by S. Pieters, B.A.
The enforcement of the Human Rights Code by the Ontario Human Rights Commission is necessary to redress systemic discrimination in employment.
In cases where there exist of systemic discrimination in employment, and the need for systemic remedies to redress such discrimination; the refusal of the Ontario Human Rights Commission to deal with the matters in a manner contemplated by sections 28 and 29 of the Code goes to the ineffectiveness of this institution in combatting racism and its discriminatory use of section 34(1)(a) of the Code to rid itself of its responsibility in this regard.
The Ontario Human Rights Code clearly contemplates in sections 5, 9 and 11 that the Ontario Human Rights Commission would work in the interest of society to remedy complaints based on race in employment.
As well, the Code clearly recognize the historical disadvantage to which racial minority person are subjected and in this regard provides for a race relations division within the Commission. Sections 28 and 29 (f)(g) and (h) of the Code are as follows
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.
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."
Part IV of the Code provides the Commission with the investigative, policy and public education, remedial and conciliatory processes available at the Commission in order to resolve the human rights issues such as that which many racial minority complainant bring before it.
Under section 34(1)(a) of the Code, the Ontario Human Rights Commission may decide to dismiss a human rights complaint prior to investigating it where it decides that the subject matter of the complaint could have or should be more appropriately dealt with under some other provincial statute.
By using section 34(1)(a) of the Code to exclude unionized racialized minorities from the mechanisms which the Code provides the Commission and/or a Board of Inquiry to eliminate systemic discrimination in employment, the Commission is communicating to the members of the designated groups a complete disregard for their human rights. The overall effect of Commission’s refusal to deal with complaints is that members of racial minority groups, particularly African Canadians, are regarded as less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration which the Supreme Court of Canada has recognized as a discriminatory effect.
Recent Examples
Mr. Weekes is a former Correctional Officer with the Ministry of the Solicitor General and Correctional Services. On December 13, 1990, Mr. Weekes filed a human Rights Complaint against his employer alleging discrimination with respect to race and colour in his employment as a Correctional Officer at the Metro Toronto East Detention Centre. This complaint involved allegations of differential treatment in respect to promotional opportunities and advancement within the Ministry. He alleged that between 1983 - 1989, white officers who were not as qualified as him were selected for promotional opportunities, career advancement, and career development through secondments. Mr. Weekes had applied for several promotional and career advancement opportunities but his applications were denied on the basis that he does not have the requisite qualifications. Mr. Weekes further alleged that the Ministry denied him his equality rights and took reprisal actions against him in contravention of 5(1) and 8 of the Code. The Commission declined to deal with this case under s. 34(1)(a) of the Code on this basis that the matter can be more appropriately dealt with under the provisions of the Crown Employees Collective Bargaining Act. This rationale was also used to dismiss complaints filed by Audra Fernandes a Correctional Officer (as she then was) employed by the Ministry of the Solicitor General and Correctional Services at the Toronto Jail.
In the case of Helen Lee v. Toronto Hydro, Ms. Lee an employee of Chinese origin filed a complaint alleging that she has been subjected to racism and reprisal actions by her employer, Toronto Hydro, contrary to s. 5(1), 8 and 9 of the Code. The Commission declined to pursue Ms. Lee's complaint on the basis that the matter can be more appropriately dealt with under Labour Relations Act. In commenting on the decision of the Commission to decline to deal with Ms. Lee's human rights complaint Vice-Chair Whitaker of the Ontario Labour Relations Board expressed his disgust with the Commission in the reasons cited below:
Should the Board exercise its discretion to inquire into this matter where it would not otherwise, only because the Ontario Human Rights Commission has deferred to the arbitration process and the applicant has abondoned her attempts to proceed to arbitration? In my view it should not. It is difficult on any reading of the application, to see how the Commission could have concluded that the matter is dealt with more appropriately by arbitration, particularly when CUPE who had carriage of the grievances, had decided not to proceed with them at the time that the Commission dealt with the issue of deferral. Right or wrong, the Commission's decision in this regard is not binding on the Board. If the Board were to proceed with the present application on this point, it would in fact be permitting the Commission to decided how the discretion to inquire under section 50(3) of the OHSA should be exercised. In other words, the decision as to whether the Board should inquire or not, would be depended only upon whether the Commission would proceed with the complaint before it....
Mr. Weekes and Ms. Lee has both filed applications for judicial review in Divisional Court.
At the core of the majority of race based complaints which the commission refused to deal with pursuant to section 34/(1)(a) of the Code are incidents in the workplace of personal, and systemic racism where the Commission and a Board of Inquiry have specific expertise to deal with the public interest issues at stake. In this regard the Commission should continuously declined jurisdiction in matters involving unionized on the basis that “the provisions of the Labour Relations Act (Crown employees Collective Bargaining Act) could more appropriately deal with the issues raised in the complaint”.
The Effect
In refusing to deal with complaint filed by unionized members of racial discrimination in employment filed under sections 5(1), 5(2), 8, 9 and 11 of the Code the Commission denies to these complainants the benefit of a system:
a. That provides for impartial investigations, conciliation and adjudication of race based complaints, and
b. That provides in section 28 for a special branch of the Commission with specialized expertise to have a particular focus on issues of race discrimination.
Systemic discrimination has been described as follows in the Abella Report at p. 2 as follows:
Discrimination ... means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics.
. . . .
It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.
. . . .
This is why it is important to look at the results of a system.
Are racial minorities subjected to differential treatment (Systemic Discrimination) in the provision of service at the Ontario Human Rights Commission?
The Equal Opportunity Consultants in their report entitled An Organizational Review of the Toronto West Regional Office of the Ontario Human Rights Commission noted that:
The perception of racial bias and discrimination within the Commission is shared by those members of staff who are black and Native Officers; they feel that over the years they have experienced differential treatment because of the colour of their skin. In the past, when they complained to management of unfair treatment, “they were labeled trouble makers”. ...
There appears to be insufficient understanding or awareness of how racism operates in its more subtle and insidious forms.
There is... the belief among some black staff that race related complaints are placed at the bottom of the pile, are dealt with in a slower and less efficient manner. Some Black officers feel that white staff sometimes do not pay serious attention to race related complaints.
In 1993, the Ombudsperson of Ontario, Roberta Jamieson, released a Special Report of the Ombudsman Ontario following her investigation into the Ontario Human Rights Commission. In that report, which was presented to the legislature of Ontario, the Ombudsperson expressed concerns about the failure of the Commission to properly exercise its statutory mandate. The Ombudsperson observed that:
The Commission’s conduct appeared to have significantly undermined and perhaps even nullified the effectiveness of the Commission’s processes, and prejudiced both complainants and potential respondents in respect to rights to expeditious proceedings, fair hearings and timely remedies. In the circumstances illustrated by these cases, it appeared that the Commission’s conduct was tantamount to a failure to enforce the Code effectively.
Then came the report entitled “Dysfunction in the Human Rights Complaint System: Brief of the Coalition for the Reform of the Ontario Human Rights Commission” in November 1995 which lamented the failure of the Commission to properly exercise its mandate under the Code.
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. In Section 5 of Report under subtitle "Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status" it noted that:
“The Ontario Human Rights Commission was criticized for its enormous backlog of cases, three- quarters of which are employment based, and for the procedures used to reduced the backlog. The criticism included charges that cases were dismissed after commission-caused delays, that basic rules of evidence were not followed by the commission staff, and that the investigative process was neither open nor accountable. ...”
In a press release dated March 20, 1998, the Commission announced that race discrimination complaints constitutes the second highest ground of discrimination complaints which its received:
On the eve of March 21, the Day for the Elimination of Racial Discrimination, Chief Commissioner of the Ontario Human Rights Commission, Keith Norton said today that race discrimination is still a fact of life for many in Ontario. “The Ontario Human Rights Code was enacted 36 years ago to promote equality. We continue to receive more than 400 discrimination complaints a year on the ground of race and on similar grounds, mainly in the area of employment,” the Chief Commissioner said. Race complaints form the second highest ground of complaints to the Commission. Last year the Commission received 404 complaints, comprising 21% of all its new cases on the grounds of race, colour and ancestry. Another 71 complaints (4%) were on the ground of ethnic origin. ”Employers and landlords who are reluctant to hire certain individuals or rent property to persons because of race, colour, ancestry or ethnic origin, should be reminded that they are violating the Ontario Human Rights Code and denying those persons rights that are theirs by law”, Mr. Norton said.
In another press release dated November 24, 1998, the Commission announced that it has “decided that there was enough evidence to warrant sending 25 cases to boards of inquiry for hearings.”
None of the 25 cases cited above involved race, colour, ethnic origin, and/or Ancestry despite the fact that race based cases constitutes the second highest ground of discrimination complaints which the Commission receives. In addition, at least thirteen of the 25 cases sent to a Board of Inquiry occurred in unionized workplaces.
Further, in the 1997/1998 report of the Ontario Human Rights Commission it reported that no Boards of Inquiry were appointed to deal with cases of racial discrimination in employment, and 151 cases were dismissed or not pursued by the Commission.
As noted recently in an editorial on the Ontario Network for Human Rights homepage, the Commission is promoting racism in Ontario by permitting racial discrimination and harassment to continue unabated in employment and in the provision of service to African Canadian complainants:
Ultimately, the quality of a country's democracy depends on the ability of its public institutions to serve the public well. In Ontario Canada, employees who file race discrimination complaints to the public institution set up to investigate and remedy racism in the workplace face the cold shoulder. The Ontario Human Rights Commission still continues to treat race discrimination complaints and the complainants with utter disregard, even as the Ontario Human Rights Commission admits in a... press release dated March 20, 1998 that Race Discrimination Still An Issue in Ontario: Second Largest Ground of Complaint. According to a ... press release on November 24, 1998, the Commissioners at the Ontario Human Rights Commission recently sent 25 complaints to a Board of Inquiry/Tribunal for resolution none of which deals with the issue of racism in the workplace. And the Commission and its Commissioners cannot credibly argue that there isn't a great deal of racism occurring in Canada, especially in its prosperous province of Ontario. Since the Ontario Human Rights Commission continues to not send race cases to boards of inquiry/tribunal then we need to seek external help to pressure this commission to do the job that our taxpayers dollars is paying its staff to do. But since the Commission is still not providing equal service to race discrimination complaints here are some possible reasons and solutions.
First, the Commissioners and staff should be screened the same way jurors are screened for probability of being racist. Since this public institution has no way of knowing whether its Commissioners or staff are indeed racially biased against sending race cases to Boards of Inquiries, this may account for the omission of Race Cases from the 25 cases that were sent to a board of Inquiry for hearing... ...in Ontario Canada, race cases are at the whims of staff and commissioners at the Ontario Human Rights Commission who practice the same forms of racism that they were appointed to eliminate.
The Ontario Human Rights Commission “Guidelines and Recommendations For Dealing with Race Cases from Intake to Board of Inquiry” makes it clear to decision makers at the Commission that:
It is the Commission’s role to highlight society’s legal obligation to remedy the inequalities experienced by those who are historically disadvantaged.
Employers, Service Providers, and Personal Respondents who discriminate on the basis of race have all realized that the Commission the failure of the Commission to exercise its mandated under sections 28 and 29 (f), (g) and (h) of the Code and the reluctance of the Human Rights Commission to appoint Boards of Inquiry works in their favor. In such cases even if perpetrators of racial harassment and race discrimination are reported to the Human Rights Commission there is no justice for complainants, especially African Canadian complainants like myself because the Commission and its staff are biased against the complainants in race based cases.
The Courts has judicially recognized the prevalent nature of anti-black racism in Ontario. There is abundant and uncontradicted evidence of historical disadvantage and racism faced by designated groups, and in particular, African Canadians and other racialized groups particularly in the Criminal justice system. Overt, unconscious and systemic racism against African Canadians is particularly virulent and pervasive in Canadian society to such a extent that it has been described judicially as being “part of our community’s psyche”. African Canadians are among the primary victims of the “evil of racism”. Nowhere does this “evil of racism” impact more adversely on African Canadians than in the economic arena, specially, in the employment setting.
The historic disadvantage of African Canadian is undeniable. Our history in Canada is one of slavery, segregation, economic marginalization and legally sanctioned discrimination. The Steven Lewis report noted:
First, what we are dealing with, at root, and fundamentally, is anti-black racism. While it is obviously true that every visible minority community experiences the indignities and worlds of systemic discrimination through out Ontario, it is the Black Community which is the focus. It is Blacks who are being shot, it is Black Youth that is unemployed in excessive numbers, it is Black students who are being disproportionately streams in schools, it is Black kids who are disproportionally dropping out... It is Black employees, professional and non-professional on whom the doors of upward equity is slam shut.
In R. v. Williams, the Supreme Court of Canada noted the ”insidious nature of racial prejudice” ....”buried deep in the human psyche” and that “racial prejudice and its effects are as invasive as they are corrosive.” (paras. 21-22).
In a decision with respect to the termination of a Black manager of the OHRC (unreported, December 08, 1998), the Public Service Grievance Board echoed similar concerns in a decision of 162 pages. On page 143 the majority of the panel noted:
The evidence before us shows the Toronto West office was a racially tension-filled workplace. This is also evident in Dr. Henry’s report which stated that:
"...relations between white and black staff in the regional office was torn by racial tension, mutual distrust and mutual suspicion. Collegiality was absent, interpersonal conflicts were frequent."
These experiences are rarely dealt with or contextualized at the Ontario Human Rights Commission. One reason for this lack of contextualization may be that:
“non-white” groups have been either subordinated to, or marginalized from, the Canadian legal system that it has been unreceptive to their experiences, perceptions, concerns or complaints. In other words, the issue of race has been a non-question in the law of judicial bias.
The 1989 report Eliminating Racial discrimination in Canada also observed that:
Racism and racial discrimination are facts of life in Canada. They exist openly and blatantly in the attitudes and actions of individuals. They exist privately in the fears, in the prejudices and stereotypes held by many people, and in plain ignorance. And they exist in our institutions.
The Guidelines and Recommendations For Dealing with Race Cases from Intake to Board of Inquiry, Ontario Human Rights Commission noted that:
The decision to create distinct procedural guidelines relating to issues of race and “race cases” was based on a number of historical factors... [including] concerns that racism exist within the Commission....
Certain factors have negatively affected the Commission’s history with respect to this issue: a series of losses in race cases taken to Boards of Inquiry; a lack of Commission guidelines and training specific to race cases; delay related barriers; a critical media response to the commission’s attempt to deal with race-related issues. These factors had the unwelcome impact of undermining the confidence of Commissioners and staff with respect to their ability to deal effectively with race complaints.
Systemic discrimination in provision of service at the Commission can be described as a web of direct and indirect barriers, embedded in the accepted norms shaping Commission’s rules, policies and practices, that have the cumulative effect of excluding members of disadvantaged racial minority groups from equal access to and treatment in the provision of service at the Commission related to the handling of race based human rights complaint. These barriers both reflect and reinforce the discriminatory attitudes that are relied on to rationalize the exclusion or under-representation of racial minority groups particularly African Canadians in the cases which proceed from intake to Board of Inquiry.
Substantial evidence cited above dating back to 1990 clearly establish the prevalence of systemic discrimination in the provision of service at the Commission notwithstanding that such discrimination is prohibited in the Code. Despite the provision in section 28 (1) and (2) of the Code for a race relations division at the Commission, the Commission have not focused on remedying personal, systemic and institutionalized anti-black racism in employment. In fact less than two percent of race based complaints filed with the Commission proceed from intake to Board of Inquiry. I respectfully submits that without broad interpretation of the mandate of the Commission and the provisions of section 1, 9, 11, 28(1) and (2), 29(f), (g), and (h) and 47 of the Code and section 15 of the Charter, racism and discrimination can be maintained by the Commission’s exercise of its discretion to refuse to deal with cases of personal, systemic and institutionalized anti-black racism in unionized workplaces, rendering the importance of minority rights and equality in our society a mere illusion.
CONCLUSION
There is clear and convincing evidence the racial minorities are subjected to differential treatment at the Ontario Human Rights Commission. The evidence indicate that racial minority clients experience disparate treatment including, poor customer service, excessive delays, “white staff sometimes do not pay serious attention to race related complaints”, the Commission which is designed to remedy racial discrimination complaints is a “racially tension-filled workplace”, the “...relations between white and black staff in the regional office was torn by racial tension, mutual distrust and mutual suspicion”. As well, the preponderance of documentary evidence indicates that the Commission and its staff prefer not to deal with race based cases particularly those involving allegations of anti-black racism. The documentary evidence revealed that the Commission continuously refused to deal with complaints personal, systemic and institutionalized racism from racialized unionized employees while on the other hand processing complaints of unionized employees to Boards of inquiry when those complaints are based on sexual orientation, handicap, and/or creed.
Complainants whose cases of systemic racism in the workplace are not pursued by the Commission must begin filing complaints against the Commission for promoting racism in Ontario by its failure to effectively exercise its remedial, investigatory and prosecutorial mandate under the Code to remdy racial discrimination and harassment in the workplace. This can be done by filing complaints against the Commission under sections 1, 9, and 11 of the Code and section 15 of the Charter.
In such instances where complaints are filed the Trustee of Investigation at the Canadian Human Rights Commission, Rod Grainger, appoints an outside investigator to investigate the merits of the complaint against the Commission and makes a recommendation under section 36 of the Code.
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This page was updated on September 20/99.
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