A major complaint about Ontario’s human rights system is that it provides alleged victims with certain advantages over the purported wrongdoers.
Chief among the complaints is that applicants can receive free legal help from the Human Rights Legal Support Centre while respondents must fund their defence themselves. The thinking, of course, is that the alleged victims often come from a place of vulnerability in cases such as workplace discrimination. They’re not likely to have the funds to pay a lawyer whereas an employer probably will.
An illustrative case was the matter of
Saadi v. Audmax. In that case, the Human Rights Tribunal of Ontario ordered the employer to pay an employee $36,000 for discrimination that, among other things, related to restrictions on heating up allegedly smelly foods in the workplace microwave. The Divisional Court later tossed the ruling over concerns about the adjudicator’s process, but the employer almost lost her house in the meantime as a result of efforts to collect the money. The employer represented herself while the applicant had help from the legal support centre.
So it was good to see lawyer Andrew Pinto take a stab at the issue in his recent review of reforms to the human rights system. In a report released this month, Pinto called on the Ontario Human Rights Commission to start providing summary advice to respondents on human rights issues.
To be sure, the recommendation wouldn’t be an easy one to implement. As an organization that has traditionally worked more on the side of alleged victims, it would be a shift for the commission to start helping respondents. As Pinto noted, issues of conflicts of interest could arise should the commission later find itself involved in a matter after providing summary advice. As a result, it would have to implement policies and safeguards to avoid such quagmires.
Pinto’s idea is, however, a useful one. As he noted, “it is nevertheless in everyone’s interests that respondents also receive expert and timely advice with respect to human rights disputes, particularly if proactive advice could prevent human rights disputes from festering, resulting in applications being filed at the tribunal.”
There’s no doubt that respondents already have some tools at their disposal to mitigate their exposure to inappropriate claims, particularly through the tribunal’s ability to dismiss cases fairly quickly. But as we’ve seen, problematic cases still get through and sometimes result in unfair awards. Pinto, then, was right to call for a mechanism to provide more balance.
— Glenn Kauth
