Human Rights

Delays at Ontario human rights tribunal could undermine cases: lawyers

Canadian PressTHE CANADIAN PRESS

TORONTO — A shortage of adjudicators at the Human Rights Tribunal of Ontario (HRTO) is causing widespread delays that some lawyers say could undermine cases, prolong conflicts and discourage vulnerable people from seeking relief.

A notice on the tribunal's website says the dearth of adjudicators is affecting its ability to meet its service standards, noting complainants may have to wait longer than usual before mediation or a hearing.

Meanwhile, the tribunal reported last fall that it had seen an unprecedented 25 per cent increase in its caseload in the previous year and a half, and currently receives roughly 4,500 applications annually.

A spokesman for the Ministry of the Attorney General, which oversees the province's 19 tribunals, said recruitment is underway to fill vacancies but did not give a timeline for the appointment process.

Brian Gray said there are currently 17 full-time vice-chairs, one part-time vice-chair and 22 part-time members at the tribunal.

Adjudicators — which include members or the more senior positions of vice-chair — carry out dispute resolution through mediation or hearings. The human rights tribunal is an independent body that deals with applications related to discrimination and harassment under the Ontario Human Rights Code.

The tribunal is uniquely equipped to handle these complex and sensitive matters and the only avenue to obtain public interest remedies, human rights lawyers say, adding it must be given the resources to carry out its mandate in a timely fashion.

In an interview with AdvocateDaily.com, Toronto human rights lawyer Sean O’Donnell says he’s already experienced delays with his own clients.

O’Donnell, principal of SJO Legal, says one client’s application was filed on Oct. 2, 2018, and he just received notice of mediation, which is scheduled for June.

“It’s unusual to have an eight-month period between the filing of the application and the mediation,” he says. “I shudder to think about when the actual hearing will take place.”

O’Donnell says he’s concerned about access to justice and wonders why steps weren’t taken earlier to recruit additional adjudicators.

“Why is the Ontario government dragging its heels when surely they knew a crisis was looming?”

He says added delays will hurt those who turn to the tribunal for relief.

“Human rights claimants are real people, with real financial pressures,” says O’Donnell. “Being out of work — and possibly unable to mitigate their damages because a disability prevents them from working — is a real problem for them and their dependents. The sooner their cases are resolved, the better.”

He says people often turned to the HRTO instead of the courts because of expediency.

“If it’s no longer a benefit, we may see more human rights claims brought to the courts, which have their own backlogs,” says O’Donnell.

“Employers must be thrilled about this news,” he says. “If the HRTO process drags out over a long period of time, the resolve of the employee can be weakened due to financial strain and/or the mental stress of being a litigant. This leads to abandoned applications and/or diminished financial settlements.”

Janina Fogels, senior legal counsel at the Human Rights Legal Support Centre, said the agency started tracking delays and cancellations in its cases before the tribunal last summer after learning of the shortage in adjudicators.

Since last August, 18 of its clients' mediations have been cancelled or rescheduled, and one hearing has been cancelled, she said. There have also been longer waits for interim and final decisions, she said.

"It draws out the conflict, that would be conflict between employees and employers, sometimes people who are still in the same workplace ... which potentially can make conflict fester,'' Fogels said.

"We're definitely concerned about the impact on the claimants who are hoping for a timely resolution to the discrimination they've experienced ... We're concerned when any dispute resolution system is backlogged but especially one that affects people's dignity, their livelihood, their ability to get on with their lives.''

Kelly Doctor, a partner at the law firm Goldblatt Partners, said she recently received an email advising her that the tribunal no longer had the resources to hear a preliminary motion that had been set for this month.

"We had been waiting a while for that hearing date,'' she said. "Now this case is on hold indefinitely. ... We're not even at the stage of having everyone sit down and go to mediation, let alone the stage of having it proceed to a hearing so it's really sort of making things drag on and it's problematic.''

Such delays can put a lot of strain on complainants, both emotionally and financially, she said. In some cases, people have lost their jobs due to discrimination and can face real economic pressure until their case is resolved, she said.

These setbacks can also undermine public confidence in the system, she said.

"If they see the human rights tribunal as being an ineffective place to resolve their disputes I think it could result in people not filing claims,'' Doctor said.

What's more, if respondents know the case likely won't come before the tribunal for years, they can use that to pressure complainants to accept less money or drop their claims, she said.

Adam Savaglio, a Hamilton-based lawyer, said that because the tribunal has specific expertise, more people are turning to it for relief in cases involving sexual assault and other issues where a broader remedy is sought.

But delays caused by understaffing can compromise complainants' ability to preserve and present evidence, he said, noting memories may become less clear and witnesses harder to find.

"It speaks to procedural fairness and the right to a timely hearing, those are two fundamental principles of our system,'' he said.

Peter Rosenthal, a recently retired lawyer who was also an adjunct professor of law at the University of Toronto, said the maxim "justice delayed is justice denied'' is particularly applicable in cases involving human rights.

"Many complainants need to have the matter resolved so that they can get on with their lives,'' he said in an email.

"Even before the recent shortage of adjudicators, the time to resolve complaints was longer than it should have been. It must be very upsetting for complainants to be told that their scheduled hearing or mediation must be postponed,'' he said.

Rosenthal added that there was no shortage of potential part-time adjudicators.

The governing Progressive Conservatives have consolidated the province's tribunals, including the human rights tribunal, under one organization, a decision that took effect on Jan. 1.

Vanessa Campbell, a spokeswoman for the human rights tribunal, said all of the tribunals will be reviewed "to identify areas for improvement to make services more streamlined, cost-effective and efficient.''

– with files from AdvocateDaily.com

© 2019 The Canadian Press

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