Last year I wrote a brief article outlining changes that were to be made to the Ontario Human Rights Code (the Code). At that point the timing of the changes was not clear and the specifics of the new regime had not been worked out. The government has since outlined the timing and logistics of the new regime and it is incumbent upon all employers to be ready for the new scheme. Of particular importance to employers is the fact that a disgruntled employee will be able to bring a complaint directly to the Human Rights Tribunal instead of having to go through a screening process by the Human Rights Commission. This means that the complaint will not be directly investigated by the Commission prior to the complaint going to the Tribunal. One of the biggest concerns for employers will be to make sure that they do a proper and thorough investigation as soon as they become aware of a potential complaint as the Commission will no longer be fulfilling this role.
In December, 2006, the Human Rights Code Amendment Act, 2006 (the “Act) received Royal assent. By proclamation, the date of June 30, 2008 has been set as the effective date for the revisions to the Code brought about by this new legislation.
The Ontario Human Rights Commission and the Ontario Human Rights Tribunal
Under the new Act, the Commission will expand its duties with respect to promoting human rights in Ontario through public education, policy development, monitoring, and research and analysis. The Commission will not be involved in an initial screening process prior to a matter being brought before the Tribunal and it will not have any involvement in most of the cases heard by the Tribunal. However, the Commission may initiate applications or intervene in important cases before the Tribunal.
The biggest change with respect to the Ontario Human Rights Tribunal is that complaints may now be made directly to the Tribunal, without having to go through a screening process conducted by the Commission. The new Act requires the Tribunal to dispose of applications by adopting procedures and practices which will provide the best opportunity for a fair, just and expeditious resolution to applications. At the present time, the Tribunal offers mediation to complainants and respondents who consent. The Tribunal has published Interim Rules for consultation which suggest that there will be pre-hearing consultation and mediation available to involved parties.
Establishment of the Human Rights Legal Support Centre
The new Act also provides for the establishment of a body entitled the Human Rights Legal Support Centre to provide advice and assistance, legal and otherwise, regarding infringement of rights under the Human Rights Code.
Time to Bring a Complaint
When the revised Code comes into effect, a complainant will have one year to bring a complaint, expanded from the present six month limitation period.
Under the present system, the Tribunal may award damages for “mental distress” where it has been determined that an infringement of the Act was wilful or reckless. The limit of such damages is $10,000.00. Under the new Act, there is a general power to award compensation for injury to “dignity, feelings and self-respect”. There is no requirement that the conduct be wilful or reckless, nor is there a monetary cap.
This article was originally published in the January 15, 2011 edition of the Ottawa Business Journal.