CAN THE ADMINISTRATIVE PROBLEMS AT THE HUMAN RIGHTS TRIBUNAL OF ONTARIO BE FIXED?
Tribunal Watch's most recent article about the administrative difficulties at the Human Rights Tribunal of Ontario confirmed my suspicions about why there is so much delay and such a lack of effective communication from HRTO. One of the statistics I found most shocking is that HRTO only published 16 decisions resulting from a full hearing in the year ending March 2022. When you consider that HRTO currently has a backlog of 9000 cases and are anticipating 3000 more cases to be filed each year what happens to the others? More importantly, how did the delay get to this point, what can be done about it and by whom?
HRTO closes approximately 3000 cases per year. This begs the question: What happened to the 2,984 cases from March 2021 to March 2022 that did not result in a written decision after a full hearing? According to Tribunal Watch:
"It appears that the primary backlog reduction strategy that the Tribunal has adopted is to develop new ways to dispose of cases following only a cursory review of the Application. The Human Rights Code requires that the Tribunal not dispose of cases that are within the Tribunal’s jurisdiction without an opportunity for an oral hearing. The Tribunal has significantly narrowed the interpretation of its own jurisdiction, allowing it to dismiss hundreds of cases without giving the parties an opportunity for an oral hearing. Many more cases have been abandoned because of the Tribunal’s delay."
Some cases are mediated, but there is no way to know how many as HRTO does not publish those statistics. At HRTO mediations I have attended with clients we have been told by adjudicators that if the case doesn't settle there may be a 2-year wait for a hearing date. This places an enormous pressure on Applicants to agree to a settlement as they often have already waited over a year for the mediation date.
Most of the cases brought to HRTO are related to discrimination in employment. Many HRTO applicants have lost their jobs for reasons related to discrimination and have been traumatized (or re-traumatized). They bring HRTO applications not only to get damages for themselves but also to help prevent others in the workplace from having to experience what they did. The way the process is now, even when the case results in a sizeable settlement, the claimants often do not feel that they were heard by HRTO or the employer and, as a result, feel that justice has not been done.
Mediations at HRTO take place virtually and each of the parties is placed in their own breakout room. The mediator, who often has little to no training in human rights, mediation or employment law, goes from room to room with monetary offers and counteroffers. I have noticed that some mediators are reluctant to address issues with employers related to making systemic changes to prevent future human rights infringements. Mediators also often pressure Applicants into signing non-disclosure agreements and non-disparagement clauses that prevent them from speaking about their experiences.
Tribunal Watch makes the following recommendations to the provincial government:
a) Acknowledge the problem of delay and appoint a specialized team to work out a plan to addressit who is given adequate resources;
b) Only appoint adjudicators who already have knowledge and experience in human rights, mediation and preferably employment law;
c) Appoint a community advisory counsel made up of stakeholder representatives to make recommendations to HRTO about how to improve efficiency and accessibility;
d) Ensure accurate, accessible and transparent communication with the public at all times.