The National Indigenous Peoples History month is traditionally a time when Indigenous and non-Indigenous communities come together across Turtle Island to celebrate Indigenous culture and achievements as well as learn about Indigenous social structures, languages and spirituality to name only a few aspects of complex Indigenous social systems.
Regardless of where or how you recognize this month though, National Indigenous Peoples History month also implores us all to remember the various atrocities committed against Indigenous communities and peoples across Turtle Island. We must all take pause to honour the survivors of the Residential School system and Sixties Scoop, as well as countless other Indigenous peoples continually subjected to violence and discrimination by law enforcement agencies and colonial systems.
This month asks us to understand that colonization was not an isolated event of this nation’s history but is present today as a structure, revealing itself through systemic discrimination, boil water advisories, gendered and lateral violence, as well as unwarranted prejudice and ignorance amongst non-Indigenous communities.
Our call to action for National Indigenous Peoples History month is this: Instead of saying “I didn’t know”, learn. Commit to engaging in the uncomfortable conversations within the justice community as it grapples with realities of anti-Black and Indigenous racism and genocide.
Indigenous Services offered at the Human Rights Legal Support Centre employs Indigenous staff who provide services at every stage of the Ontario Human Rights Tribunal process and works to increase access to justice in Indigenous communities.
June 12, 2020
“It is not possible to be in favour of justice for some people and not be in favour of justice for all people.” – Martin Luther King
The events of the past few weeks have pushed the issue of Anti-Black racism back to the forefront of society. We mourn the death of Regis Korchinski-Paquet, we’re outraged by the death of George Floyd in the custody of police, and we’re angered by the antics of Amy Cooper against Christian Cooper in Central Park. Sadly, countless other incidents of harassment and violence against Black people, as they go about their daily lives, can be added to this list. It’s time for change.
Anti-Black racism is never acceptable. Racial profiling, over-surveillance, excessive and lethal force – all forms of racial discrimination— in law enforcement are never acceptable. This, clearly, isn’t solely an issue for the Black community. Racial discrimination in law enforcement is a pressing concern for all racialized communities. Indigenous communities in Canada have been severely affected by racial injustice. Although the examples are countless, recent incidents include the abuse of the Inuk man in Nunavut and the death of Chantel Moore in New Brunswick. We feel all these recent tragedies and we mourn the losses of life. We must do better. We can’t let these incidents fade into history without embracing the opportunity to address the issue of all forms of racism against racialized people in our society.
We call on the justice system to look at their policies and practices and make changes where required to ensure that all citizens – regardless of race – are treated fairly. We call on our democratic leadership to acknowledge that systemic racism exists in our society, and we implore them to courageously push for reforms to address racist attitudes that are ingrained in the fabric of our society. We challenge all individuals to follow the example of the young people (of all races and backgrounds) who are engaging in peaceful protests around the world. We stand with all those who demand justice for those who are victims of discrimination, hate and violence.
As human rights advocates, we actively work to protect and promote human rights, and that includes arguing cases at the Human Rights Tribunal where individuals have experienced harmful events related to their race at work, school, or in receiving services. As an organization made of individuals dedicated to this cause, we can and will actively resist, and actively support. We stand in solidarity with the organizations working to advance equality for Black, Indigenous, and other racialized communities in Ontario.
Small Claims Court Monetary Jurisdiction Increases to $35,000
The Small Claims Court is a branch of the Superior Court of Justice. It is a very busy court and handles nearly half of all civil claims in Ontario. The monetary jurisdiction of Ontario's Small Claims Court increased effective January 1, 2020. The jurisdiction of the Court will increase from $25,000 to $35,000. The claims limit of $25,000 has been in place since 2010 when it was increased from the previous $10,000. Claims over $35,000 would need to be brought in the Superior Court of Justice.
What does this mean for applicants at the HRTO? It means applicants seeking to enforce their judgments obtained at the HRTO up to $35,000 can now use the faster, more accessible and more affordable enforcement process at the Court. This is an important development in creating better access to justice for Ontarians choosing to represent themselves or who are unable to afford the servicers of a lawyer or paralegal.
See the government press release here.
Supreme Court of Canada Revisits and Restates the Standard of Review
The Human Rights Tribunal (HRTO) is subject to judicial review by the courts under the Human Rights Code. This means that the courts have the final say about whether an HRTO decision complies with the law. An important part of judicial review is what is called the standard of review, which is a standard the court applies to the HRTO decision. There are two standards of review – correctness and reasonableness. Which one applies to the HRTO? The answer is – it depends on the nature of the legal question being reviewed by the court but, in almost every case, the standard applied to the HRTO will be reasonableness.
On December 12, 2019 the Supreme Court of Canada (SCC) released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII). The SCC found that courts should presumptively review administrative decisions on a standard of reasonableness, except in two types of situations. The first exception is where the legislature has indicated that it intends a different standard to apply such as where it has explicitly prescribed the applicable standard of review. The second situation is where the rule of law requires that the standard of correctness be applied, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. What does this mean for parties whose HRTO decision is being judicially reviewed at the Divisional Court ? It means that you can expect that the Court will adopt a deferential and respectful approach to the HRTO decision under review and the standard applied will be reasonableness, unless the judicial review raises constitutional questions. questions of law of central importance to the legal system as a whole, or questions of law related to the jurisdictional boundaries between two or more administrative bodies.
See the full decision here.
See media coverage here.
HRTO releases first decision interpreting the Tribunal Adjudicative Records Act, 2019: Public access to HRTO records is the default position under the open court principle
In June 2019, the Tribunal Adjudicative Records Act, 2019 (“TARA, 2019”) came into force. This was an important legislative development for those seeking access to justice in Ontario’s administrative tribunal sector, including applicants to the Human Rights Tribunal of Ontario (HRTO).
The TARA, 2019 was the provincial government‘s legislative response to Toronto Star v. A.G. Ontario, 2018 ONSC 2586 (CanLII), an April 2018 decision of the Superior Court of Justice, which found provisions of the Freedom of Information and Protection of Privacy Act (FIPPA) were in violation of section 2(b), the freedom of expression provision, of the Canadian Charter of Rights and Freedoms. The impact of Toronto Star was to make public access to tribunal adjudicative records accessible and analyzed largely in the same way and to the same extent as in the courts. The courts have long recognized the “open court” principle which holds that public confidence in the judicial system is enhanced by openness, transparency and publicity. The TARA 2019, like in the courts, puts the onus on the person seeking to deny public access to tribunal records to justify the departure from this open court principle. Therefore, a tribunal’s adjudictative records, unless expressly exempted, including records at the HRTO, are, in effect, accessible to the public unless the tribunal orders that a record, or part of a record, is confidential and need not be disclosed.
Under section 2(2) of TARA, 2019, in order to treat a record as confidential, that i) matters involving public security may be disclosed; or ii) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public. Note that the TARA, 2019 will apply to adjudicative records in all proceedings before the HRTO that are commenced on or after TARA, 2019 comes into force (i.e., June 30, 2019).
Recently the HRTO issued its first decision interpreting these provisions of TARA, 2019. In Grange v. Toronto (City), 2019 HRTO 1550 (CanLII), the Toronto Star sought to access HRTO records in case involving a City employee who alleged that the City and other City employees discriminated against her in her employment. The City opposed the Star’s request for the records. The main issue was whether the HRTO should grant an order restricting access to the records under section 2(2).
The HRTO ruled that a confidentiality order was not appropriate. Although the HRTO found the information contained in the records sought by the Toronto Star were personal and sensitive, this was insufficient to override adhering to the open court principle. The HRTO did not satisfy the privacy interests of the City employees named in the HRTO records warranted tipping the balance away from what is described as the “bedrock constitutional principle of openness.” The HRTO noted that decisions to provide adjudicative records without restrictions would have implications for many of the individuals whose information is released, including discomfort, embarrassment and worse. The HRTO further acknowledged that these were very real concerns for those affected. However, the shift to openness means that information which is merely personal or sensitive is not enough on its own.
Grange did not answer every question related to the interpretation of TARA, 2019 but one thing is clear – in this new era of tribunal openness, a person or organization seeking to restrict access to HRTO records faces a heavy burden and a high threshold to deny access where requests are made. Each case is different and will turn on its own facts and must be considered in its own context. However, the open court principle will generally have primacy over the privacy interests of the parties. If making an application to the HRTO or other administrative tribunals, an applicant should be aware that very personal information may be accessed by third parties, including media organizations. It is fair to say that it will require the type of extraordinary circumstances set out in section 2(2) of the TARA, 2019 to justify a departure from the new, as it were, “open tribunal” principle. Sensitive personal information, including names, contact information, medical, financial, educational, or employment information, and any documents submitted to the HRTO as part of the adjudicative process may become public.
Finally, the TARA 2019 authorized the HRTO to make its own rules governing the procedure for access to records but to date the HRTO has not made any specific rules. Note, however, that Tribunals Ontario, of which the HRTO is a member, does have a policy posted that sets out the applicable procedure and is available here.
The text of the TARA, 2019 is available here.
The text of the Regulation providing that certain statutes prevail over TARA, 2019 is available here.