Ontario Human Rights Tribunal Facing Increased Delays

Written on behalf of Peter McSherry

Workers facing discrimination or harassment at work have long had the remedy of bringing a complaint before the Human Rights Tribunal of Ontario (HRTO). When an employer fails to adequately accommodate a protected issue, such as a disability, or if the employer engages in discriminatory practices based on age, race, gender or similar issues, the Human Rights Code has been available to protect employee rights. As the government body responsible for carrying out the principles set out in the Code, the HRTO is often an employee’s best chance at resolving a complaint related to a violation of their human rights.

According to a recent article by the CBC, a number of changes have been made to the tribunal in the last two years that, combined with COVID-19 restrictions, have caused mounting delays for those looking for resolution. According to the article, the HRTO had over 60 full-time and part-time adjudicators in early 2018. At the time the article was published, there were only 30 active adjudicators listed, with just 4 postings for available positions.

Reduced Interest for Potential Adjudicators due to Tenure Changes

Some blame changes to the HRTO put into place in mid-2018 by the current provincial government’s administration. Under previous governments, adjudicators were appointed for a two-year term with the chance to be renewed for 3 or 5 years, if their performance merited it. In 2018, the current administration announced it would not be renewing most, if not all, of the existing appointees, and also declined to promise renewals to those who met the standards typically reviewed prior to reappointment. This loss in job security had a chilling effect on those interested in adjudicating for the HRTO, according to a retired administrative lawyer named Ron Ellis:

By eliminating any sense of security of tenure for the tribunal’s adjudicators, it destroys both the fact and the appearance of tribunal independence, thus putting the tribunal in breach of the law’s requirement that it and its adjudicators be, and be seen to be, independent and impartial.

In addition to the tenure changes, two recent appointees appear to have been appointed without going through the standard vetting and competition process. This has led one group called Democracy Watch to initiate a legal action to challenge the appointments.

Slow to Adapt to Remote Technology

Adding to the delays has obviously been the COVID-19 pandemic, which forced the closure of several courts and tribunals across the country. While some responded quickly by moving to an online resolution process, the HRTO instead canceled many scheduled proceedings before adopting remote technology. Since then, some proceedings have occurred via teleconference or even in writing, but the backlog has continued to grow nonetheless.

Delays Have Real-Life Consequences for Those Seeking Help

One person who has been affected by the delays both due to the shortage of adjudicators and the COVID-19 interruption is a Toronto college professor named Jill Edmondson. She initiated an application against her employer, George Brown College, for discrimination she says occurred after she was diagnosed with cancer. Her action alleged discrimination due to disability, one of the enumerated grounds for discrimination under the Code.

Ms. Edmondson had a preliminary hearing that was not completed in December 2019 and then was unable to continue the matter until recently. She is worried there will be further delays because the adjudicator assigned to her matter has an appointment set to expire in 2021. Further, she is currently undergoing chemotherapy treatment and the stress of the delay has only added to her anxiety.

I had no idea when I filed the claim that HRTO was so incredibly backlogged and slow. Had I known then what I know now I would have probably taken a different course of action…Just worrying about my health is its own sort of full-time mental occupation but then having to deal with this…

Contact the offices of Guelph employment lawyer Peter McSherry for up-to-date advice on a variety of employment issues, including human rights remedies for workplace discrimination. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.