” to refer to both the Onta rio Hu-

man Right s Tribunal and it s predecessor, the Board of I nquiry.

9 Code, above note 1.