Law Times

Law timeS • September 14, 2009 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On HUMAN RIGHTS LAW New human rights system speeds up cases but sees many unrepresented litigants cases is fi nding itself busy with scores of new complainants, many of them so far unrepresented by counsel. For many lawyers, the changes are High percentage of complainants without counsel A BY GLENN KAUTH Law Times year after the Ontario government overhauled the human rights sys- tem, the tribunal that handles tribunal. Its settlement rate at mediation is about 60 per cent. For tribunal chairman Michael Got- theil, the numbers show the organization is on track. "Within the fi rst six to seven months, positive. By providing Ontarians with di- rect access to the tribunal, rather than fi rst having to go through the Ontario Human Rights Commission, cases are proceeding more quickly. But the removal of the commission's mandate to represent complainants is a challenge, especially since 70 per cent of them now go to the tribunal without a lawyer. "Th ere's no question that for legal counsel, in terms of how we conduct our- selves, it puts you in a diffi cult situation in terms of dealing with unrepresented litigants," says Patty Murray, a lawyer with Hicks Morley Hamilton Stewart Storie LLP who handles human rights cases on behalf of employers. As a result, dealing with the other side over the phone or having an off -the-re- cord conversation may not be an option, she says. At the same time, Murray says she suspects the new direct-access system is behind a spike in the number of cases. "My sense is you're getting more people pursuing claims under the new process," she says. In its fi rst year, in fact, the Human Rights Tribunal of Ontario received 2,800 complaints in addition to 1,900 cases held over from the old system. It has held 650 mediation sessions and issued about 800 decisions, most of which were interim or- ders rather than fi nal dispositions. Th e goal is to dispose of the majority of cases within a year by having media- tion within three to four months of an ap- plication being fi led. If dispute resolution fails, the case goes to hearing. So far, com- plaints are going to hearing within six to eight months of fi ling, according to the we weren't really ramped up to capacity because the cases were at the early stage," he says. "Th e second year will give us a better indicator because that will give us a full year really ramped up." He says while the percentage of unrep- resented applicants is high, it is because the tribunal measures that statistic at the time a person fi les a complaint. Often, the Hu- man Rights Legal Support Centre will have complainants fi le their application them- selves if they appear able to do so and then come on as counsel later when the case goes either to mediation or a hearing. Gottheil says he doesn't believe having people appear without a lawyer is always a problem. "From my perspective, I'm absolute- ly encouraged in a way that there's such a high percentage of self-represented applicants because we built the model on . . . ensuring access for people who may be self-represented." So far, the tribunal has had to reject only 36 of 2,800 applications fi led be- cause they were incomplete, something Gottheil argues is an indicator that at least the early stages of the process are acces- sible to people without lawyers. As for the later stages, he's hopeful they will prove workable as well. "With respect to hearings, I hope that the outcomes are based on the facts and the law," he says. "We did a lot of training with our adjudicators. Our hearing model is an active model. So we hope that our model is one in which self-represented people can eff ectively participate." Still, some people are concerned. Margaret Parsons, executive director of the African Canadian Legal Clinic, be- lieves the new system puts victims of human rights abuses at a disadvantage compared to defendants, many of whom have greater resources. Th at's because, Squaring off against complainants without counsel is a challenge for law- yers representing respondents, Patty Murray says. under the new system, the commission can no longer represent complainants and investigate their cases. "We were told that individuals will get support from the legal support centre. . . . Th at didn't happen," she says. Parsons says the legal support centre is referring cases it can't handle to her clinic, something legal support centre executive director Kathy Laird denies. "I don't think it is happening. I don't think we're referring any cases to them. I know we don't because we want those cases," says Laird. She admits declining some cases but says the centre only does so based on the criteria it has established. "Th e people we turn away are higher- income people who have other resources, particularly if the case doesn't have mer- it." Parsons insists her clinic is getting re- ferrals, which she says is a symptom of a lack of resources and underfunding. "If you don't resource it properly, it's not going to work no matter what you do," she says, noting she won't take refer- rals anyway. "We have said to the legal support clinic, 'Do not send us your race cases.' We're sending them back. We're under-resourced as well." Th e changes to the system were contro- versial. Th ey were made in part to speed up a commission-led process that allowed cases to languish before the tribunal for years. Th e revamped system took away the commission's ability to investigate and argue individual cases in favour of allow- ing people to fi le complaints themselves with, if they qualify, the help of the legal support centre. Th e commission's role has been re- duced to one largely of public education and taking the lead on systemic cases of discrimination. For people like Parsons, the changes amounted to gutting the commission, particularly since it lost its investigators. Given the rearranging of the deck chairs, it's hard to tell how accurate that claim is, but it is true that the commis- sion's staff has gone down to 55 from 140 before June 2008. Some of those func- tions shifted to the legal support centre, which itself has a staff of about 25 lawyers and eight paralegals in addition to other employees, according to Laird. Nevertheless, commission spokes- woman Afroze Edwards says it has been busy pursuing its new role. For example, it recently fi led a complaint against tran- sit agencies in Hamilton, Sudbury, and Th under Bay over their lack of systems for announcing bus stops for blind pas- sengers. Th e move is controversial given the three cities all have plans to introduce automated systems to do so, but Edwards says the commission believes they should have the bus drivers call out the stops for now as an interim measure. Edwards says the commission has taken on the issue of assaults against Asian an- glers. As well, it recently launched a racism awareness campaign in Ontario schools. Part of the quid pro quo for human rights advocates in launching the new See Questions, page 13 PAGE 9 Looking for an easier way to attract attention? it's easy. www.lawtimesnews.com JobsInLaw_sailing_half.indd 1 11/5/08 2:50:47 PM

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• LSUC Honours
• The Hill
• Focus On Human Rights Law