Law Times

March 1, 2010

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Law Times • march 1, 2010 Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. BestCase includes: • Canadian Criminal Cases • Dominion Law Reports • Labour Arbitration Cases • Land Compensation Reports • Ontario Municipal Board Reports • All-Canada Weekly Summaries • Canadian Labour Arbitration Summaries • Weekly Criminal Bulletin • Canada Law Book's Western Digest Services Focus On LABOUR & EMPLOYMENT LAW Contact your Account Manager for pricing and more information www.canadalawbook.ca • 1-800-263-2037 Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 gime, the human rights system is putting its reputation for backlogs and long lead times behind it as a more focused ap- proach helps to cure notorious delays. There was great hope when the new human rights code was passed in mid-2008 that the change from an investiga- tive model at the Ontario Hu- man Rights Commission to a direct-access dispute resolution model at the Ontario Human Rights Tribunal would give it the ability to cope with its workload more efficiently and reduce lead times. It used to be the case that a human rights complaint could take up to sev- en years to get a hearing date, but not anymore, according to David Wright, the interim chairman of the tribunal. Wright happily boasts that if a matter doesn't settle at mediation, it now takes about a year to reach a hearing. "In the original targets, there was the hope that there would be mediation and/or resolution of a significant number of cases in six months. Six months is a challenge right now, but we are certainly seeing many cases that are in and out in a year." Changes in the process are to be credited with much of the improvement despite lingering concerns over the large number of self-represented applicants as the Human Rights Legal Sup- port Centre deals with a huge caseload of people looking for help. "The process before June 30, 2008, was very different," Wright explains. "We don't do the kind of investigation that was done by the commission. It is a much more traditional adversarial model." "The process is so different that it's like comparing ap- ples and oranges," says David Draper, the tribunal's executive director. There is a strong em- phasis on information up front, for example. The legal support centre, which is a separate or- ganization, gives legal advice and assistance to complainants. "There was definitely an issue around people knowing their rights," Draper confirms. "The centre is very well-used." When a new application comes in, the tribunal begins a screening process, which in- Reform delivers relief at human rights tribunal E No more photocopying required to get copies of decisions exactly as they appear in a law report! Only on BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). BestCase now allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. BY JUDY VAN RHIJN For Law Times NEW! Disburse your costs ighteen months after the Ontario Human Rights Code imposed a new re- volves a review to see if the matter is within its jurisdiction. It doesn't Canada Law Book is A Division of The Cartwright Group Ltd. 6/10/09 10:43:52 AM have jurisdiction if a remedy has been sought in court under s 46.1 of the code. "We clean up a lot of issues before the re- spondent gets involved," Wright points out. One step that cuts out a lot of extraneous litiga- tion is an inquiry into the existence of related proceedings. Draper says grievance cases are a regu- lar occurrence. "We look at the facts and see if they can be decided related in the proceedings or maybe the whole matter can be decided, then we consider whether the ap- plication to the tribunal should be deferred." Throughout the pro- cess, there is a heavy em- phasis on resolution. Af- ter the vetting process, matters move quickly into mediation if the parties agree. "It's easy to focus on hear- ings, but a lot of the best work is done at mediation," says Draper. "There is a lot of edu- cation because so many people are self-represented. The medi- ator says, 'Here's what the law is,' and there's room to broker a conversation with the re- spondent that might not have been happening before. If you make a mistake, it doesn't mat- ter because you're not yet at the hearing. There's also a chance to resume the relationship." The mediation settlement rate is approximately 65 per cent of the matters that go that route. It's a voluntary step, and some matters do bypass it and proceed straight to hearing via case management, which Wright admits is still present- ing some challenges. Wright believes that over time, the tribunal process has become less formal, less court- like, and more streamlined as it takes advantage of new powers to focus on key issues and to allow adjudicators to narrow the issues, decide the order for hearing the witnesses, and deal with other matters that affect the length of the hearing. "We give directions in advance set- ting out which issues need to be addressed and in what or- der," says Wright. currently The caseload the tribunal is carrying comprises three different groups. The first group, known as transition 'Six months is a challenge right now, but we are certainly seeing many cases that are in and out in a year,' says David Wright. cases, was still with the com- mission when the new regime began. The parties had the op- tion of moving to the tribunal during the six-month period between June 30 and Dec. 31, 2008. Slightly less than 1,000 cases made the jump. Roughly half of those applications have already concluded through set- tlement or decision. The second category is com- mission-referred complaints. These are the cases that were re- ferred to the tribunal under the old system. About 500 of those are still alive. "A lot of them are related cases, so there are really about 75," Wright says. "We're expecting to be through them by the end of the next fiscal year." The third group comprises new applications received since June 30, 2008. Between that date and Dec. 31, 2009, there were almost 4,500 applications. "The projections were 3,000 a year," says Draper. "Just looking at the way the numbers are shak- ing out, we are somewhat ahead of that, about 3,500 per year. Seventy per cent have raised an issue of employment. Twenty per cent involve goods, services, and facilities, and 5 1/2 per cent involve housing matters. "We are not really mature yet in terms of caseload with the new cases," he says. "But we have closed 1,400 cases, so we are working through a signifi- cant number in a timely way. Other tribunals, like landlord and tenant or social benefits, have always done a number of hearings a day, but that was www.lawtimesnews.com all_LT_May25_09.indd 1 5/20/09 3:13:35 PM not the culture here at all. It is a common occurrence now to take one day or less as opposed to 10 to 12 days." Another benefit of the faster process is the development of jurisprudence around human rights. "In 2009, there were over 3,000 detailed decisions, interim and final, on process as well as substantive issues which are all available to the public," says Wright. "In the old sys- tem, there were well under 100 decisions a year." Out in the court system, employment law media- tors like Barry Fisher are seeing more human rights claims attached to civil cases. "There has to be a stand-alone civil right, but it's not that hard to find one," says Fisher. "It is then a strategic choice whether to separate the two. Most represented clients won't because it doubles the proceedings and because there are no cost awards at the tribu- nal. That is a huge disin- centive for plaintiffs." Fisher has observed a developing trend in which lawyers launch hu- man rights complaints within civil claims while self-represented appli- cants go to the tribunal. "There is more work to do at the tribunal, but it is just form filling. It doesn't require the same knowledge of legal proceedings as the court system." From a mediation view- point, he finds the new regime much simpler. "We used to in- clude the human rights issues in civil mediation over wrong- ful dismissal because you didn't want to settle half a case, but there was a lot of bickering back and forth and threats to bring motions. That has all disappeared because now it is permissible to tag those issues along." LT Ball&Alexander Excellence in Employment & Labour Law • Counsel in Leading Cases • • Authors of Leading Text • Wrongful Dismissal Employment Class Actions Labour Relations Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Employment Standards Disability 82 Scollard Street, Toronto, Canada, M5R 1G2 Phone: (416) 921-7997 Fax: (416) 921-3662 web: www.staceyball.com www.kenalexander.ca all & Alexander Barristers & Solicitors Speeding up hearings after years of backlog and delay PAGE 9

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