The Chair (Mr Tony Rizzo): We are going to start this meeting today by welcoming the Ombudsman and the members of the standing committee on the Ombudsman to today's meeting, in which we will begin our examination of the Ombudsman's special report from July 1993.
The Ombudsman's special report to the assembly outlines the results of three separate investigations. As with all Ombudsman's reports, it has been referred to our committee, and our mandate requires that we review and consider the report and that we report back to the assembly the results of our review, including any recommendations we may choose to make.
The first investigation outlined in the Ombudsman's special report which we will review is the Ombudsman's investigation of the matter of delay, in the Ontario Human Rights Commission investigation, of complaints of discrimination. Over the next two weeks, we will hear from both the Ombudsman and the Ontario Human Rights Commission on this issue.
We will hear today from the Ombudsman, who will explain her report on the matter of delay and the conclusions she has reached. Next week, we will hear from the Ontario Human Rights Commission, which will provide response to the Ombudsman's report. We are also agreed that the Ombudsman will be given an opportunity to reply to the commission's presentation.
The format we have agreed to is for the initial presentation to be approximately 15 minutes, followed by questions from members. As a possible approach to the questioning -- and this is something we have to have final agreement on between the members -- I would like to suggest that we proceed in two rounds. The first would give each party 20 minutes to ask questions. This would be followed by a second round in which each party would have a further 10 to 15 minutes to ask questions. This approach, I think, would give members the opportunity in the second round to pursue questions which may be raised by other members during the first round of questioning, of course, if there is an agreement between you.
We'll begin now with the Ombudsman's presentation, and again, welcome, Ms Jamieson. You can start as soon as we find agreement to my proposal in terms of how we are going to deal with it. Are we all okay with that? That's fine. So you can proceed with your presentation.
Ms Roberta Jamieson: Good morning. Bonjour. In my language, sago. I am very pleased to be here this morning and to meet with committee. I will respect the Chair's time limit and try and make the best use of it so that I'm of assistance to the committee.
This report that we're here to discuss involves an investigation that I began in 1989, having received a number of complaints over a period of time on delay issues at the Human Rights Commission. After I got a significant number of complaints, I broadened the scope of the investigation so that we were able to look at the commission's general handling procedures and its internal strategies that it had adopted to deal with issues of backlog and case management problems.
I concluded my first tentative report in 1990 on 38 complaints and found them all to be supported. I knew when I was doing the investigation that we were dealing with an organization that had gone through many changes from the 1960s when it was created until the period of my investigation. I knew too that it had difficulties in staffing, changes to the code, increases in complaints and so on, and took all of those things into account.
In 1990, the commission received my first findings and had an opportunity to respond to them. Some of the findings included: I had found a delay in completing investigations; I had found that there were unassigned cases inactive for long periods of time; I found that there were very aged cases still incomplete; I found that was a middle group of cases that had been neglected; and I found that there were statistical reporting omissions, that things like early settlement initiatives didn't make their way into the numbers for the overall case load. I also found that I continued to receive delay complaints at a fairly steady rate over the period of time.
The commission had ample opportunity to respond in 1990, and in fact did respond, but improvement was not there. By 1991, I finalized my report and presented it again to the commission for its response and finally to the Premier, which is the process that I must follow, because I was not satisfied that there had been enough improvement.
What I found was that human rights officers themselves were acknowledging that the delay made settlement and even investigations of the cases very difficult and that this was continuing. I felt also that the commission's conduct significantly undermined and even nullified the effectiveness of its own processes and prejudiced both complainants and respondents in respect of the proceedings and their fair hearings and their ability to get a timely remedy. In the circumstances, I found that the commission's conduct was then tantamount to a failure to enforce the code effectively.
The Premier responded on behalf of the government of Ontario to my findings and my recommendations and undertook a number of changes: to add a number of additional officers, to improve case management procedures, to alter the board of inquiry process, to review the Human Rights Code, to make this a more manageable system to deal with human rights complaints.
I was satisfied that those changes would indeed give the commission the best chance to improve and closed my investigation but continued to monitor. After a period of time, I even stopped monitoring because I saw improvement. That was 1991-92. A year later, I was still getting complaints. I had another look. In 1992-93, I found that the improvements that were there were short-lived and we had in fact slipped back.
What was I to do then? At that stage, I had gone to quite unprecedented lengths of investigating, giving ideas and monitoring. Although there was some improvement, there was not the substantial improvement that we had all hoped for and that I thought might be achieved. I felt at that time that it was not appropriate for me to act as a trustee or continue to try and micro-manage from a distance by again and again investigating delay complaints about the commission. I knew the problems were there, and many of the problems they readily acknowledged.
I, having exhausted what I could do as the Ombudsman -- investigating the complaints, putting forward my ideas -- felt that it was time, in the public interest, for me to raise this matter with the Legislature.
This is a not a typical "recommendation denied" case where I look at a file, put forward recommendations, government refuses to respond and then I come to the Legislature and to this committee for support. Government had responded, but the improvement just wasn't there after a time.
I made a decision that this was one time when, in the public interest, I needed to raise this matter with the Legislative Assembly and with this committee. I felt that while there was short-term improvement, it might be that the whole system for enforcing human rights in the province couldn't be brought to a really acceptable state as long as we left the system within the existing legislation and the organizational framework that was there.
I also was well aware that there were a number of reports that had been done and were put before the Legislature, and were available to the commission, going back to 1985. In 1985 and 1987, there were management reports. There was the Cornish report in 1992, which had 88 recommendations on the Human Rights Commission and the code. There was my report of 1993. There now has been consideration by one of the other committees in the Legislature dealing with the commission. I knew that there was a good deal of work out there, ideas for improvement that have been put forward, and I felt that in the public interest I needed to raise this issue with the Legislature and ask them to take into consideration all these things and my comments. I felt at that time, and said so, that further devotion of resources on my part to investigate was not going to be helpful, that a broader reform was called for here.
I think that, frankly, we've reached the point and I've reached the point where it is time -- and I had reached it when I made my report to the Legislature -- to stop studying, to stop investigating, to stop criticizing and to look, frankly, at how the Ontario Human Rights Commission can be supported to get the job done that needs to get done. I think the time is here to look at the creative and positive recommendations that are contained in all those reports that were done by people who are well versed in this field; a lot of public input, a lot of terrific proactive ideas there, and I think it's time now to pay attention to those ideas and to take them into consideration and to have them dealt with in some fashion.
I'm concerned that for my part a continuing focus on issues of delay and backlog over time is really bankrupting or will bankrupt the Human Rights Commission's ability to be creative, not to mention its resources in responding to all these reviews and investigations. I don't think any agency can continue to sustain that level of stress, of examination on a daily basis without being undermined, without morale suffering. If it's constantly reacting and putting out fires, how will it be able to get on with the task at hand?
I also think that recommendations in support for the Human Rights Commission movement forward will not be helpful either unless the commission accepts some responsibility for where it is and looks at realistic solutions to fix the problem. Having said that, I think there are some primary questions that need to be faced if we are to move forward, and my message here today is, it is indeed time to move forward.
First, one of the primary issues is the role of the Human Rights Commission. This needs to be addressed and reconciled. Is it an advocate representing complainants against respondents, or is it an investigative body, independent and apart, with enforcement powers and access to quasi-judicial processes? It seems to me that this needs to be clear so that the public will be clear in their expectations for the Human Rights Commission itself, and so will respondents. If a respondent feels that it's an advocate for the other side they're going to, we'll not have a satisfactory process or people who will feel they've been dealt with fairly. That's a primary issue.
One, I think the commission needs to be supported in its mandate to do proactive public education and outreach. If it's always responding and reacting, how can it lead? How can it move public opinion and view forward on many of these issues? How can it create the environment in this province in the 1990s and into the next century for respect for human rights? How can it predict trends? How can it talk out in the public and get us thinking and talking about how discrimination manifests itself in the 1990s? These are things that are in its mandate and that I believe it would like to do.
Second, a systemic approach to investigation, to intake and resolution of complaints is required. I think every member of staff -- and we know something about this at the Ombudsman, given that all of our staff also need to be able to identify in every complaint that comes in the door what the systemic aspect is. There is the greatest potential for positive impact for the future. And it's not a matter of "over here we'll do systemic and over here we'll do individual"; we need to do them together. That expertise, the way to identify it, manage those things, predict trends throughout one department, throughout many, throughout the public and private sector needs to be there.
The third thing I think is necessary is to streamline the complaints process itself. The Human Rights Commission here has the expertise, and I do see commitment. I received a package of documents from last April 29, just at the end of last week, which gives me some hope, some idea that the commission is indeed moving in the right direction. I should say, however, that I have seen case management ideas before. What is essential is that they be implemented, that there be follow-through, and I think with support, this is possible.
Some of the areas that continue to trouble me in the statistics that we've just reviewed are that, yes, the total case load is increasing; secondly, almost 50% of formal cases remain unassigned; third, there is still a middle group of cases, not the early ones, not the old ones, but this bulge in the middle that is aging. That is still there and needs to be dealt with.
Also, there continue to be omissions in the statistical reporting so that you can't get a whole picture of the case load. The early settlement initiative files don't get a number assigned until the date they're ready to be closed. So they're opened and closed on the same date, virtually, which means you don't see them in the whole case load as they're being worked on. I think that's important.
Cases that go to reconsideration and to boards of inquiry are not counted in the total case load either, so we can't get the big picture of what is there at the commission. I think this would assist them, if you could see that.
There are also new policies that are being developed within the commission that require people who want an extension of a time period to go for reconsideration to go through a process that may well not be necessary and causes further delay.
Those are some of the issues that still jump out at me when we review the latest statistics from the commission itself. But I want to be clear: I think the commission itself is in the best position to work on the streamlining of the case management and the processes themselves. They know better than anyone what the issues are and they know better than anyone, I believe, how they can be dealt with. The fourth thing I'd like to raise is that I believe the commission needs to be supported in its reasonable recommendations, what they know would be successful today and what they need to prepare for the future. I think they need to be worked with. I think they need to be asked what their views are. I think they need to be allowed to take responsibility for the current state of affairs and also for the future, including fundamental change for the future.
As I said before, I got a package last week which speaks to some initiatives which gives me hope for the future. Implementation will be the key, and support for that is essential. No institution can withstand the criticism on an ongoing basis; it will be demoralized and paralysed as a result. It needs to be supported and equipped to work for the future.
I think the commission realizes that it is not an easy task to change an institution. This is hard stuff. This takes risk-taking. This mean chances. This means courage. This means a willingness to try some things you might not have tried before. A continuing criticism from the outside for me or anyone else is not going to help them have the courage to take those steps.
I think it is time to move forward. I think it is time for many of us to be quite supportive in our ideas and our recommendations and to give a very strong message to the commission that they have that support, they have that room, they have that responsibility to make the changes.
I don't think new studies or reports are going to be helpful. They're all there, from the Stephen Lewis report to the Cornish report, from my reports to reports that the committee has and the Legislature itself.
I do think, in the final analysis, whatever the commission feels are priorities need to be enunciated, and they are again the best equipped to do that. Is it a code review? Is it a concern about the need to make sense of a proliferation of agencies: Pay Equity Commission, Employment Equity Commission? Is that the priority? Is it the need for a full-time commission? Is it the delegation of decision-making internally? Is it the need to further establish arm's length from government?
These are all candidates for priorities, but I believe the commission is in the best place to let you know what its priorities are. That, together with the number of reports that have been filed, I think, will give ample ingredients to work with.
The last thing I want to say is that there is a need, I believe, when all is said and done, there will be need for a formal process to resolve complaints. From my dealings with the public over time, I believe the public will not accept that their complaints have been dealt with unless there's a formal process where they feel they've been heard and that that's important. That's going to be a struggle, because we already know we have a judicial system that is having its own case load difficulties. That is an area of real challenge and will take some time and considered attention.
In closing, I think I should say it's very clear to me, as I travel and as I listen to people, that in this province we are facing a difficult challenge. We are a microcosm of the world. There are many issues that we will face here, intercultural, intracultural, and we have an opportunity to come to grips with them.
There will inevitably be conflict as many people from all over the world attempt to live together in this province, and I think we need to recognize that conflict is inevitable and devote our efforts to managing the natural conflict that is there. That's the issue that clearly faces your children and mine today and tomorrow. One of the clear messages for facing that is going to be, what conduct is acceptable in this province?
We need a body that is equipped to, first, inform us on the standards and the conduct that is acceptable, to stand up for the values we all believe in and have enshrined in the Human Rights Commission. Secondly, we need a body that can move quickly to enforce. If delay is there, we will not have enforceable human rights. That is essential.
We need a body that can tell us what the waters are like up ahead as we move forward. We need a body that's able to take quick and effective action where it finds difficulties that are facing us. We, I believe, are a microcosm of the world and as a result are a real beacon of hope for that same world. If we can find a way to live together in this city, in this province, to manage our difficulties, to enforce the behaviour we believe is acceptable and honours our values, we will be a model for the country and for the world.
We've come a long way in that, but we've got a long way to go. We have to ensure that we've built the institutions and we've sustained the institutions and we've supported the institutions that we're going to need to safeguard all the rights we enjoy and are pledged to protect, and human rights are central.
I am here today to ask the committee, to ask you as legislators, to provide the legislative support to the Human Rights Commission so that it can be successful in enforcing human rights in Ontario. Thank you.
Ms Jamieson: I have seen all of that through the reports. I have seen some very positive steps that have been taken. I think more need to be taken. What I have tried to do is to say that I don't think there are quick fixes. I don't think a staffing change here or there is going to solve the difficulty. I think it's a macro approach that's required and one that combines all the areas that are highlighted in the many reports that are before the Legislature, including the code itself.
Mr Morrow: Chair, if you don't mind, on the next question I'm going to look for your guidance, if I'm out of order or not. In your interpretation of this government's Bill 40, what's your interpretation of rotating strikes?
Mr Tony Martin (Sault Ste Marie): You raise some really, really important issues here today, issues that are in my mind fundamental to what we do as a government in trying to set in place the framework within which all of us will live together. I think you're right when you say that Ontario is a microcosm of the world. We have a chance in Ontario, in my mind, to set a standard if we can get our act together.
One of the things that really concerned me, before I ever got to this job, in the role I played out there as an advocate in the community, is the pattern that develops when new legislation is brought in. People work hard at finding a way to frame that which we want to uphold as the rule of law and the way that we'll act. We put it in place and almost immediately it's abused. People see this as something they've been given by right according to the Legislature, but it's not in fact happening for them. So as a government, we set up an agency to speak for them which becomes almost as big a bureaucracy as the bureaucracy that's administering the program in the first place.
Certainly the Human Rights Commission is one that's set up to protect the rights of people in front of what they rightfully have coming to them. Your organization is one that's set up with that in mind. Certainly my office in Sault Ste Marie is an office that advocates on behalf of people who feel unduly done by re the way that we deliver government services or their rights.
We all take a degree of criticism because we can't do the job. I suggest to you that your office, my office, the commission, will never be able to do the job, because the more people we put in place and the more systems we set up, it seems the more we attract people who need to be serviced, who have complaints and all that kind of thing. It just goes on and on.
In this day where you have a government in Ontario which is very, very concerned about questions of equity and access and human rights -- and we've made some changes, some very significant changes over the last three and a half years in the area of defining what human rights are and what people have a right to do. Bill 40 is one piece of that and all of that, and yet we haven't found a way to in fact make those things the rule of law in our communities, the standard by which we all --
You've suggested some ways here that we might be helpful by way of our advice and what we might do here. The question is bigger, in my mind, much, much bigger, and I have to tell you that sometimes I feel quite hopeless in front of it. But I have not given up hope, and that's what I think I hear you saying today. You had suggested looking at systemic reasons for things happening. I suggest to you that we've not found a way yet to really apply what we know is in the best interests of all peoples by way of legislation.
I'm groping and grasping and looking for answers to that. Do you have any answers above and beyond sort of some of the very limited specific things you've put forward here, coming from your own experience as Ombudsman and knowing that, even in your work, you're criticized because you're not able to do enough?
You talk here about the commission going out and doing proactive things, public education-type things. I know that one of the ombudspersons in my community attempted to do that, but was pulled back because there weren't enough resources and time to give her to actually do that. How do we resolve all of that?
One of the things is that you're right, I am very hopeful. I think the systemic approach -- and that's one of the things that I have come to in my own time as Ombudsman, there's always this discussion, do we do individual complaints or do we do systemic? It's a very artificial discussion when all is said and done, because it's in the individual complaints that the systemic problems are revealed, and it is the way you go about complaint investigation and resolution.
If you find you've got three complaints on something that reveal an artificial barrier there against youth or against people in the north, and you can effect a change in one department, in all departments, that does an incredible reparation. I think that is where the potential is. But I believe that as long as we're examining the commission, micro-examining them on backlog investigation and so on, it's not going to have the chance to develop that expertise, to show that creativity.
The other thing I want to say is that this organization was created in 1960 with 1960 legislation. Incredible changes have happened, in the last five years never mind the last 30, and we need to make sure we've got an institution and processes that equip us for the next century. That's where the challenge is for me and that's where the challenge is for the commission. I think they've got the best ideas, the best resource and all the reports that are there. The task force report, now called the Cornish report, has 88 specific ideas. I think those should be considered.
There are lots of ideas out there. I think it's a matter of having a macro look at the issue, deciding what is important, what we are prepared to support, and moving forward with it. I don't think asking the commission to get along under the current circumstance is going to solve the problem. I've indicated some of the statistical problems that I see that will not help them, and it won't help them either to continue to struggle with a middle kind of bulging case load and me investigating delay complaints about it. That's not going to help them. We need a much broader reform, and that's really my message today. Is it doable? Absolutely. I think it's essential.
Mr Mike Cooper (Kitchener-Wilmot): I have a couple of short questions. First of all, in your complaint process, when a complaint comes in, do you contact the person and tell them to stop the process that they're in?
Mr Cooper: Okay. And here's one of the problems. As you know, the standing committee on government agencies has just finished its review of the Human Rights Commission and is doing the report right now. In their process at the Human Rights Commission, when a complaint comes in, same as you? Have they exhausted all avenues before the complaint is picked up by the Human Rights Commission?
Ms Jamieson: I believe they have a section in the code that allows them to refer complaints to other areas. If there is another appropriate agency, they have the opportunity to do that. Whether they do that or not on each and every case, I think you might want to put that question to them next week.
Mr Cooper: Here's the crux of the whole thing. What we're seeing, and it came out there, is that people put a complaint in to, say, WCB, the labour relations board, press council, whoever, and to the Ombudsman, and the Human Rights Commission, and the environmental commission and -- who else do we have? -- the Pay Equity Commission, the Employment Equity Commission. So you have all these commissions working on a single person.
Is this part of the problem that's causing the backlog, that people will go to one part, exhaust that, it doesn't work, so they go to another commission and try that? Is that causing a major backlog in the Human Rights Commission? It seems like a lot of things from other places that are more appropriate, where they are in some sort of process, are eventually also going to the Human Rights Commission.
Ms Jamieson: One of the issues I think I mentioned in the priority areas that need to be dealt with is a kind of proliferation of agencies. That is one area that I am concerned about. I think it's confusing to the public. But I can tell you that if they come to us, we let them know that if they are proceeding before the courts, and I would add the courts to your list, or if they're lobbying politically, and there are a couple of other sort of options as well, they have to make a decision, that it is not an appropriate use of my resources or the public's resources to duplicate somebody else's job.
Where I will vary from that is if, for example, in this case they were before the Human Rights Commission. They came to me. They didn't come to me on the subject of the final outcome, whether the Human Rights Commission found discrimination or not; they came to me on the issue of delay. There I will get involved if it's taking too long, the process that they're at. But we try very hard not to accept -- hopefully everyone declares to you when they come how many places they've gone. There's no magic computer to check that.
Mr Cooper: This is a problem in our offices, because they come to us with a complaint and I find out that the very next day they've gone to the Ombudsman. Once it's in the Ombudsman, my constituency office staff get out of it because they no longer belong there. We are criticized for that because people want an answer now and we can't give it to them today so they go straight to the Ombudsman. I was wondering if in the Human Rights Commission, that was part of the backlog problem.
Ms Jamieson: The Chair contacted me and, knowing that I had this report before this committee, I think it was felt appropriate that this is where I would come. I don't know if there are ever times when committees sit jointly.
You mentioned systemic things. We have a copy of the case times and we have a copy of the case load staff that were done for us. So when you mention systemic barriers, what do you use as indicators, seeing the problem as a systemic problem? Three from the north means it's a systemic barrier to northerners, three on youth: What indicators do you use to say whether you feel it's a systemic barrier or not?
Essentially, if you're looking for a definition of what is systemic, what we look at is, to what extent do we find a problem that may well appear on its own to be quite benign but in fact operates to a disadvantage of a particular group of people?
Sometimes you'll see it with one complaint. Sometimes you'll see it with 100. That's why I ask all of my staff to be on the lookout each and every complaint that comes into the door for that dimension. That's certainly one of the central things we're aware of, because as opposed to looking at 30 and finding the same thing, we should be able to look beyond, with our expertise, and see, if it's a problem for one person, is it really something that the ministry or the body involved is doing that ends up providing a barrier to a particular group of people? Numbers aren't always important in that. Sometimes you can see it with one, but then you can prevent 1,000 if you fix it.
Also, when we look at the stats, and we're talking about delays here, what do you think would be a normal number in terms of case processing at the Human Rights Commission? Since you're working with delay and we're looking at the stats, what do you consider is normal in terms of the case load, in terms of the age of the case load or in terms of the length of that investigation or number of unassigned cases?
Where is that balance where you maybe would have said, "Yes, it's a little high, but I understand that you're dealing with new legislation, you've got a new process, you've got a new person, you're trying to get it under control" and so on and so forth. Where is that balance that you see as being normal versus your report saying there is a delay?
Ms Jamieson: In looking at and doing our own investigation and our own report, we in fact used the commission's own standards. I didn't come in and impose them from outside; I asked them what's their standard. What we found is that they were not able to meet their own standards, their own goals, and as I said earlier, I think the body involved is best equipped to tell you how long something should take, and if it's not able to do it in that period of time, then you know you've got a problem.
The other points that I've drawn about a middle kind of bulge and so on, you can see just by tracking the investigations it'll go down for a while. Any complaint over sort of six months and under kind of three years, you can see that, gee, in 1990, 1991, 1992 they went down, 1993 they went down, 1994 they're back up.
If you look at the front end, maybe you're doing a dynamite job at the front end and a real concentrated effort on the old ones, but if you're not dealing with the middle bulge, pretty soon it's going to be old. That's where I can see, just by looking at the pattern, that some concentrated effort needs to be spent there.
Did you find that the Human Rights Commission, when you re-evaluated, when you went back in and said: "Well, yes, you've done a really good job on the case load, on the old case load. That's what I asked you to do. I asked you to look at the delays." We were talking about the delays.
Now the concern is that all the resources -- when you looked at it again, did you find that they put all the resources on looking at that problem around the delays and did you then see a problem because they took some of those resources from other areas?
Ms Jamieson: I think I should be clear in saying that delay doesn't always mean a case is really an old, old case. Delay happens when you look at a file and see that there's been little or no activity on it for a period of time.
Ms Jamieson: I looked at cases that were anywhere from a year to nine years old, and we found in many cases a period of months where very little activity happened. So that speaks to what was going on with the file. We found it in old files and in relatively young files at that time.
Mrs Haslam: Could I follow this for just a little longer? What kind of activity, then, would you expect? A letter to the person who had the case? Another call to someplace? Was the lack of activity because they were waiting -- I've got things on my desk that have not had a phone call in two weeks and that drives me crazy. I have a file called "Calls to make," and I go through that file and I know that in my own office, my case workers say: "I'm still waiting for the information. I'm still waiting for somebody else to get" -- we all have those cases where you're still waiting for the ministry to get back.
Mrs Haslam: I know, eight months. That's right. Sometimes letters from ministries take eight months. In a huge ministry that's not uncommon. They try to do it as quickly as possible, but sometimes that letter is a long time coming. In the meantime, I'm calling on a regular basis. Is that what some of the problem was in the inactivity, or was it that they just didn't have the resources or the time to make those calls on that file because their files double my file?
Ms Jamieson: I think that in any of the investigations we try to do, the findings we come up with are applying a reasonable standard. I know we have files, we have investigators; we know what's a reasonable period of time. When it's extended months with no activity, I think that's pretty hard to justify. That is what we found and tried to apply a standard that was reasonable under the circumstances. If we could find no reasonable explanation for work not being undertaken, that's what we concluded.
Mrs Haslam: When you found no reasonable reason for the work not being taken, did you then put that down to, as I hear you saying, the need for an overhaul or looking at the systemic workings of it or versus the resources? That's a question that we as a committee have got to look at. Are you saying that the inactivity is because of some management or case load problem within the structure that has to be addressed by a total overhaul, or are you looking more at the resources they have to deal with and the people they don't have and the influx of cases?
Ms Jamieson: I don't think it's as simple as saying one or the other. I really think they're both part of a larger equation, along with the other things I listed that are needed. We're not going to deal with backlog or delay other than in a much broader context. I think the system for handling complaints internally needs to be looked at. I think the Human Rights Commission itself has made some very positive steps, which require follow-through. I think there are some adjustments that could be made to the code to make the system a much more streamlined system.
I guess my message here this morning was a much more macro look at it. I don't think a few more dollars are going to solve the problem. I think it's a genuine, broad overhaul that will be required. If I thought tinkering would fix it, I would have said so. I did not think that was the case. But I see some positive steps being taken which I believe should be supported and supplemented.
I just wanted to pick up on something that Ms Haslam was talking about, and that, of course, has been the delays and backlogs. Are there any specific examples you can give us in terms of how the complainants have suffered because of a delay in taking care of their particular case?
Ms Jamieson: I don't have that right in my brain. I can tell you that I believe that if you don't have a remedy available to enforce your human rights, not only does that individual suffer, we all do. I can tell you that of the 38 complaints I initially investigated, a number of them remain outstanding, and I started in 1989. Suffering can take many forms: lack of access to a remedy; perhaps they lost their job as a result of discrimination. There are all kinds of variations on the theme, but I don't have a particular example to table with you today.
Mr Miclash: You indicated that we're working here in terms of the legislation. I think you mentioned it was created in 1960, under 1960 legislation. What are some of the legislative reforms you would see made through legislation that would help out in terms of correcting the problem of delay?
Ms Jamieson: There are a number of people who have done some very good creative thinking on this subject and have considered views in front of the Legislature at this stage. I'm not sure I'd want to second-guess them, just to say that the code itself, I believe, needs to be brought up to the 1990s standards. I believe there are process changes that need to be reflected in it and I believe there are ample ideas and detail available out there which should be given a considered view. It would be very presumptuous of me to sit here and give you a kind of detailed list of code changes that would be required. I hope the Legislature will put its mind to that and make changes. I think reconciling what's the role is number one and I've said some of the other things that I think in a broad way need to be grappled with.
Mr Miclash: You mentioned both the Lewis report and the Cornish report. These are some of the reports that are in. What are some things that you see in these reports that jump off the page at you in terms of their recommendations? What are the things that come to mind from both those reports?
Ms Jamieson: Once again, I think there was an incredible amount of public input into both: ideas, real-life stories on the problems, real creative ideas on changes, process ideas, mediation ideas, ideas on having equality rights centres. There are any number of suggestions. The question is, to what extent does the Legislature want to alter the Human Rights Code and in what direction? To what extent does the Legislature want to change the whole regime for human rights enforcement? That question I believe needs to be faced first. Then, how do you do it? As I've said, there's quite a smorgasbord out there of wonderful, well-thinking, well-thought-out ideas.
Mr Gary Wilson (Kingston and The Islands): I'm glad to see you here again, Ms Jamieson. I'm interested in a couple of things here. First of all, in your own study of the Human Rights Commission, you did, at a point, I think in 1992, determine that changes had been made, that you thought there was enough improvement there that you could close the file, if I recall correctly.
Ms Jamieson: I see; 1991 was when the Premier responded on behalf of the government, then I had another look at 1991-92 results -- you're quite right -- so it was the spring of 1992 that I said even further monitoring was not in order at that stage. I did see improvement.
Ms Jamieson: I just wanted to say that sadly it was short-lived, because when I looked at 1992-93, I saw that we were slipping back and it's then that I came to the conclusion that much broader change was required, that this could not be fixed by tinkering. That's why I made the report to the Legislature at that time.
Mr Gary Wilson: It comes down to, I guess, the definition of "tinkering" and what are kind of substantive changes, because I think you're aware that the commission does think it's undertaking some substantive changes that can lead to improvement, and we see some evidence of that in the figures as far as clearing of the backlog goes.
For instance, I have a table here prepared by the legislative counsel that shows that the number of cases from 1993 to 1994 has declined fairly substantively, and it would appear that by some of the changes that have been made, the backlog is being addressed.
Ms Jamieson: Mr Wilson, I'm looking at a case load by age group as of March 31 chart here, and what I see is that in fact case load is rising. I see from 1990 to 1991 it rose, 1992 it dropped, 1993 it dropped, but 1994 it's back up. I see the ages of the cases. While there's some considerable attention on the older cases, I am a bit disturbed by the number of aging middle cases, and I would describe middle as being over six months and under three years.
While a terrific job may be being done at the back end and the front end, if you've got a middle glut that's aging -- and even that glut doesn't take into account the early settlement initiative cases, the reconsideration at the board of inquiry, so you've got even a bigger number somewhere in the case load -- I am not hopeful that without some determined, sustained change, forward movement there -- we may be back in a problem and that's why I'm raising that. I am hopeful with the signals I see coming from the commission, but I think the magic word is "implementation," follow-through, and I think they needed to be supported in that.
Mr Gary Wilson: To emphasize the implementation and follow-through, how can that be achieved with the present structure? I'm thinking here of a report titled Organizational Improvement Initiatives at the Ontario Human Rights Commission, dated May 5, 1993.
Ms Jamieson: This is the material we received just last Friday, but I am able to say that again I see some very positive ideas in that report. I see some determination. I am encouraged by it. I should also, though, say that I've seen case management ideas in the past. "Follow-through" is the key word here.
Will they be supported? I'm prepared to support that. I think that alone, however, in the longer term will not do the trick. I think there are things beyond the commission itself that it would like to see done. There are changes internally that it knows best, and it should be allowed to do it. There are changes outside, legislative and so on, that it too would like to see done, and I'd like to see those supported.
Mr Martin: I'd like to follow up a bit on Mr Wilson's line of questioning and also continue from my previous foray, and that's the question of how we deal with the tremendous onslaught of requests from people to have their rights upheld. Given, as I said before, that we have ourselves brought on some good number of new initiatives and the pressure that we'll face, I suggest to you, as Mr Wilson did, that the commission is dancing as fast as it can with this and trying to do the best it can, and in fact did make some progress and was then all of a sudden faced with a huge increase in requests for more information, which causes stress. As I said before, you and I have experienced that.
The question I have in light of that is, first of all, would you agree that a good part of the problem that's happening now is this huge increase in the amount of stuff that's coming in, and is there anything you might suggest we might do as a government as we introduce new pieces of legislation that will ultimately cause this kind of reaction that would make it more playable out there? I'm talking about perhaps some improvement to the communications we do, the public education we do.
You spoke earlier about the commission itself needing to be more proactive in terms of that kind of thing, yet when you gave some of the things that needed to be addressed and reconciled re the role of the commission, you talked about advocacy or investigation. Where does this other piece fit in and who does that and who does that best? I use for an example the employment equity piece that we brought down. We included with that piece a commission that will deal with complaints. Will that be helpful?
Ms Jamieson: Mr Martin, you have raised a number of issues and I'll try and respond to each of them as best I can. First of all, on the advocacy or educate question, I've said that I think one of the issues that needs to be settled is, what's the commission's role? Is it the advocate for the complainant against respondents or is it an independent investigative body?
I don't think you need to be an advocate to do the public ed. In my office, and I'll use myself as an example, the Ombudsman is an investigator. It's an independent, objective reviewer of a complaint and tries to find a solution if the complaint is supported. Part of that job is doing public education. The public needs to know what we do, how to access us, when to come to us and so on. That doesn't mean I'm an advocate for every complainant who walks in the door. I am not. I am the independent, objective, fair investigator. If I'm an advocate for anything, it's a fair solution where there's a problem.
In this case, what the commission is struggling with is an image of being an advocate for the complainant against the respondent as well as the investigative, independent body. They're seen at once as judge, jury and still kind of defence counsel. That's hard. That's a tough thing to do and I think that needs to be reconciled, but I don't think that if you're purely an investigative body, that means you can't do public ed. I think you're obliged to if you're providing a public service. We all have to do public ed, but I think you have to know what you're educating the public about. What's your role? What are you? So that's one thing.
Secondly, you talked about the influx of complaints. There's no question in my mind that as we talk more about human rights issues in this forward-looking province that we're all part of, people know more about their rights. They expect that they will be respected. They are speaking out as they never have before. I can just look at my own complaint load and tell you. People are demanding equity of service. So there's more work out there for all of us. I don't think that's necessarily a bad thing, though I think it is a challenge for all of us. Yes, there's more demand on the commission, even more reason why its processes need to be streamlined, because I don't see the tide going down. On the contrary, I think there will be more.
One of the things we can do is make it clear to people which agencies do which job, and make it very clear. Where's there's overlap, deal with it. Where there are gaps, deal with that. But make it much more easily understandable for the average person who's got a problem to know where to go and when. That's key.
Mr Martin: The question about the Employment Equity Commission and the complaints piece of that: I asked you if you felt that is a helpful thing to be doing. Here's an act that is obviously going to create some demand in terms of redress. We've put in a piece that will give people some access to that. Balance that with simply saying, "Use what's there already." Will that be helpful?
Mr Martin: No. The piece that the commission has to actually investigate complaints. There's a piece in the Employment Equity Act, with that piece, that gives people a forum for redress, that doesn't take it into that bottleneck we call the Human Rights Commission. It's at the Human Rights Commission at the moment because of the ever-growing case load that's out there. Is that a way to go?
Ms Jamieson: I have to be frank in saying that I'm not sure myself. I'm not sure if the public is where the line is between what's appropriate for the Employment Equity Commission and what goes to the Human Rights Commission. I think that is one area where it could be clearer. But I have not done an analysis of the Employment Equity Commission and I wouldn't propose to speak about it today without doing some homework. I hope that's okay.
Mr Martin: One other question, if you don't mind, is the question of public education. You had mentioned earlier that was going to be an important element of any redress of this issue. But I hear you saying your definition of "public education," particularly re your commission, and I'm asking you, from that, are you saying that the definition of "public education" for the Human Rights Commission is one of simply making sure that the public know what it is you do as opposed to public education around the question of the issue of human rights?
Ms Jamieson: I think you're quite right. It needs to go beyond that. I think its mandate is to be proactive and educate on the whole subject of human rights. I also think that my mandate is to educate the public on issues of fairness. With each of us, part of the job is to let the public know what you do and how to get to you. The other part of it is to talk to them about standards, what it is you're about, what you stand for, so that they understand what the expectation should be, who they're dealing with, when they walk in the door.
Mr Martin: I know myself that when I go out on behalf of my office in the Sault to let them know what we do, for weeks after I'm inundated with people from that particular meeting who see me, and then my problem that I'm just about getting my head out from under becomes all-encompassing again. Anyway it's a conundrum. Is that a good word?
The Cornish report recommends substantial and fundamental reform to the role of the commission, and it goes beyond addressing just the issue of delay, which is what this report is about. Are there any changes that you think we could lift from the Cornish report that might specifically address the delay problem, or do you believe that it would be unwise and we should go for a fundamental change, as the report recommends? You were looking at the delay. I have another question about timing. I can get an answer to this thing: Is there something in the Cornish report that we could lift out that would address the concern of delays?
Ms Jamieson: Without trying to deal with all the recommendations that are in the Cornish report, my own personal view is that it would be tempting but would not have very long life if we attempted to deal only with the delay issue in a little piece and internal to the commission. I think the commission and the public and all the review reports are asking for something beyond that. What the something is, how it will work, how it will be implemented, I really think should be a plan arrived at with the commission's full partnership and involvement. They know best, and I'm hopeful that they will be invited and that there will be an opportunity to work with them. That's my philosophy as Ombudsman. I investigate complaints, I find things that are wrong at times and I try to work with the agency to fix them. That's the best way to make change.
Mrs Haslam: I agree, and that brings me to my other point, which is timing. A major reform of the Human Rights Commission in changing legislation can be very time-consuming, because, as you say, it's not something you just bring into the House and, "There you are; work with it." You have consultations with the organization, you have consultations with the people who are affected, you have consultations in the communities that would be using it, and that all takes time.
So what are the potential consequences of delaying reforms six months to a year in order to have time? Because we also know that the commission has some new proposed initiatives. They are doing some streamlining; they are looking at changes in their case load and their management systems; they are trying to address the concerns that you have raised.
You've come back in and said it's not working because you only -- I can see the cases at the lower end and the longest cases being closed, I can see an increase in the number of cases coming in, I can see a potential problem in the middle in the case load, but they again have had other proposals coming in saying, "Here's what we're proposing to address those concerns."
Should we give a little more time to look at the impact of those proposals before we go into a major overhaul, or what kind of consequences are we looking at in a six-month-to-a-year delay in that area?
Ms Jamieson: I'm not sure that it might not be presumptuous of me to let you know what I think, but you've invited me; I'll answer the question. I think there's been an incredible amount of consultation, public input, public hearings. That's why we have a stack of reports on the Human Rights Commission. Timing, how long will it take? That's in the hands of the Legislature itself.
Mrs Haslam: That's really my concern, if I can interrupt you for just a minute. That's my concern, because we all know that drafting legislation is not done by one person or by one ministry. There are consultations around drafting legislation, introducing it in the House, doing second reading, getting it to a committee, having it in a committee for a number of weeks or over the summer or over the spring or over the fall, back into the House. Clause-by-clause can take weeks through committee work; back into the House for committee of the whole, if necessary; third debate. Even that is an extensive amount of time. So even if your bottom line is that we need the overhaul, it's not going to happen in two days or two weeks or two months.
Ms Jamieson: Right. I guess my point is, Ms Haslam, that yes, it will take time to implement, no question about it. I'm not naïve when it comes to the legislative process and I think it does take time. If we don't do it, I think one has to look at what the consequences will be.
Is it acceptable, the current record, the length of time? Is this acceptable enforcement of human rights in Ontario in 1994? I think no one finds it acceptable, including the commission. They are making internal changes that are necessary, and I am encouraged by those, but they need to be supported. If that's all that's done, I'm not sure you won't find us in a worse situation a few years down the road.
So if it takes time to do the overhaul, to put in place the legislative framework we need for the next century, for our children, for the new people who are going to come to Ontario to make it their home, I would want to start now.
Mr Gary Wilson: I just have a question, to ask you to elaborate on what you mean by streamlining the Ontario Human Rights Commission in its work. Could you just mention the main points you have in mind there?
Ms Jamieson: Just to say, Mr Wilson, that a number of those changes for streamlining I believe have been initiated and are being initiated and are presented in the documentation, some of it, that I received last Friday from the commission in preparation for today. I believe that there are others that could be considered, and I hope that attention will be brought on the middle group of cases, for one.
Ms Jamieson: I think one area that holds much promise is the identification of systemic issues by all staff. Is that kind of approach the norm approach in the institution as a whole? I think that will be a very effective tool which I commend to the commission.
Mr Bernard Grandmaître (Ottawa East): As you pointed out, new legislation or just fine-tuning the present legislation is time-consuming, and I think you repeated yourself twice that you need some support, and I agree with you. Do you have the feeling that it's not a priority for the government and this is why you're not getting this support?
Ms Jamieson: I think that remains to be seen. I am looking to the Legislature as a whole to take the steps necessary in partnership with the Human Rights Commission so that it can enforce human rights in this province effectively.
Ms Jamieson: Certainly I saw some very encouraging responses in 1991 from the Premier. I was hopeful that would do the trick. I think much broader reform is necessary, and that will take the support of the whole Legislature, I believe.
Mr Grandmaître: No, that's wrong, as you know. I know our Conservative colleagues are not here this morning, but I'm sure you would get this kind of support. I think it's got to be government-driven and you would have the support.
Ms Zanana L. Akande (St Andrew-St Patrick): Let me first apologize for being late but also tell you I've read this. The problem around the Human Rights Commission, first of all, I have to say, in terms of the speed with which it deals with the issues, is not a new one; it's a very old one that's being brought to this non-partisan committee. So we should be able to address it from the point of view that it's been around a long time and here we are again. I remember on the outside writing letters about the speed with which things were not dealt with. I suspect that on the outside I'll still be writing letters about the speed with which things are not dealt with.
I am always in favour of consultation. However, I think that consulting again around issues that have been identified by many different groups seems at best redundant, to say nothing of expensive. I'm really making a comment and then a question. I really am wondering myself if anyone, especially you, can give me any reasons or recommendations or ideas or some sense of why it should not be now that this is taken on. I ask that question of you and of my colleagues and of the opposition and of anyone else whose ideas may be creative in that area.
Ms Jamieson: I said earlier that I felt the time for study and reporting and investigating and criticizing was over. I think the time to move forward is now. I think that the commission itself needs to be supported in the efforts it's making. I think it needs to accept responsibility for its past, its present and its future and be supported in getting there, both in its internal initiatives and in creating a framework for it to move to the future. We need a body there that'll take this province to the next century and be at the forefront of human rights protection in the next century for our grandchildren. I think the time to start is now.
Ms Akande: Do you believe that the initiation of other commissions, pay equity, employment equity etc, is in fact seen as perhaps in some arenas an alternative to the Human Rights Commission and therefore there'll be a lesser need for the Human Rights Commission to be involved in that entire plethora of issues?
I ask that because that has been said to me, "Oh, well, you know, there are some issues that used to go the Human Rights Commission, but now they won't be going there because there's the Employment Equity Commission, there's the Pay" -- you know.
Ms Jamieson: One of the issues that I spoke to earlier was a proliferation of agencies, which I think is a concern. It's a concern and it's confusing to the public. I don't think the public knows what is supposed to go where and we spend a lot of our time helping them to understand the maze of government. I don't know what the message is to be gained from the creation of other agencies. Those issues must be dealt with, yes. That's a very positive message, but how we're going to deal with it, how we're going to make it easy for the public to access these things, will they understand it, I think that issue has to be dealt with because it's not clear right now.
Ms Akande: It becomes extremely important -- please tell me if I'm leaning on time. It becomes extremely important when you recognize that with the Employment Equity Commission -- in the legislation, employment equity, we made certain that people still had access to the Human Rights Commission, should there be that need. So it could be a two-step process. I'm not saying that it always will be; I'm saying it could be. And yet that is often given as a reason why the Human Rights Commission will be called upon less often to deal with issues: because these other commissions do exist.
Ms Akande: I'm not even sure it is a question. I'm just bringing it to the table to say there is an additional concern when you say that not only can people go to the Employment Equity Commission but they can also -- I'm just using that one as an example -- go to the Human Rights Commission on the same issue for other reasons.
Ms Jamieson: I think I said a little earlier that it's not clear to me where the lines are and I dare say it's not clear to the public where the lines are. That's something that we have to come to terms with as a society. What are we going to provide? Which rights are we going to respect? How are we going to enforce them? What's the priority?
We're very rich in this province with agencies and resources and rights and it's a constant challenge for us to make it clear to people when they come to us where do they go for what. That's one area that still isn't quite clear to me. What is clear to me is that there are priority matters and we're spending time and attention on them but I think it may well be a concern to a number of the agencies out there that there be some clarity as between them and as among them. The agency heads themselves, I'm sure, will tell you that.
Mrs Haslam: I'm going to have three brief questions. Do you continue to receive complaints about delay in the Ontario Human Rights? How do they compare with the numbers that you used to receive before you got into the investigation of it in 1989? And how does the number of complaints you receive about that commission compare with the number you receive concerning other government agencies that might be similar?
Ms Jamieson: I will just quickly run down the numbers, but say to you that, yes, we do. That was one of the issues that I outlined as of continuing concern for me. In 1989, 29; in 1990, 53; in 1991, 45; in 1992, 64; in 1993, 58. They do continue at about the same rate.
Mrs Haslam: Given that they've increased about 50% of the cases that have -- according to one table, it showed that the increase in the number of cases at the Human Rights Commission has increased by about 50%, I thought. Anyway, how does that compare with other crown, government agencies?
Ms Jamieson: I think it is higher, but I think there is probably a factor that needs to be taken into account. That factor is that it was widely known -- this has received some publicity -- that the Ombudsman was doing this investigation, that a report was tabled. That tends to advertise for complaints on its own. I can't tell you what percentage we should chalk up to that and what percentage we should chalk up to -- I can only tell you that the numbers reflect that it's about continuous; the same numbers.
Mr Cooper: This is probably a question that's better addressed to the Human Rights Chief Commissioner but, from your perspective, I know when people come to us, their problem is specific, individual and, as far as they're concerned, never applied to anybody else. In the Human Rights Commission, is there a lot of precedent-setting, such that when somebody comes in, they could say, "That's exactly the same as..." and they keep a list of that so they can see the specific area that needs to be addressed?
You're right: The person who comes in the door wants their issue dealt with and we attempt to do that. Sometimes you can deal with an individual's problem very quickly but know, when you've heard it, that it's an indication of a broader problem. We will then split that off, deal with the individual's concern so that they are satisfied and they're not held up, and we will take the other piece that's a broader issue, maybe a systemic problem, and deal with that in a broader investigation.
That seems to be what the public wants. They told us in a survey about two years ago that, yes, they want an answer for them, but they really want to know that it's not going to happen again to anybody else.
Ms Jamieson: I do, then, on my own motion, an investigation, which may be broader in scope. We'll then tailor the investigation to deal with the broader question that seems to be there. We might look at one department, we might look at several, we might look throughout government; it really depends on the issue.
Mr Cooper: You report directly to this committee, so there is direct access to get changes made. How about the Human Rights Commission? Do they have direct access anywhere or do they have to solve the whole problem before it comes back to us as legislators to change things?
Ms Jamieson: You will find that while I report to the Legislature through the Speaker, the Human Rights Commission does have a relationship with one of the ministries. That's where it reports through: the Ministry of Citizenship.
Ms Jamieson: My mandate's very specific and the process I follow is set out in the act. The only time I bring it to the Legislature is if I cannot convince government to take the appropriate steps to respond to my recommendations. That's the only time I get to the Legislature on a subject.
Mr Martin: I want to continue on with somehow trying to put this into some kind of context so that we can understand if what we're proposing here is doable or not, or realistic. You suggest that we bring this to the whole Legislature for view. I guess in bringing it there, we as politicians in that political arena need to consider a number of things. One of them certainly is the issue of the climate within which the Human Rights Commission now operates, which is one of tremendously difficult economic challenges, people out there very worried about their circumstance and seeing, if I might say, bogeymen behind every tree.
The other question I have is, given the very interesting, to say the least, campaign waged by the Conservatives in Victoria-Haliburton just recently, what impact does that kind of politicking have on the whole question of how we deal with human rights in this province and the issue of, number one, people feeling free to bring them forward, feeling free to ask for what is rightfully theirs and the other question of the public being whipped up to some degree into a frenzy of seeing anybody asking for their human rights as a threat to a way of life that we've come to know as sacred in this province, or something to that effect?
Ms Jamieson: I think we are at a time when the economy is suffering, where we are all seeing an increase in complaint load. I certainly am. I think that, yes, part of that is the economic circumstance. Part of that, though, is also that we are more aware than we ever have been before of our rights. Part of that is we are more able and willing to make our voices heard when we don't get the standard of service or treatment that we're entitled to. I think those are all parts of the equation.
I think when you find that the economy is bad, people are scared, and we all are, and are insecure about the future, we all look for comfort. Sometimes that comfort is found in the extreme point of view. We see that, and that creates its own cycle, because then you have another extreme develop to respond to it. Those all manifest themselves in behaviour that we might not always find acceptable and might translate into complaint load. I don't know how much of the increase in the commission's case load you can chalk up to the times, the extremism. Probably some of it.
Ms Akande: May I suggest too that there are other advantages and disadvantages that occur when the job market is tight or when there are many jobs. I think that when there are many jobs out there, another problem occurs. Correct me if I'm wrong in this, but it would seem to me if a person lost their job and had even a legitimate human rights case, if it was a simple matter to get another one, the likelihood of their taking it to human rights might be less than in times when there are not as many jobs out there. But then that speaks, to me, to an even greater need to hurry up the process.
Ms Jamieson: I would agree with that. I think there is certainly that element there as well. Some people may be less likely to make an issue. Let's remember, we have many people who are making Ontario their home who have come from countries where complaining is not a good thing to do. I deal many times with people who -- we know that the level of complaint we're getting is just representative of what's out there. I suspect that's absolutely true for other bodies, like the Human Rights Commission. I think the times do draw a particular landscape for a lot of why what's happening is happening to all of us.
The Chair: Thank you, Ms Jamieson. If there are no more questions, we can adjourn this meeting till next Wednesday at 10 o'clock, when we are going to meet with the commissioner of the Human Rights Commission.