PHOTO: Kathy Laird is a member of Tribunal Watch and former director of the Human Rights Legal Support Centre
The HRTO recently faced criticism from Tribunal Watch Ontario over the loss of adjudicators’ expertise, significant backlogs, and a tentative finding that it serves race cases poorly because of the new push on early dismissals.
Laird says these issues undermine the HRTO’s ability to fulfill its legal obligations and facilitate impartial and timely decisions on claims. Tribunal Watch Ontario is urging the Ontario government to recommit to an accessible human rights case resolution system with the opportunity for a timely oral hearing as provided in the Human Rights Code, Laird says.
She says her organization recommends that the government establish an adjudicative tribunal justice council that oversees tribunal members’ recruitment. Her group is also pushing for renewal and a competitive recruitment process to ensure new appointees have expert knowledge of human rights law and mediation or adjudication experience.
She says the government should ensure enough adjudicators to handle the mounting backlog of cases and provide sufficient administrative resources.
Tribunal Watch further recommends that the HRTO and Tribunals Ontario undertake an internal review to examine why the number of evidentiary hearings and merits decisions has fallen by 85 percent and address the issue transparently in the next annual report.
Laird says the HRTO and Tribunals Ontario should draft a guideline explaining the difference between non-jurisdictional claims subject to preliminary dismissal without an oral hearing and applications that may be submitted for summary hearing if there seems to be no reasonable chance of success.
Law Times reported that a jurisdiction and access to justice study revealed that the HRTO issued 150 to 300 annual notices of intent to dismiss from 2009 to 2017 and 989 in 2021.
Laird says the HRTO and Tribunals Ontario should conduct an internal review to determine if cases based on race, colour, ethnicity, place of origin, citizenship and ancestry have been disproportionally affected by HRTO-initiated dismissals and ensure that applications alleging discrimination are allowed an oral hearing when required by the Code.
She says an accessible process to support the option of in-person hearings when requested by a party should also be established and that all decisions include adequate reasons and not just conclusions.
Tribunal Watch Ontario also suggests re-establishing a standing Stakeholder Advisory Committee representative of the practising human rights bar, including legal clinics and the Human Rights Legal Support Centre.
The organization proposes reinstituting the former practice of the HRTO producing annual reports with transparent data, including the number of hearings, mediations, settlement rates, and representation rates, in maintaining Tribunal Ontario’s values of accessibility, accountability, integrity and fairness.