1. Implementing the new Human Rights Code: The Tribunal’s Perspective David A. Wright Associate Chair, Human Rights Tribunal of Ontario – Social Justice Tribunals Ontario

2. Outline of Presentation  Some Numbers  Key Principles of the Dispute Resolution Model  Challenges and Adaptations  Questions/Challenges for the Future

3. Some Numbers

4. S. 34 Cases Resolved

5. Social Areas

6. Grounds

7. Decisions: S. 34 Applications *This includes cases dismissed under the summary hearing procedure **The HRTO no longer prepares a decision for each withdrawal, and most withdrawals are now confirmed by letter.

8. Mediations

9. Representation at Mediation: Applicants, 2011-12

10. Representation at Mediation: Respondents, 2011-12

11. Key Features of the Dispute Resolution Model

12. Applications and Responses  Forms are detailed, all facts and a theory of the case are required  Tribunal screens Applications and Responses and delivers them  Full response on the merits must be filed if the application is delivered and a response is required except in certain limited circumstances

13. Preliminary Issues  No entitlement to have preliminary issues decided in advance of the hearing or mediation  Issues other than jurisdiction that may result in dismissal of the application require oral submissions  Tribunal frequently raises issues on its own initiative

14. Initial Screening  Tribunal screens for completeness, jurisdiction, deferral  Dismissal for jurisdiction may occur following letter to and written submissions from the applicant only  Post 2010, Tribunal may also direct summary hearings, 45.1 hearings without requiring response

15. Mediation  Voluntary – agreed to in application and response and Tribunal may make calls to encourage mediation  Conducted by Tribunal members  Evaluative approach  Tribunal does not approve or track settlements

16. Hearings  Scheduled for up to three initial days  Pre-hearing preparation is key – detailed witness statements and documents to be relied upon must be filed 45 days in advance

17. Challenges and Adaptations

18. Social Justice Tribunals Ontario  As of March 2011, HRTO part of SJTO Includes Landlord Tenant Board, Social Benefits Tribunal, Child and Family Services Review Board, Ontario Special Education Tribunals  Under Adjudicative Tribunals Accountability, Governance and Appointments Act, common Exec Chair, accountability documents, etc.

19. Social Justice Tribunals Ontario  Goal of SJTO transformation is to redefine or redesign previously distinct individual tribunals into a single, integrated administrative justice organization, with recognizable component parts based, at least in part, on the original tribunals.

20. Social Justice Tribunals Ontario  \Common general rules, strategic cross- appointments, enhancement of adjudicator expertise through training will be among the first impacts on adjudication

21. Summary Hearings  The concern: no middle ground between dismissal for lack of jurisdiction and full oral hearing  Pre-hearing requirements disproportionate to the issues in some cases  Both applicants and respondents on Practice Advisory Ctte raised concerns

22. Summary Hearings  July 2010 Rule 19A introduced: 19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

23. Summary Hearings  Can be on the Tribunal’s own initiative or respondent request  If respondent’s request is rejected, no reasons  Heard by half-day teleconference in which the applicant goes first.

24. Summary Hearings Dabic v. Windsor Police Service, 2010 HRTO 1994: “In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

25. Summary Hearings In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.”

26. Hearings  Active approach identification and narrowing of issues, active questioning of parties balance can be difficult with a large percentage of self-represented applicants and respondents Different cases call for different approaches – balance of predictability, flexibility, individuality of adjudicators

27. Pellerin Pellerin v. CSDCCS, 2011 HRTO 1777  Reasonable prospect of success test extended to be used in appropriate cases during hearings  Maybe be considered after hearing some, but not all evidence  Move away from concept of prima facie case

28. Mediation  Standard length for s. 34 Applications changed from full day to half day in 2010  Little to no impact on settlement rate: approximately 60% on the day of mediation  1633 mediations held in fiscal 2011-12; 62% settled

29. Mediation-Adjudication  Rule 15A added and standard agreement developed to formalize mediation- adjudication  Frequently offered by the tribunal and requested by parties  High success rate

30. Litigation Guardians  No explicit power to appoint a litigation guardian in SPPA or Code  Use of s. 34(5) for substitute decision- making: Kacan v. OPSEU, 2010 HRTO 795  Common law power to appoint litigation guardian: Yuill v. CUPE, 2011 HRTO 126

31. Vexatious Litigants Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667  Applicant had filed 11 applications all dismissed, 4 no shows, used inappropriate language  Power to control process and prevent abuse of process allows for declaration requiring permission to commence apps

32. No Shows  Burden on respondent and tribunal when applicant fails to appear  Instituted practice of dismissing applications as abandoned if applicant fails to file documents after a reminder CAD  Lukusa v. Toronto Police Service, 2012 HRTO 2054

33. Questions/Challenges for the Future

34. Future Questions/Challenges  Detailed forms – balance of benefits/drawbacks for access to justice  Non-complying respondents after decision– no “breach of order” power in Code  Ensuring implementation of remedies for future compliance

35. Future Questions/Challenges  Hearings – continuing to strike appropriate balance between flexibility, predictability and consistency  Maintaining accessibility of process despite sometimes complex human rights concepts  Continuing to resolve disputes in a timely way in the face of budget constraints