The Ontario Human Rights Commission http://www.ohrc.on.ca/
Overview: Ontario Human Rights Commission • Ontario's Human Rights Code, the first in Canada, was enacted in 1962. • The Ontario Human Rights Commission was established in 1961 to administer the Code. • The Commission's mandate under the Code includes: • investigating complaints of discrimination and harassment; • making efforts to settle complaints between parties; • preventing discrimination through public education and public policy; and • looking into situations where discriminatory behaviour exists.
PROTECTED AREAS The Code protects people in Ontario against discrimination in: • employment • accommodation • goods • services and facilities • membership in vocational associations and trade unions
GROUNDS FOR ACTION There are sixteen grounds of discrimination under the Code: • race • ancestry • place of origin • colour • ethnic origin • citizenship • creed (religion) • sex (including pregnancy) • sexual orientation • handicap • age (18 to 65 in employment, and 16 and over in occupancy of accommodation) • marital status • family status • same-sex partnership status • receipt of public assistance (in accommodation only) • record of offences (in employment only)
Discrimination vs. Harassment Discrimination: Any practice that would deny an individual rights or opportunities available to other members of society, inspired solely by the fact that the individual is a member of a protected group. Discrimination may arise as a result of direct differential treatment or it may result from the unequal effect of treating individuals and groups in the same way. Formal Equality: Treating people in the exact same manner, regardless of any differences that might exist between them. Substantive Equality: Treating people differently so as to provide them equality of opportunity. Harassment: Any practice that would expose or subject an individual to unwelcome and undesirable behaviour (to which other members of society are not usually exposed), inspired solely by the fact that the individual is a member of a protected group.
RESTORING RIGHTS • The Commission investigates and tries to resolve complaints. • A customer or employee of any organization covered by the Ontario Human Rights Code can file a complaint with the Commission. The aim is to restore the complainant's rights. • If the complaint falls within the Commission's responsibility, an investigator will be given the task of gathering the necessary information and making a full report to the Commission.
Who Are the Commissioners? • There is a full-time Chief Commissioner • There are 12 part-time Commissioners. • Commissioners are appointed by Order-in-Council. Staff of the Commission is appointed under the Public Service Act.
COMPLAINT PROCESS Note: At each stage an attempt is made to settle the complaint. If not resolved, then it moves to the next stage. A complaint may also be dismissed at any stage. However, either party can appeal to a Board of Inquiry or a higher court. • There are eleven stages to the complaint process: • Contact • Filing Complaint • Serving the Responant • Section 34 Application • Mediation • Investigation • Conciliation • Analyses • Decision • Reconsideration • Tribunal
1. Contacting Inquiry Services Any person in Ontario who wishes to make a Code-related complaint about discrimination or harassment to the Commission has the right to do so. (If a person believes he or she has been discriminated against, that person may contact the Commission’s general inquiry line toll free at any of the telephone numbers here from Monday to Friday between the hours of 8:30 and 5:00 Eastern Time.) Toll Free 1-800 387-9080 TTY 1-800 308-5561 In Toronto 416-326-9511 TTD 416 314-6526 A Commission staff person will tell the person whether the issue is covered by the Code. Commission staff will send out a Human Rights Complaint Form. (Along with a sample complaint and Guidelines for completing the form.)
2. Making the Complaint In most cases, the person making the complaint will complete the form listing all facts relevant to the complaint, sign it and return it to the Commission. If he or she has difficulty drafting the complaint or is unable to draft the complaint because of a literacy, cultural or language barrier or because of a disability, the Commission will provide assistance or will draft it for the person. For persons with disabilities, all materials will be available in electronic text, large print or audio format upon request. The Commission may also refer the person to a community agency, such as a legal clinic or a cultural or ethnic community organization, that may be able to provide other assistance.
3. Serving the Respondent Once the complaint has been signed and returned to the Commission, Commission staff will review it to make sure it meets Commission standards and may contact the complainant for further information. The Commission will then register and “serve” the complaint by sending it to the person(s) or representative(s) of the organization that the complaint is about (the respondent(s)). The complaint is usually sent by Priority Post or courier, delivered in person or, in some cases, by ordinary mail or by any means that will reach the respondent(s). The respondent is requested to provide a response in writing within 21 calendar days. The response should reply to the allegations set out in the complaint and may include documents that are relevant to the complaint. The response (and any attachments) will be shared with the complainant.
4. Some complaints are not dealt with (Section 34) • The Code does not require the Commission to deal with all complaints. Section 34 of the Code provides the Commission with the discretion, in limited circumstances, to not deal with a complaint. The Commission could decide to not deal with the complaint if it is of the opinion that it: • could be more appropriately dealt with under another piece of legislation; • is trivial, frivolous, vexatious or made in bad faith; • is not within the Commission’s jurisdiction; or, • is based on occurrences that are more than six months old. • The person making the complaint can ask the Commissioners to reconsider this decision by filing an application for reconsideration within 15 calendar days.
5. Mediation The Commission is impartial and does not take sides in the complaint. Commission staff will work with both parties to try to settle the dispute if possible. Voluntary and confidential mediation services by highly trained Commission mediators are offered to both parties. If mediation leads to a settlement, both parties will be required to sign a written agreement and to abide by the terms of the agreement. Once the agreement is signed and approved by the Commission, the matter will be closed. If mediation is unsuccessful, if one party chooses not to participate in mediation, or the matter does not appear to be appropriate for mediation, it will be referred for investigation where an officer will be assigned to investigate the complaint. Any offers, discussion or information revealed during mediation is confidential will not be shared with the investigating officer.
6. Investigation The purpose of investigating a complaint is to try to get as clear a picture as possible of what happened. The investigation officer conducts an impartial investigation including interviewing witnesses and gathering documentary evidence. The findings of the investigation are shared verbally with both sides who are then invited to attend a conciliation meeting where the officer will try to get the parties to come to a settlement. Both sides to the complaint may consult with a lawyer or representative at any stage of the complaint process. However, the Commission will not provide lawyers or pay for any party’s legal costs other than its own.
7. Conciliation Conciliation is a process of discussing a settlement with parties after the investigation has been completed and the findings disclosed to the parties. If the parties come to a settlement, both will be required to sign a written agreement and to abide by the terms of the agreement. Once the agreement is signed and approved by the Commission, the matter will be closed. If the complainant refuses to accept a reasonable offer during conciliation, the Commission may decide not to send the matter to the Human Rights Tribunal. Information or documentation, including offers and other discussion during conciliation may be included in the final Case Analysis.
8. Case Analysis If conciliation is not successful, the findings of the investigation are prepared in writing and disclosed to both sides. The findings contain an analysis of the evidence and a recommendation by staff to refer or not to refer the matter to the Human Rights Tribunal. Both parties are invited to submit a response to the findings. 9. Commission Decision The Commissioners make the decision to send or not to send the complaint to the Human Rights Tribunal. A copy of the Commissioners’ decision in writing is forwarded to both the complainant and respondent. 10. Reconsideration The complainant can ask the Commissioners to reconsider within 15 calendar days. The Commission will consider the request, but at this point is final and there is no right to appeal by either party.
11. The Human Rights Tribunal The Human Rights Tribunal of Ontario (previously known as a “Board of Inquiry) hears evidence and decides whether or not discrimination occurred and what needs to be done to remedy the situation and prevent further discrimination. The Tribunal is independent from the Commission. (The Commission, the respondent and the complainant are each separate parties before the Tribunal.) The Commission is responsible for presenting evidence about the complaint to the Tribunal, although the complainant has the right to make separate submissions. The Commission does not represent the complainant or the respondent at the Tribunal. The respondent and the complainant may each retain their own legal counsel. Any party to a complaint may seek to appeal a decision of the Tribunal to a higher court.
Possible Remedies The goal of the tribunal is generally the restoration of human rights. Thus, if a complaint is settled or if a tribunal rules that discrimination has taken place, those responsible may be required to: • end the discrimination; • establish programs to correct unfairness; • produce a plan to correct discriminatory practices; • compensate for lost wages or hurt feelings; • pay other costs of settling the complaint. Under the Commission's new service delivery model, it is projected that approximately 35% of the case openings each year will be referred to investigation. Approximately 4% of the total number of cases closed each year are referred to the Board of Inquiry.