De­lays at hu­man rights tri­bunal could un­der­mine cases: Lawyers

The Recorder & Times (Brockville) - - ONTARIO NEWS - PAOLA LORIGGIO

toronto — a short­age of ad­ju­di­ca­tors at the Hu­man rights tri­bunal of on­tario is caus­ing wide­spread de­lays that some lawyers say could un­der­mine cases, pro­long con­flicts and dis­cour­age vul­ner­a­ble peo­ple from seek­ing re­lief.

a no­tice on tri­bunal’s web­site says the dearth of ad­ju­di­ca­tors is af­fect­ing its abil­ity to meet its ser­vice stan­dards, not­ing com­plainants may have to wait longer than usual be­fore me­di­a­tion or a hear­ing.

mean­while, the tri­bunal re­ported last fall that it had seen an un­prece­dented 25 per cent in­crease in its caseload in the pre­vi­ous year and a half, and cur­rently re­ceives roughly 4,500 ap­pli­ca­tions an­nu­ally.

a spokesman for the min­istry of the at­tor­ney Gen­eral, which over­sees the prov­ince’s 19 tri­bunals, said re­cruit­ment is un­der­way to fill va­can­cies but did not give a time­line for the ap­point­ment process.

Brian Gray said there are cur­rently 17 full-time vice-chairs, one part-time vice-chair and 22 part­time mem­bers at the tri­bunal.

ad­ju­di­ca­tors — which in­clude mem­bers or the more se­nior po­si­tions of vice-chair — carry out dis­pute res­o­lu­tion through me­di­a­tion or hear­ings. the hu­man rights tri­bunal is an in­de­pen­dent body that deals with ap­pli­ca­tions re­lated to dis­crim­i­na­tion and ha­rass­ment un­der the on­tario Hu­man rights code.

the tri­bunal is uniquely equipped to han­dle these com­plex and sen­si­tive mat­ters and the only av­enue to ob­tain pub­lic in­ter­est reme­dies, hu­man rights lawyers say, adding it must be given the re­sources to carry out its man­date in a timely fash­ion.

Jan­ina Fo­gels, se­nior le­gal coun­sel at the Hu­man rights le­gal Sup­port cen­tre, said the agency started track­ing de­lays and can­cel­la­tions in its cases be­fore the tri­bunal last sum­mer af­ter learn­ing of the short­age in ad­ju­di­ca­tors.

Since last au­gust, 18 of its clients’ me­di­a­tions have been can­celled or resched­uled, and one hear­ing has been can­celled, she said. there have also been longer waits for in­terim and fi­nal de­ci­sions, she said.

“it draws out the con­flict, that would be con­flict be­tween em­ploy­ees and em­ploy­ers, some­times peo­ple who are still in the same work­place ... which po­ten­tially can make con­flict fes­ter,” Fo­gels said.

“We’re def­i­nitely con­cerned about the im­pact on the claimants who are hop­ing for a timely res­o­lu­tion to the dis­crim­i­na­tion they’ve ex­pe­ri­enced ... We’re con­cerned when any dis­pute res­o­lu­tion sys­tem is back­logged but es­pe­cially one that af­fects peo­ple’s dig­nity, their liveli­hood, their abil­ity to get on with their lives.”

kelly doc­tor, a part­ner at the law firm Gold­blatt Part­ners, said she re­cently re­ceived an email ad­vis­ing her that the tri­bunal no longer had the re­sources to hear a pre­lim­i­nary mo­tion that had been set for this month.

“We had been wait­ing a while for that hear­ing date,” she said. “now this case is on hold in­def­i­nitely ... We’re not even at the stage of hav­ing ev­ery­one sit down and go to me­di­a­tion, let alone the stage of hav­ing it pro­ceed to a hear­ing so it’s re­ally sort of mak­ing things drag on and it’s prob­lem­atic.”

Such de­lays can put a lot of strain on com­plainants, both emo­tion­ally and fi­nan­cially, she said. in some cases, peo­ple have lost their jobs due to dis­crim­i­na­tion and can face real eco­nomic pres­sure un­til their case is re­solved, she said.

these set­backs can also un­der­mine pub­lic con­fi­dence in the sys­tem, she said.

“if they see the hu­man rights tri­bunal as be­ing an in­ef­fec­tive place to re­solve their dis­putes i think it could re­sult in peo­ple not fil­ing claims,” doc­tor said.

What’s more, if re­spon­dents know the case likely won’t come be­fore the tri­bunal for years, they can use that to pres­sure com­plainants to ac­cept less money or drop their claims, she said.

adam Savaglio, a Hamil­ton-based lawyer, said that be­cause the tri­bunal has spe­cific ex­per­tise, more peo­ple are turn­ing to it for re­lief in cases in­volv­ing sex­ual as­sault and other is­sues where a broader rem­edy is sought.

But de­lays caused by un­der­staffing can com­pro­mise com­plainants’ abil­ity to pre­serve and present ev­i­dence, he said, not­ing mem­o­ries may be­come less clear and wit­nesses harder to find.

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