The Human Rights Tribunal of Ontario () is an administrative tribunal in the Canadian province of Ontario that hears and determines applications brought under the Ontario Human Rights Code, the provincial statute that sets out human rights in Ontario.
It is one of the 12 adjudicative tribunals overseen by the Ministry of the Attorney General that make up Tribunals Ontario. Any person who believes they have been discriminated against under the Human Rights Code may bring an application to the Tribunal.
History The Ontario Human Rights Code was the first law of its kind in Canada. It took effect on June 15, 1962, bringing together various laws dealing with different kinds of discrimination, and adding some new protections.
The Ontario Human Rights Code of 1962 replaced the province's existing anti-discrimination legislation, including: Fair Employment Practices Act, 1951 which prohibited discrimination based on race and religion in employment; Female Employee's Fair Remuneration Act, 1951 which prohibited an employer from paying a female employee less money for the same work done by a man in the same establishment Fair Accommodation Practices Act, 1954 which prohibited discrimination in public places on racial, religious or ethnic grounds; Ontario Anti-Discrimination Commission Act, 1958 which created a commission to administer the above acts and develop educational programs; The Ontario Human Rights Commission was created to administer the Ontario Human Rights Code.
Current structure
Ontario Human Rights Commission ("OHRC")
Since June 30, 2008 all new complaints of discrimination are filed with the Human Rights Tribunal of Ontario. However, the OHRC has the right to be informed of all applications before the HRTO and receives copies of all applications and responses.
In matters affecting broad public interest, the OHRC may take its own cases to the Tribunal or intervene in human rights cases before the Tribunal. The OHRC also develops policies and provides targeted public education, monitors human rights, does research and analysis, and conducts human rights inquiries.
Human Rights Legal Support Centre The centre offers human rights legal services to individuals who file applications with the Tribunal. Services may include legal assistance in filing applications, providing advice, and legal representation at mediations and hearings.
The centre does not provide legal services to respondents and only represents 12% of applicants before the Tribunal. Services are prioritized, especially full representation, to clients who are particularly disadvantaged and who would have difficulty navigating the human rights system without assistance. Applicants with unmeritorious cases or who could otherwise afford legal representation are not represented.
Human Rights Tribunal of Ontario ("HRTO") This administrative tribunal determines whether or not an applicant's rights have been violated. The tribunal is aimed at providing quick and direct access for applicants and a fair dispute resolution process for all parties, including respondents.
The tribunal is able to handle a large volume of complaints without accumulating a backlog, applications are processed quickly, there is high level of transparency to the tribunal's decision-making. Transparency is achieved through the public availability of procedural and substantive written decisions. There is a significantly greater volume of final decisions decided on their merits; the tribunal's rulings on discrimination appear impartial; and public interest remedies are routinely awarded where discrimination is found.
Criticisms of the tribunal include: Unnecessary complexity in forms Insufficient use of mediation Low general damage awards Complex procedures and processes
Process An individual who has experienced discrimination may file a claim with the Human Rights Tribunal of Ontario. Applicants to HRTO may be eligible for legal assistance from the Human Rights Legal Support Centre. The parties can choose to first attempt to resolve the matter through mediation. If the mediation is unsuccessful or if the parties choose not to attempt mediation then a preliminary hearing may be ordered if, for example, there is a question as to whether HRTO has jurisdiction to decide the allegations. A summary hearing may be ordered if there appears to be no reasonable prospect that the application can succeed.
Hearings before HRTO are legal proceedings. Within 21 days after receiving the notice of hearing, the parties must provide each other with disclosure, with any documents that are relevant to the application with the other party. No later than 45 days before the hearing date, parties must: Send the other party a list of witnesses, a statement of each witness' intended evidence, and a list of documents that will be presented at the hearing. If documents have already been provided to the other party, they do not need to be sent again. Send HRTO the witness list, witness statements, and copies of all documents that will be used at the hearing. Prior to the hearing, the adjudicator will give the parties the option of trying mediation/adjudication. If they agree, the adjudicator will work with them to attempt to resolve the dispute through mediation. If it is not successful, the hearing will proceed with the same adjudicator, who will not consider anything heard or said in the mediation. The adjudicator will hear the evidence of both parties before making a decision.
Although the Ontario Human Rights Code says that HRTO's decisions are final and binding on the parties, HRTO may agree to reconsider a final decision if: a party has new facts that were not available at the time of the hearing which could change the result of the HRTO's decision a party did not receive notice of the hearing and was unable to participate, through no fault of the party the decision conflicts with the HRTO's procedure or case law and involves a matter of general or public importance There is no right as a matter of law to appeal a HRTO decision. However, under limited circumstances, a dissatisfied party may make a request for judicial review to the Ontario Superior Court of Justice. Judicial review will only be granted if the court is satisfied that the decision is unreasonable. This does not mean that the court merely thinks that HRTO could or should have decided differently.
Standard and burden of proof In cases before the Ontario Human Rights Tribunal, the ultimate standard of proof is the civil standard, which is on a balance of probabilities or "more likely than not". This in comparison to the standard of proof that applies in criminal cases, which is guilt beyond a reasonable doubt. The burden of proof rests on the party making the allegations.
As in criminal cases, it is possible to found a finding on significant or wholly circumstantial evidence. In circumstantial cases, well-established principles apply in the human rights context: Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation; the respondent must offer an explanation which is credible on all the evidence. A complainant is not required to establish that the respondent's actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case. There is no requirement that, the respondents' conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation. The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
Notable rulings and case law Due to restructuring in 2008, all applications made after June 30, 2008 are filed with the Ontario Human Rights Tribunal; prior to that date, applications were filed with and heard by the Ontario Human Rights Commission.
Public services, goods, facilities The Ontario Human Rights Code provides that "[e]very person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability."Human Rights Code, R.S.O. 1990, c. H. 19, s. 1. Retrieved 2017-02-08. The terms "service", "good", and "facility" are not defined in the Code. In Gay Alliance Toward Equality v Vancouver Sun the court referred to services as "matters such as restaurants, bars, taverns, service stations, public transportation and public utilities".Gay Alliance Toward Equality v. Vancouver Sun, 2 S.C.R. 435 at p 455, 1979 CanLII 225 (SCC). Retrieved 2017-02-08 More specifically, in Ontario, determinations of something constituting a "service", "good", or "facility" include: membership on amateur sports teams,Re Ontario Women's Hockey Association et al. and Ontario Human Rights Commission et al. (1987), 59 OR (2d) 492, 1987 CanLII 4074 (ON SC). Retrieved 2017-02-08Casselman v. Ontario Soccer Association (1993), Board of Inquiry, BOI 93-054. Retrieved 2017-02-08 police searches of detainees,Nassiah v Peel (Regional Municipality) Services Board, 2007 HRTO 14, HR-0954-05 (CanLII). Retrieved 2017-02-08Forrester v. Peel (Regional Municipality) Police Services Board et al, 2006 HRTO 13, HR-0583/584-04 (CanLII). Retrieved 2017-02-08Kampe v. Toronto Police Services Board, 2008 HRTO 304, HR-1386-07 (CanLII). Retrieved 2017-02-08 admission to a private post-secondary college,Brown v. Trebas Institute Ontario Inc., 2008 HRTO 10, HR-0934-05 (CanLII). Retrieved 2017-02-08 and admission to a movie theatre.Turnbull v. Famous Players Inc., 2003 HRTO 10, BI-0235-99 to BI-0239-99 (CanLII). Retrieved 2017-02-08.
Racial profiling and discrimination Nassiah v Peel (Regional Municipality) Services Board (2007)
Ms. Nassiah filed an application under the Ontario Human Rights Code alleging that she had been discriminated against in respect of services because of her race with regard to a police investigation into an allegation of shoplifting.
The investigating officer was found to have discriminated against Ms. Nassiah when he asked if she spoke English on the basis of her skin colour, used an offensive and profane term to refer to her and threatened to take her to jail, and engaged in a prolonged and heightened investigation whereby Ms. Nassiah was treated with a greater degree of hostility and investigation because she is black, which constituted racial profiling. The commission wrote:
"Racial profiling is a form of racial discrimination. There is nothing novel in finding that racial profiling is contrary to the Human Rights Code... It is and always has been contrary to the Code for the police to treat persons differently in any aspect of the police process, because of their race, even if race is only one factor in the differential treatment. What is new (in the last two decades) is the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual "bad apples" but part of a systemic bias in many police forces. What is also new is the increasing acceptance by the Courts in Canada that racial profiling by police occurs in Canada and the willingness to scrutinize seemingly "neutral" police behaviour to assess whether it falls within the phenomenon of racial profiling."Nassiah v Peel (Regional Municipality) Services Board, 2007 HRTO 14 at paras 112-113, HR-0954-05 (CanLII). Retrieved 2017-02-08