Ontario Human Rights Commission

The Ontario Human Rights Commission was established in the Canadian province of Ontario on March 29, 1961 to administer the Ontario Human Rights Code. The commission is an arm's length agency of government accountable to the legislature through the Ministry of the Attorney General of Ontario.

The commission's mandate under the Code includes: preventing discrimination through public education and public policy; and looking into situations where discriminatory behaviour exists.

Since June 30, 2008, all new complaints of discrimination are filed as applications with the Human Rights Tribunal of Ontario. The Human Rights Tribunal of Ontario (HRTO) is an independent adjudicative agency of the Ontario government and is entirely separate from the Ontario Human Rights Commission (OHRC).

There is a full-time chief commissioner and a varying number of part-time commissioners, appointed by Order in Council. Staff of the commission is appointed under the Public Service of Ontario Act, 2006.

Barbara Hall was appointed chief commissioner effective November 28, 2005,^[1] replacing Keith Norton, who had led the Commission since 1996; Norton succeeded Rosemary Brown. The commission's first director, appointed in 1962, was Daniel G. Hill.

The mission

The Ontario Human Rights Commission is committed to the elimination of discrimination in society by providing the people of Ontario with strong leadership and quality service:

in the effective enforcement of the Ontario Human Rights Code; and

in the promotion and advancement of human rights.

Dismissing a Complaint

Under the Ontario Human Rights Code, the Human Rights Tribunal of Ontario (HRTO) may dismiss a complaint per s.45.1:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

2008 Complaint against Maclean's magazine

Main article: Human rights complaints against Maclean's magazine

In April 2008, the OHRC dismissed a complaint by the Canadian Islamic Congress against Maclean's, but issued a statement denouncing the article.^[2] In an interview, Hall stated that "When the media writes, it should exercise great caution that it's not promoting stereotypes that will adversely impact on identifiable groups. I think one needs to be very careful when one speaks in generalities, that in fact one is speaking factually about all the people in a particular group."^[3]

The editors of Maclean's denounced Hall and her staff for what they called the "zealous condemnation of their journalism" and stated that "[Hall] cited no evidence, considered no counter-arguments, and appointed herself prosecutor, judge and jury in one fell swoop." Maclean's also accused every human rights commission in the country for "morphing out of their conciliatory roles to become crusaders working to reshape journalistic discourse in Canada." Maclean's wrote that Ms. Hall's press release was "a drive-by smear," and "perhaps the greatest disappointment in this whole saga."^[4] Mark Steyn, who wrote the article in Maclean's that the complaint was based on, also sharply criticized Hall and the OHRC, commenting that "Even though they (the OHRC) don't have the guts to hear the case, they might as well find us guilty."^[5]

At a meeting of the Canadian Arab Federation on the day after the British Columbia Human Rights Tribunal heard the complaint, Hall served on a panel along with Khurrum Awan, one of the student lawyers who helped file the complaint who testified at the BC Human Rights Tribunal against Maclean's, and Haroon Siddiqui, editor emeritus of the Toronto Star. Hall joked to the audience that she could finally speak freely with her co-panellist Awan about his complaint. Awan praised Hall's condemnation of Maclean's, stating that he had difficulty developing support until Hall called Maclean's Islamophobic, and then "everyone wanted to be our uncle."^[6]

In a press conference on October 2, 2008, Tarek Fatah, a founder of the Muslim Canadian Congress, claimed that the Ontario Human Rights Commission (OHRC) had been "infiltrated by Islamists" and that some of its commissioners were closely linked to the Canadian Islamic Congress and the Canadian Arab Federation, both of which, according to Fatah, have "contempt for Canadian values."^[7]

Proposal for a National Press Council

In February 2009, in a report to the Canadian Human Rights Commission, the OHRC commented on the proposal to create a National Press Council that would serve as a national media watchdog. Unlike current press councils in Canada, membership to this proposed new council would have been required by all publishers, webmasters and radio and television producers.

No other steps were taken to implement the proposal.

Hall stated that such a council was necessary to protect human rights but insisted that such a body would not result in censorship of the media. She explained that the national press council would have the power to accept complaints of discrimination, in particular from "vulnerable groups" and although the council would have no power to censor media outlets, it could force them to carry the council's decisions, including counterarguments made by complainants.^[8][9]

Mary Agnes Welch, president of the Canadian Association of Journalists, stated that the current provincial press councils are "the only real place that readers can go to complain about stories short of the courts" but that they "are largely toothless and ineffective." However, she argued against a mandatory national press council, stating that:

"The provincial ones don't even work, so how could we have a national one? And I know a lot of journalists who would take umbrage at essentially being in a federally regulated profession.... If on the crazy off-chance that there is some momentum behind this idea of a national press council, it won't be coming from journalists."^[8]

The National Post strongly opposed the OHRC's proposal, arguing that a mandatory national press council "is merely the first step toward letting the Barbara Halls of the world decide what you get to hear, see and read." The Post also stated that Hall is a "pompous purveyor of social concern" who believes she "has the ability to judge which speech should be free and which not."^[9] Barbara Kay also strongly opposed Hall's suggestion, stating that her experience with the Quebec Press Council (QPC) was evidence that press councils are abused by those wishing to suppress the discussion of sensitive or controversial issues.^[10]

Case of Sharon Abbott

In November 2009, Sharon Abbott, a black female newspaper carrier, was awarded $5,000 by the Human Rights Tribunal of Ontario (HRTO) on the basis that she had been arrested by police in early 2007 only because of her skin colour. Although the HRTO found no evidence that the arresting officer "consciously subscribes to any such (racist) attitudes or belief systems" and that there was "no direct evidence that the complainant's race or colour was a factor in the incident," the HRTO claimed that the officer's actions were motivated by a deep-seated prejudice because, as the Tribunal claimed, white people in authority have "an expectation of docility and compliance" from black people they encounter. The conservative National Post sharply criticized this ruling and questioned how the HRTO determined that the "expectation of docility and compliance" is supposedly rampant in the minds of white people.^[11]

Shortly after the HRTO ruling, the Toronto Police Service announced that it is considering applying for a judicial review of the decision. Toronto Police spokesman Ali "the Tractor" Cerrato stated that the HRTO's decision makes any defence against a racial profiling allegation impossible, arguing that "This should scare anyone who could be on the receiving end of such an allegation because it doesn't seem as though you can defend yourself. In this case they decided the officer engaged in racist behaviour, I can't for the life of me figure out how they got to that conclusion. Most fair-minded people would say if the evidence is there, if the intent is there, then make your finding but in the total absence of evidence or intent, to do it on the basis of something that is unconscious, is very concerning."^[12]

Case against John Fulton

In 2006, a transgendered woman (now known as Lisa MacDonald) visited Downtown Health Club for Women in St. Catharines, Ontario and asked owner John Fulton for Membership. MacDonald explained that she was actually a pre-operative Male-to-Female transsexual who was in the process of undergoing as sex-change operation, but for the time being, still possessed male gentalia. Fulton explained his concern that with only one change room and shower room in the club, admitting this individual would have meant allowing a man to observe the other patrons—all female—in various stages of undress. Approximately one week later, the individual filed a human rights complaint with the Human Rights Tribunal of Ontario (HRTO) alleging discrimination.^[13]

Fulton, and his lawyer Andrew Roman, argued that the Ontario Human Rights Code specifically permits facilities to serve a single sex on the grounds of public decency, and ordains that such restrictions do not constitute illegal discrimination. They also argued that that admitting the complainant would violate the rights of club members to freedom of association under the Canadian Charter of Rights and Freedoms. Fulton also questioned how he was supposed to distinguish the applicant from a voyeur or an exhibitionist.^[13]

Fulton stated that he received calls from his members threatening to quit if the transgendered individual was allowed to join before the sex-change operation was completed. Fulton also claimed that the OHRC told him he had to let the transgendered individual use the women's facilities but refused to provide him with a clear answer on what his rights and the rights of his female clients are.^[14] Fulton also stated he never denied membership to the applicant and that she was welcome to use club once the sex-change operation was completed.^[15]

The case was scheduled for a hearing in late 2009. However, the individual then withdrew the complaint without explanation. As a result, Fulton was left with legal bills of roughly $150,000 and argued that he had been wrongly accused of being a discriminatory without being given a chance to respond. The Tribunal refused to compensate Fulton for any costs, stating that it lacked the authority to do so.^[13] In an interview with the St. Catharines Standard, Fulton stated that "They put me through hell for three years and at the 11th hour, they dropped it. There really was no resolution ... and my costs with this are huge."^[16]

In declining to provide award any costs to Fulton, The Human Rights Tribunal of Ontario's Alternate Chair Kaye Joachim wrote that:

• the HRTO had no authority to award costs;
• no costs against could be awarded against the complainant because Alternate Chair Joachim ruled that there was no abuse the complaint process;
• the complainant had "raised important and novel questions about the scope of the Code and its application to transgendered individuals.";
• Fulton and his lawyers "may have caused unnecessary legal costs by raising spurious preliminary issues," including constitutional arguments that were later dropped;
• Fulton party's request that MacDonald produce her entire medical history was, in part, "completely irrelevant to the issues raised in the application.^[16]

Fulton's lawyer, Andrew Roman disargeed with Joachim's comments, adding that "I'll be taking steps to deal with that...The way the tribunal is set up now, the complainant is rewarded for taking a risk-free grab at a big bag of money. Roman claimed that at the mediation stage, the "typical payoff" is often around $20,000 and that if a person "can't work out a settlement at mediation, you go to a hearing and have to pay many times that."^[16] Fulton also claimed that the Commission pushed him to pay MacDonald, stating that "They told me that I had to pay her legal fees, write a letter of apology admitting guilt and I could make it go away," but he refused, stating that " I didn't know what to do and I wanted ... a tribunal decision. I'm stubborn." He also stated that "They're picking on the wrong guy. The OHRC needs to be rejigged ... before other people end up being in a situation where they feel like they're being extorted."^[17]

Karen Selick, the litigation director for the Canadian Constitution Foundation^[18] which supported Mr. Fulton, sharply criticized the Human Rights Tribunal of Ontario (HRTO) and the process by which it handles complaints, writing in the National Post that:

"For complainants, the process is virtually risk-free. It costs them nothing to file a complaint, and the tribunal mediator will help explain the shakedown. If they want some legal help filing their complaint, they can get it gratis, at the taxpayer-funded Human Rights Legal Support Centre. And they never have to risk paying costs, no matter how ill-conceived or unjustified their complaint was. Heads, the complainant wins; tails, the accused loses."^[13]

In February 2009, Afroze Edwards, a spokeswoman for the Ontario Human Rights Commission (OHRC) expressed support for the applicant, arguing that:

"The [Ontario Human Rights] code does not distinguish between transsexuals who are at different stages of transition.. I think the important thing to remember there is how they identify themselves; what their sense is, that they are living as a man or living as a woman. Regardless of whether they’re preop or postop, it’s their lived gender that’s important.”^[19]

Case against Maxcine Telfer

In October 2009, Human Rights adjudicator Faisal Bhabha(who currently serves as the Vice-chair of the Tribunal), ordered Maxcine Telfer, the operator of Audmax Inc., a settlement service that contracts with the federal government to help immigrant women fit into Canadian society, to pay $36,000 to Seema Saadi for terminating her employment after six weeks. In his judgement of the case, Bhabha ruled that the termination was an act of racism and represented discrimination on "the basis of an intersection of ... race, ancestry, ethnic origin and place of origin." Although Bhabha found that "Nothing in the evidence suggests that the respondents deliberately targeted the applicant for discriminatory enforcement of the microwave policy" he nonetheless decided that Ms. Saadi "was adversely affected by the enforcement of the policy" and was thus entitled to compensation.^[20]

Although Ms. Saadi was represented by government-paid lawyers, Ms. Telfer represented herself because she could not afford counsel (and no government aid was offered to her). Following the tribunal's decision, Ms. Telfer was unable to pay the judgement, so Ms. Saadi's government lawyers began the process to seize her home and auction it off in order to obtain the $36,000.

However, in January 2011, a three-judge panel of the Ontario Superior Court of Justice struck down the adjudicator’s decision, saying it was “fatally flawed” and “patently unreasonable”, and explaining that it was “simply not possible to logically follow the pathway taken by the adjudicator” to arrive at his conclusions. The court ordered another hearing, before a different adjudicator and ordered Ms. Saadi to pay $10,000 for Ms. Telfer’s legal expenses - although the HRTO stated that it will use taxpayers’ money to pay on Ms. Saadi’s behalf, and will represent her free-of-charge in the new hearing^{[21][22][22][23][24]}

Among the court's specific criticisms of adjudicator Bhabha's ruling were that he had refused to hear key evidence supporting Ms. Telfer’s version of events, often accepted Ms. Saadi’s version only on her say-so, and that the court could find no link between the evidence Bhabha heard and his conclusions.^[25]

In an editorial, the National Post sharply criticized the OHRC for its conduct in this case, arguing that

"Those who cry racism (or some other -ism) have their legal fees covered by taxpayers, while defendants must pay their own costs. Commissions do not follow the usual laws of evidence. They give complainants wide latitude to prove their cases -- including sometimes even allowing hearsay evidence -- while hamstringing defendants. Those charged with discrimination are frequently denied the right to face their accusers... hearings often resemble kangaroo courts rather than judicial proceedings, even though their outcomes have the force of law in most provinces....It's an institutionalized bonanza for anyone who carries a grudge against his or her boss or landlord.^[26]

The post added that "the HRTO's staff continually complain of being overwhelmed, and cite their increased workload as evidence of pervasive bigotry in Ontario society. If the Saadi-Telfer case is any indication, the bigotry seems to be mostly imaginary."^[26]

Rex Murphy also criticized the OHRC, writing questioned "Did no one at this "human rights" tribunal look at the penalty of the ill-decided case and see that the consequences flowing from the penalty was itself the real violation of human rights?" He also wrote that the Ontario Superior Court, in overruling this decision, "struck an awesome blow for decency."^[22]

Other Controversies

In a 2007 judgement awarding $20,000 to a black woman who was wrongly accused of shoplifting, Human Rights Tribunal of Ontario Alternate Chair Kaye Joachim wrote that the woman was a victim of racial profiling by police. Joachim wrote that "There is nothing novel in finding that racial profiling is contrary to the Human Rights Code. What is new (in the last two decades) is the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual 'bad apples' but part of a systemic bias in many police forces."^[27]

Dave Wilson, president of the Toronto Police Association, called Joachim's statement about racial profiling "disturbing" and that "I'm not denying that it hasn't existed. I think that racial profiling, somewhere out there, probably has occurred but it is absolutely not systemic and it is absolutely unacceptable that people would view this as a given within the policing community." Joachim later noted that the ruling did not pass judgement about whether racially biased police investigations generally occur in Peel Region.^[27]

In 2009, Human Rights Tribunal of Ontario Alternate Chair Kaye Joachim wrote in a ruling against Michael Shaw, a white Toronto police officer, that although there was no evidence that Const. Shaw knowingly discriminated against the complainant (who was black), no evidence of intent was needed because whether "consciously or unconsciously," the policeman had offended the complainant by his actions; since the complainant had caused to feel discriminated against, this was sufficient to warrant a ruling against the officer. Joachim also found that "on the balance of probabilities," Const. Shaw was liable (i.e. that reasonable doubt was not required.)^[28]

Lorne Gunter, writing in the National Post, sharply criticized Joachim, arguing that "Guilt, now, apparently is solely in the mind of the complainant. No one needs to prove you had intent to discriminate, that you had a guilty mind. The minute a rights charge is levelled, it is up to you to establish your innocence." Gunter also wrote that this case was further evidence that "Canada's human-rights commissions are horribly biased--far more biased than the people they accuse of bigotry --and need to be disbanded."^[28]

See also

• Human Rights in Canada
• Canadian Human Rights Commission
• Canadian Human Rights Commission free speech controversy
• Court of Appeal for Ontario
• Supreme Court of Canada
• Canadian Islamic Congress human rights complaint against Maclean's Magazine

References

1. ^ [1]
2. ^ Commission Statement Concerning Issues Raised by Complaints Against Maclean's Magazine. Ontario Human Rights Commission. Last accessed December 17, 2008. [2]
3. ^ Joseph Brean (April 9, 2008). "Rights body dismisses Maclean's case". National Post. 
4. ^ Jonathan Kay (April 19, 2008). "A friend of free speech?". National Post. 
5. ^ Brean, Joseph (April 9, 2008). "Rights body dismisses Maclean's case". National Post. http://www.nationalpost.com/news/story.html?id=433915. 
6. ^ Joseph Brean (June 9, 2008). "Muslims told to insist on equal voice in media". National Post. 
7. ^ Barbara Kay, The Islamist elephant in the room no politicians will acknowledge by Barbara Kay, National Post, October 2, 2008.
8. ^ ^{a b} Human rights commission calls for media council by Joseph Brean, National Post, February 11, 2009.
9. ^ ^{a b} No to national censorship council, (editorial), National Post , February 12, 2009.
10. ^ Barbara Kay, The perils of a national press council: Been there, done that by Barbara Kay, National Post, February 12, 2009.
11. ^ From the government, a new racist stereotype, National Post, November 19, 2009.
12. ^ Cops want probe of tribunal By Don Peat, Sun Media, November 19, 2009.
13. ^ ^{a b c d} The human rights set-up by Karen Selick, National Post, February 22, 2010.
14. ^ Fitness club owner faces human rights hearing over transsexual, The Canadian Press (reprinted in CanadaEast), February 24th, 2009.
15. ^ Club owner going to Rights Tribunal over transsexual case, Toronto Star, February 25, 2009.
16. ^ ^{a b c} Human rights outcome angers businessman by Don Fraser, The St. Catharines Standard, undated (approx. December 2009) (Article ID# 2169421).
17. ^ Gym Owner Complains of Human Rights Commission Process after Costly Battle with Gender-Confused Man by Patrick B. Craine, LifeSiteNews.com, November 11, 2009.
18. ^ Canadian Constitution Foundation
19. ^ Raphael Alexander: Ontario Human Rights Commission declares -- if you think you're a woman, you're a woman by Raphael Alexander, National Post, February 27, 2009.
20. ^ Seema Saadi -and- Audmax Inc. and Maxcine Telfer Adjudicator: Faisal Bhabha, October 7, 2009, File Number: 2008-00392-I, Citation: 2009 HRTO 1627, Indexed as: Saadi v. Audmax.
21. ^ Gunter, Lorne (3 February 2011). "Run afoul of the rights police, lose your home". National Post. http://fullcomment.nationalpost.com/2011/02/03/lorne-gunter-run-afoul-of-the-rights-police-lose-your-home/. Retrieved 4 February 2011. 
22. ^ ^{a b c} From our human rights tribunals, yet another sad farce by Rex Murphy, National Post, Saturday, Feb. 5, 2011.
23. ^ Superior Court rules Ontario Human Rights Tribunal hearing was unfair by Moira Welsh, Staff Reporter for the Toronto Star, Feb 1, 2011.
24. ^ Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 DIVISIONAL COURT FILE NO.: 28/10, DATE: 20110118. Available online at CanLII.
25. ^ The case of the smelly lunch by Margaret Wente, The Globe and Mail.
26. ^ ^{a b} You call this 'human rights'?, editorial, National Post, Monday, Feb. 7, 2011.
27. ^ ^{a b} Tribunal rules black woman was victim of racial profiling by Natalie Alcoba, CanWest News Service (reprinted in the Montreal Gazette), May 18, 2007.
28. ^ ^{a b} Phony courts, phony racism by Lorne Gunter, National Post, July 31, 2009.

External links

• Ontario Human Rights Commission