Law Times

PAGE 12 FOCUS September 12, 2011 • Law timeS Is the human rights tribunal unfair? BY KENNETH JACKSON For Law Times I s the Human Rights Tribu- nal of Ontario unfair? The answer depends on who you ask. A recent survey of human resources employees found the majority said the tribunal doesn't offer a level playing field, at least when it comes to the treatment of employers. More than 75 per cent of the 235 respondents believed the tri- bunal tends to favour employees over their employers, according to the survey by the Human Re- sources Professionals Association. Topping the list of com- plaints, besides the perceived bias, were frivolous claims, how long the process takes, and the expense for employers. The latter has a lot to do with the fact that it costs employees nothing to file a claim and they don't have to pay expenses if they lose while the employer must fork out for legal costs and, po- tentially, damages. "The reverse burden of proof and the assumption of guilt on the part of the accused make it a kangaroo court that is a dis- grace to our justice system," said one unidentified human resources employee quoted in a press release and who partici- pated in the survey. Toronto employment law- yer Kevin Marshall appreciates where the human resource em- ployees are coming from. E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com "I can understand why there is that perception . . . but in terms of the actual decision- making process, I don't believe that is the case. I've found them reasonable to deal with," says Marshall, who often represents employees in such matters. He agrees it can be a "very slow" process. In fact, from the day a person makes a complaint, it can take two to four years for it to reach a tribunal. Out-of-court settlements usually take between one and two years. "There are a lot of appli- cants that really slow the process down," says Marshall, who notes that "unlike the courts, which require a fee, the tribunal has no stipulation. In fact, the tribunal has placed a bit of an advocacy roll on behalf of applicants, in- cluding employees, which makes these applicants more likely to apply than would be the case in the courts." As a result, Marshall says the tribunal appears to have become increasingly popular with appli- cants in the last few years, a situ- ation that presents challenges for employers. "Generally speaking, employers will use lawyers that tend to be high-priced. Just the Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM 'I think most human resource professionals and most of my clients certainly feel that the tri- bunal is a place you don't want to be,' says Malcolm MacKillop. mere fact there is an application, [employers] are already facing a losing proposition. It's just a question of degree." Employment lawyer Malcolm MacKillop, who has represented employers for more than 25 years, says he can also understand why some people might believe the tribunal is slanted but he doesn't believe that to be the case. "The survey results don't sur- prise me. I think most human re- source professionals and most of my clients certainly feel that the tribunal is a place you don't want to be. There is a perceived bias and a sense you don't know what the result will be. But let me say this to you: in my experience as counsel, I've had enormous suc- cess with the clients I have repre- sented . . . in that I have found the staff, once you get over the first step of what the claim is, I have found [they] are prepared to listen and that for the most part you can avoid costly litiga- tion if the parties are prepared to mediate disputes and be reason- able in their position." But MacKillop also points to the thousands of complaints that flow in every year as one of the major problems with the tribu- nal as "there is not enough staff to process these things." growing pains? Your disbursement investment needs are growing along with your practice but cash flow has become an issue. BridgePoint can help. We have designed a variety of flexible disbursement financing alternatives to help our law firm clients grow their practices while ensuring their clients realize the highest potential recoveries for their claims. In addition to our law firm and plaintiff lending services, we have financing partnerships with a growing roster of IME providers across Canada to offer deferred payment arrangements until settlement. Contact us to learn more and to arrange a presentation. 1 888 800 4966 | bpf in.com Untitled-1 1 www.lawtimesnews.com No Cost /Obligation Services www.henderson.ca | 1.800.263.8537 According to the survey, nearly 90 per cent of respondents agreed that the best way to fix the prob- lems would be to implement a mandatory pre-screening process for all complaints. Another 76 per cent thought the tribunal needs specially trained judges. About half would like to see a $10,000 cap on damages the HRTO can award for mental anguish. In addition, about half of re- spondents think their employ- ers shouldn't have to fund their defence when human rights complainants receive free legal assistance. For his part, Marshall says he's taking fewer human rights cases these days because of the problems and that if he does ac- cept one, he aims to settle at me- diation. Most lawyers, he adds, aim to mediate rather than push cases to the limit. "It tends to be a frustrating process just because it's very slow," he says. Despite the strong stance against the tribunal, not all re- spondents thought that way. Nearly one-quarter said the cur- rent system is satisfactory, while another 14 per cent weren't sure. But almost all of the respon- dents felt the government should undertake a review of the tribu- nal. Some even want the entire process dismantled. "The [tribunal] serves an im- portant purpose, but the repu- tation is it has a red carpet roll out for complaints and a built- in bias for the employer," said another unidentified respon- dent in the survey. Todd Humber, managing editor of Canadian HR Reporter, described the tribunal as a "high- stakes game of chicken" in a re- cent blog posting. "Workers can file nuisance claims using legal aid, without much risk, in the hope employers will pay the worker off — regard- less of the claim's merit — be- cause it's the cheaper and easier route to go," Humber wrote. LT Henderson Structured Settlements: Your Partners in Service® Proud Sponsor of 4/28/11 10:40:19 AM ntitled-11 1 9/21/10 2:45:22 PM

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• Rights Probes
• Echlins Legacy
• Focus On Human Rights Law