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 rights are part of our society’s most fundamental values. Striv-

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

characteristics, including sex, race, sexual orientation, and disability,

is part of what it means to live in a society that values human dignity

and protects some of its most vulnerable members.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 tyis 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 CanadianCharter 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 laws, but also on whether individ-

uals have real access to an enforcement process that gives meaning to

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

statutes,6 its principal and ongoing challenge has been to create an ef-

fective mecha nism for enforcing t hose rights.

Stakeholders had long complained that Ontario’s human rights

system was characterized by lengthy delays, disenfranchised and dis-

satised parties, a lack of transparency, and limited access to Human

Rights Tribunal of Ontario (Tribunal) adjudication. In 2006, the Attor-

ney General for Ontario referred to the human rights system then in

place in Ontario as “broken.”7 Many parties felt that the system 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 structural move from a commission-based human

rights system to a direct-access model. The 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 to enact human rights legislation: Racial

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

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

(Aurora: Canada Law Book, 2009) ch 2 [Cornish]; 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 human rights claims as “complaints.” Since the amendments, 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.