In the face of Canada’s changing demographics,
one of its biggest challenges is to ensure the protection
and administration of justice with respect to human rights.
The Ontario government has attempted to address some of
these obstacles by passing the Ontario Human Rights Code
2006 (also referred to as Bill 107) , which came into effect
on June 30, 2008. One of the most significant changes under
the amended Ontario Human Rights Code
(Code) is that the Human Rights Tribunal of Ontario
(HRTO) will now be processing human rights complaints instead
of the Ontario Human Rights Commission (OHRC). Other changes
involve the addition of an administrative branch, removing
restrictions on damage awards for mental anguish, and permitting
human rights violations pleadings in civil actions.
This Charity Law Bulletin provides
a brief overview of how charities might be impacted by the
new human rights system in Ontario and what they need to
know about the changes to the Code.
WHY THE HUMAN RIGHTS REGIME CHANGE MATTERS TO CHARITIES: CHARITIES
IN THE HUMAN RIGHTS PROCESS
One of the legal practice areas that
will undoubtedly experience the affects of the changes to
the human rights process is labour and employment. Along
with other organizations, corporations, and individuals,
charities must also have and implement policies and practices
for its employees and volunteers that comply with applicable
human rights legislation. For instance, charities should
ensure that they have a policy in place concerning accommodation
for employees who are members of a disadvantaged group identified
in the Code.
It is also important to remember that
many charities and non-profit organizations are involved
in employment advertising to attract employees to carry
out programs and activities. To this end, in addition to
compliant policies and practices, charities must also be
careful to avoid infringing human rights legislation and
exposing themselves to human rights complaints in their
efforts to hire appropriate employees.
The Christian Horizons
Heintz v. Christian Horizons
is a recent example of how charities can become involved
in the human rights process, especially with respect to
potentially discriminatory employment practices. Christian
Horizons is a charity that required one of its employees
(Ms. Heintz) to sign a Lifestyle and Morality Statement,
which (among other things) prohibited employees from engaging
in homosexual relationships. Heintz identifies herself
as a Christian who (during her employment with Christian
Horizons) came to an understanding that she is also a lesbian.
Ms. Heintz eventually resigned from
her position at Christian Horizons after an encounter with
her supervisor who confronted her about her sexual orientation.
Although she resigned, representatives of Christian Horizons
admitted that she would have been terminated had she not
After her resignation, Ms. Heintz filed
a human rights complaint with the HRTO. Reference to Christian
Horizons in this Bulletin is made in order to demonstrate
how charities might become involved in human rights litigation;
for more details on the HRTO’s ruling in this case, please
see, Church Law Bulletin No. 22 dated May 28, 2008, entitled
“The Christian Horizons Decision: A Case Comment”, available
Chief Commissioner Barbara Hall asserted
what Christian Horizons means for charities’ compliance
with the Code. She says, “[the case] sets out that
when faith-based and other organizations move beyond serving
the interests of their particular community to serving the
general public, the rights of others, including employees,
must be respected”.
Whether one agrees with her statements or not is open to
debate; nevertheless, Christian Horizons highlights
the need for charities to consider the human rights implications
of their actions and policies.
PROBLEMS COMMONLY COMPLAINED OF UNDER THE
Backlog and Delay: Commission
Under the old regime in Ontario, the
OHRC assisted complainants in drafting a complaint and advancing
the fact finding and investigation aspects of the complaints
process. In the National Journal of Constitutional Law,
Yavar Hameed and Niiti Simmonds contribute an article, which
comments on various problems with the old (then current)
human rights regime. They assert that “[t]he gate keeping
function of human rights commissions has been variously
criticized […] as an impediment to access to justice – in
contrast to the ‘direct access model’”.
One of the most common criticisms of
administrative tribunals is the delay and backlog of complaints.
Hameed and Simmonds attribute this to underfunded and overburdened
administrative human rights tribunals. Often, a complainant
could expect a wait of approximately one to two years before
a complaint was referred to the tribunal as measured from
the beginning of the intake stage.
In many cases, the old system had the affect of either causing
complainants to settle out of frustration with the system
or just be deterred from filing complaints altogether.
Another issue of concern under the old
regime was the $10,000 cap on damages awarded for mental
anguish. Critics argued that the cap diluted the seriousness
of human rights violations and that, in some cases, potential
claimants would have to pay out more money in legal fees
than what their damages might amount to in the event of
a ruling in their favour.
STRUCTURE AND OBJECTIVES OF THE NEW REGIME
Ontario Human Rights Commission
The new system consists of three bodies
each designed to meet specific functions in the administration
of justice with respect to human rights. The OHRC asserts
that the new system is designed to resolve discrimination
claims faster and help promote and advance human rights.
Under the revised Human Rights Code,
the role of the OHRC in preventing discrimination and promoting
and advancing human rights in Ontario is no longer to process
claims. Instead, the OHRC will focus on the following objectives:
Expanding its work in promoting
a culture of human rights in the province
Conducting public inquiries
Initiating its own applications
(formerly called ‘complaints’)
Intervening in proceedings
at the HRTO
Focusing on engaging in proactive
measures to prevent discrimination using public education,
The OHRC will also undertake the review
and development of public policy on human rights. The Commission
asserts that “[t]he overall spirit of the new law is that
the OHRC is one part of a system for human rights alongside
the HRTO and Human Rights Legal Support Centre”.
Human Rights Tribunal of
The HRTO will deal with all claims of
discrimination filed under the Code. The Tribunal
will resolve human rights applications through mediation
or adjudication in a fair, open and timely manner. Applicants
will now have direct access to the Tribunal.
The volume of applications per year
to the Tribunal is expected to grow from 100-150 to approximately
In light of the challenges that the changes under the revised
Code present, the Tribunal intends to respond by
ensuring that its members have expertise in both human rights
and modern dispute resolution techniques.
Human Rights Legal Support
Along with the OHRC and HRTO, the Human
Rights Legal Support Centre (“Legal Centre”) will fulfill
unique objectives in the goal of administering human rights
to Ontarians. The Legal Centre is an independent agency
funded by the Ontario Government through the Ministry of
the Attorney General and recently opened on June 30, 2008.
The objects of the Legal Centre are as follows:
To establish and administer
a cost-effective and efficient system for providing support
services, including legal services, respecting applications
to the Human rights tribunal of Ontario; and
To establish policies and
priorities for the provision of support services based on
its financial resources.
The Legal Centre holds itself out to
provide legal advice and assistance to Ontarians; more specifically,
it can help individuals:
Resolve a dispute involving
rights under the Code
File an application to the
HRTO if individuals want to ask the tribunal to consider
and resolve the dispute through mediation or at a hearing
Provide legal assistance
when applications to the Tribunal are at mediation or at
a hearing before the Tribunal
Help enforce an Order of
the Tribunal if the Tribunal finds that an individual has
The HRTO no longer has to adhere to a
prescribed limit for damages relating to mental anguish.
In the context of employment law, employers will need to
take this into consideration as damages are expected to
get much larger. Furthermore, complainants will have more
incentive to make claims, since their damage awards have
the potential to more closely reflect the compensation they
may be entitled to.
HUMAN RIGHTS PLEADINGS IN THE CIVIL LITIGATION CONTEXT
Another major development in human rights
law under the new regime is that individuals can not only
make human rights claims before the HRTO, but can now also
plead human rights violations in civil lawsuits. For instance,
someone who pleads that his or her employer wrongfully dismissed
him or her can also plead that his or her human rights were
infringed. Where a civil court finds that a human rights
violation has occurred, a civil court can now award damages
to compensate wronged individuals. It will be important
to pay attention to how the courts actually implement this
increased power. Nonetheless, human rights violation pleadings
in civil cases can be expected to increase as a result of
PROBLEMS THAT CONTINUE TO EXIST UNDER THE NEW REGIME
Despite the possible advantages of the
new direct access model of human rights administration,
there is still the concern of limited resources available
for the adjudication of complaints. In addition, the issue
of access to justice for litigants who cannot afford legal
representation is still of major concern under the new regime.
Indeed, the consequence of the OHRC no longer assisting
with applicants drafting or advancing the fact finding and
investigation aspects of the complaints process may have
the affect of adding to the existing barriers for individuals.
The OHRC promises a new system that is
sure to be both faster and promote an increased sense of
seriousness for the protection of individual human rights
in Ontario with more remedial recourse for applicants.
With only a few months of the new regime’s implementation
under way, it is difficult to measure whether its purpose
is having the effect it aims to achieve.
Nonetheless, for individuals, corporations,
and charities alike, the changes to the human rights system
in Ontario will be very important. This is especially true
for employers who must ensure that their employment practices
comply with the Human Rights Code.
As Christian Horizons illustrates,
charities with specific objectives that have the potential
to be discriminatory are at risk of becoming involved in
the human rights process. In light of this and the recent
changes to the human rights regime in Ontario, it will be
prudent for charities to work with their legal advisors
to review and update existing human rights policies and
implement proactive anti-discrimination practices.