Ontario Human Rights Commission perpetrates Human Rights Abuses
by S. Pieters
For the past five years the Ontario Human Rights Commission has been subjected to criticisms about the way in which it mishandles race based complaints. Now it is emerging that the Ontario Human Rights Commission violates the equality rights of its Black staff members. The Ontario Human Rights Commission according to staff members is known to have a history of racial turmoil, with staff members divided along racial lines. To make matters worst, there is little or no communication between staff of different races. As well, Black staff members complains of marginalization, while the Jamaican members of the Commission are referred to as the "Jamaican Mafia."
At the Toronto Central Office, three Black staff members filed complaints against the Ontario Human Rights Commission alleging that it was systematically racist both in terms of how it treats Black clients and Black Staff Members.
In 1996, a Regional Manager of African-Canadian Origin was fired from the Ontario Human Rights Commisson due to a state of war between staff members of various races at the Toronto West Office. He has filed a complaint with the Public Service Labour Relations Tribunal which is now hearing the matter at 400 Uniersity Avenue, 21st Floor in Toronto.
Several Black Staff members are on Long term disability as a result of Physical and Mental illnesses arising out of the poisoned work atmosphere at the Ontario Human Rights Commission. One such staff member has recently filed a complaint with the Ontario Labour Relations Board alleging that the harassment, poisoned work environment and the reprisal actions of the Commission's management has adersely affected her health and safety in contravention of the Occupational Health and Safety Act.
Of concern also is the high staff turnover at the Ontario Human Rights Commission offices in the Greater Toronto Area.
The high staff turnover, racial infighting at the Ontario Human Rights Commission, its failure to fulfil its statutory mandate in combatting prohibited forms of discrimination and harassment, and the excessive delay, poor service and the denial of justice to complainants who turn to this organization as a last resort speak volumes about the disregard the Government of Ontario have for the human rights, dignity, worth and well-being of insular and discrete minority groups in its society.
In 1993 the Ombudsperson of Ontario, Roberta Jamieson, released a report into the Ontario Human Rights Commission. She expressed concerns about the lengthy delay complainants face in having their complaints investigated, the poor client service and the failure of the Commission to properly exercise its statutory mandate. Little has been done to remedy this situation. The Special Report of the Ombudsman Ontario following her investigation into the Ontario Human Rights Commission made several recommendations none of which are accounted for by the Commission thus far. This has led to further criticism of the Ontario Human Rights Commission, this time by the U.S Department of State in its report, Canada Country Report on Human Rights Practices for 1996 [See Section 5 of Report under subtitle "Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status."]
The difficulties faced by complainants led to a complaint against the Commission by Monica Simms. She alleged that she was treated poorly by OHRC staff and was subjected to racism by Commission staff. An investigation was conducted which resulted in the "Simms/Justason Report". This only served to exacerbate an already poisoned work environment for Black OHRC staff members.
The Ontario Human Rights Commission launched an investigation into the break and enter of its Black staff members offices where complainants files were removed. The investigation report called the "Vinglis report" caused several resignations at the Ontario Human Rights Commission.
Further to that the OHRC commissioned another investigation and report known as the "Francis Henry Report" to look into the issues of racial tensions and associated problems at its field offices in the Greater Toronto Area. Dr. Henry conducted her investigation and produced a report recommending ways in which the Ontario Human Rights Commission can foster Equal Opportunities for its staff members.
Then came the Minors Report which followed yet another investigation conducted by Arnold Minors, an anti-racism consultant. He was hired to review, report on, and make recommendations about the Commission's policies, practices and procedures, with respect to employment, in order to assist the commission in eliminating racism at its offices.
The Donna Young Report and the report entitled Dysfunction in the Ontario Human Rights Commission pointed out numerous instances where race based complaints are mishandle, and dismissed by the Ontario Human Rights Commission due to poor investigative practices, misapplication of the law, a lack of will on the part of the Human Rights Commission to enforce the Code and a lack of knowledge on the part of staff and Commissioners on critical race based theories, law and analysis. These reports made recommendations to improve the handling of race based complaints from Intake, Investigation to Board of Inquiry stages of the process.
All of the reports above recognised racism in the internal mechanisms of the OHRC, and made recommendations to eliminate the adverse conditions under which Black Staff members work and black clients are served. However, the Ontario Human Rights Commission failed to implement the recommendations, and when it did, refused to follow through with their full implementation.
In Ontario, race discrimination is still an issue. While racial discrimination and harassment in employment is the second largest ground of complaint before the Ontario Human Rights Commission less that 3% of complaints filed with the Ontario Human Rights Commission proceed to a an actual hearing before a Board of Inquiry.
Complainant have now attempted to use other tribunals to hear their cases and grant the a remedy. The Ontario Human Rights Commission statutory mandate is to remedy racial discrimination:
The Code clearly prohibits discrimination and harassment on the basis of race. In section 5 of the Code, these prohibitions are expressly stated to apply in the workplace and with respect to employment:[emphasis added]
"5.--(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap. R.S.O. 1990, c. H.19, s. 5.
It is also the case that the Code prohibits reprisal conduct against a person for having attempted to assert rights under the Code including rights with respect to discrimination and harassment on the basis of race in the workplace:
"8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. R.S.O. 1990, c. H.19, s. 9."
Part IV of the Code provides an extensive grant of authority to the Commission to receive complaints that the Code has been breached, to investigate and if necessary to seek adjudication. In particular, sections 32(1) and 33(1) and 36(1) state the following, all of which apply to complaints of harassment and discrimination on the basis of race or reprisal conduct for same, in the workplace:[emphasis added]
"32.--(1) Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission.
33.--(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.
36.--(1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry. 1994, c. 27, s. 65 (12)."
Not only does the Code contemplate that the Commission should possess a particular expertise with respect to human rights matters, but there are provisions which expressly proide for a race relations expertise. Sections 28 and 29 (f)(g) and (h) of the Code are as follows [emphasis added]
"28.--(1) The Lieutenant Governor in Council shall designate at least three members of the Commission to constitute a race relations division of the Commission and shall designate one member of the race relations division as Commissioner for Race Relations.
(2) It is the function of the race relations division of the Commission to perform any of the functions of the Commission under clause 29 (f), (g) or (h) relating to race,ancestry, place of origin, colour, ethnic origin or creed that are referred to it by the Commission and any other function referred to it by the Commission. R.S.O. 1990, c. H.19, s. 28.
29. It is the function of the Commission,
(f) to inquire into incidents of and conditions leading or tending to lead to tension or conflict based upon identification by a prohibited ground of discrimination and take appropriate action to eliminate the source of tension or conflict;
(g) to initiate investigations into problems based upon identification by a prohibited ground of discrimination that may arise in a community, and encourage and co-ordinate plans, programs and activities to reduce or prevent such problems;
(h) to promote, assist and encourage public, municipal or private agencies, organizations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination."
Having regard to the provisions of the Code there can be little doubt that the legislature clearly intended the Commission to deal with complaints of harassment and discrimination on the basis of race, including reprisal complaints... [emphasis added]
The Ontario Nurses Association (ONA) has filed an application in the Ontario Courts of Justice (General Division) asking the court to make a ruling on the manner in which the Ontario Human Rights Commission interprets and applies section 34 of the Ontario Human Rights Code to female employees whose employment is covered by a Collective Agreement with a trade union. This legal action was brought about after the Commission has refused to exercise its jurisdiction and investigate complaints of systemic discrimination against employers when it is brought to the Commission's attention by Unionized employees, claiming that the Ontario Labour Relations Board is the proper forum to hear such complaints.
The applicants has asked to court to rule that Human Rights matters are central to the jurisdiction of the Ontario Human Rights Commission and as such the Commission should always exercise its jurisdiction to hear such matters because the Ontario Human Rights Code takes primacy over all others statutes in Ontario.
It is a shame that in Canada's most important region racial minority workers who are subjected to personal, systemic, and institutional human rights abuses have to resort to the courts to get the Ontario Human Rights Commission to do its job.
Unfortunately, the Government of Ontario is contributing to this situation by cutting the budget of the Ontario Human Rights Commission and weakening the Human Rights laws in the Ontario.
This is a sad state of affairs in Canada, one of the world's leading industrialized nations, when workers have to resort to the courts to get the Ontario Human Rights Commission to fulfill its statutory mandate in remedying prohibited discrimination on a personal, systemic and institutional level. It must be noted that in Ontario individual who have suffered from racism cannot bring a tort action in the courts, they can only resort to the Ontario Human Rights Commission.
Legislative action is required in order to deal with the situation at the Commission which is perpetrating the same conduct and behavior that complainants turn to it to eliminate. We are asking that this body be significantly reformed so that it can filfil its mandate and protect vulnerable minority workers who are discriminated against in the employment for no other reason than their personal charactersitics. Alternatvely, if significant reforms are impossible then the Commission should be scrapped and another organization be created to handle the investigation of human rights abuses in Ontario.
As of May 05, 1997, the Toronto-Central, Toronto-East and Toronto-West offices of the Ontario Human Rights Commission has closed. Complainants can now have their complaints filed, processed, mediated and investigated at 180 Dundas Street West on the 7th Floor. The centralization of its service to clients according to preliminary reports has been a bureaucratic fiasco, compounded by the usual delay in processing and investigating complaints. As well, the mediation system which is now in its infancy is not working due to the power inbalance powerful management lawyers + powerless complainants who cannot afford lawyers + untrained human rights mediators = a denial of any meaningful remedy to the complainants. The Commission is sliding further into an abyss.
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