Commission Gatekeeper Model Versus the Privatization and Professionalization of Human Rights

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Commission Gatekeeper Model Versus
The Privatization and Professionalization of Human Rights

(Commission Gatekeeper Model)

  • Ontario Human Rights Code enacted in 1962, the first Human Rights Code in Canada. The Ontario Human Rights Commission (OHRC) was established in 1961 to administer the Code.
  • Individual complaints must be filed with the OHRC. The Commission may initiate a complaint on its own or at the request of any person. In 2003/2004, the Commission received over 70,000 inquiries and 2450 new complaints.
  • The Commission has responsibility for intake, mediation, investigation, conciliation and deciding which unresolved complaints will be referred to the Human Rights Tribunal of Ontario.  It has carriage of all complaints before the Tribunal .
  • Only complaints referred by the Commission can be heard by the Tribunal.  Complainants do not have an independent right of access.
  • The Commission has the power under s. 34 to dismiss a complaint without investigation for a variety of reasons.  Reconsideration of this decision can be requested by the complainant or respondent, but there is no appeal. In 2003/2004, 12% % of closed files were dismissed dismissed under s. 34.
  • Mediation services are provided before investigation is started.  Mediation is voluntary and confidential.  In 2003/2004, 38% of closed files were settled through mediation and an additional 13% of closed files were otherwise resolved between the parties.
  • If a complaint is not resolved or settled through mediation, the Commission will investigate the complaint and attempt to reach a settlement through conciliation following the disclosure of the investigator’s findings.  In 2003/2004, the average age of complaints in the investigation stage was 17.5 months.
  • Where conciliation is not successful, the Commission may refer the complaint to the Tribunal. A party can ask that a decision to refer or to dismiss a complaint at this stage be reconsidered.  There is no appeal of the decision.
  • In 2002/2003, a total of 58 complaints were referred to a hearing, comprising 2.97% of all complaint files closed.  In 2003/2004, the referral statistics were unusual in that a group of 200 complaints were sent to the Tribunal to be heard together, in addition to 88 other complaints referred to a hearing. The 89 new hearings represented just over 4% of a total of 2038 closed files.
  • At a hearing before the Tribunal, the Commission has carriage of the complaint and the complainant has the right to have independent counsel.  There is a full right of appeal of a Tribunal’s decision to the Divisional Court.
  • The Commission has responsibility for public education and human rights promotion.

(Direct Access Model of Privatization and Professionalization)

107, the Human Rights Code Amendment Act, which passed in December 2006, will overhaul the human rights system in Ontario. Allegations that the Human Rights Code has been violated will proceed directly to the Human Rights Tribunal of Ontario for a hearing and a new Legal Support Centre will assist litigants. In addition, the legislation makes significant substantive changes including a longer limitation period, a removal of the cap on damages for mental anguish, a new power of courts to award damages for human rights violations, and a change in the standard of judicial review.

It represents:

  • A privatization of complaint carriage –
  • An enhanced role for specialty legal clinics,
  • The off-loading of a public mandate onto the not-for-profit sector, and
  • A distinct move towards formalization of human rights complaints.
  • A professionalization of the operational systems of human rights.

Preliminary research indicates there are two areas of potential concern:

1)             The new system may represent the premature legalization of individual and social harms. (Administrative systems have the unique capacity to address multi-faceted social issues with a broad range of processes, those both rule and policy-based and those left to discretionary decision makers. It is possible and perhaps desirable to achieve administrative fairness without formalism.)

2)             The second concern is one of access to justice, which, similarly, ought not to require formal processes for its assurance. Citizens will now be reduced to either retaining legal counsel themselves or relying on a legal clinic, should one be available within their locale. This limits access to justice to those who live in larger urban centres. Citizens elsewhere are losing an invaluable government service for rights enforcement.

The ‘Hindsight’ Question:

1)             Is (was) the “gatekeeper” disparagement of the Commission a system challenge or a             jurisdictional conflict between institutional and legal experts?

Some research has identified a surprising and frequently conflictual relationship between the OHRC as an institutional body and the conscious efforts of human rights lawyers to deploy their expert knowledge and make jurisdictional claims. While we might anticipate a community of interest between human rights lawyers and the Human Rights Commission, their divergent interests in how to define and achieve discrimination-free equality of opportunity situates them oppositionally. Furthermore, as a practice community, the professional goal of ensuring a structural role for independent lawyers in the complaint process reinforces their ideological analysis that the OHRC is failing in its social justice mandate. These perspectives infuse their interactions with individual clients and with Commission staff. Rosanna Langer, has concluded that these intermediaries have multiple layers of motivation as they negotiate the boundaries of complaint administration.

One attraction of the Commission processes as it was configured is the assurance of neutral (non-advocate, non-adversarial) communicative interactions which open up the possibility for contextual problem-solving. Skip this step and you are before an adjudicator, where issues are rarely resolved, but rather ruled upon, representing both a disempowerment of the parties, and a considerably narrower constellation of remedies, none of them necessarily engaging the public interest. Characterized in this way, one can argue that the decoupling of the individual complaint from the other Commission functions will result in undermining public interest goals by encouraging a privatized view of wrongs which impact not only the individual, but also the workplace environment and the public atmosphere more broadly.

Without gloss over the issues of gatekeeping and delay that certainly reveal the limitations of the system as currently conceived, it must still be acknowledged that the commission system cannot be expected to bear the full weight of responsibility for achieving anti-discrimination social goals. Government-sponsored anti-discrimination enforcement must be situated within a broader set of common practices such as municipal accessibility plans, e.g. those stipulated under the Ontarians with Disabilities Act, progressive employment legislation, in-house corporate and employer anti-discrimination and anti-harassment ‘best practices,” and community-based educational initiatives. A healthy network of anti-discrimination practices is the best insurance of a vital normative fabric of human rights protections. This reasoning calls for expanding not diminishing them.  (Reference – Rosanna Langer, Ph.D., Laurentian University, Law and Justice Dept.)

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