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Website message signals serious access to justice problem | Rachel Goldenberg

Wednesday, January 02, 2019 @ 11:19 AM | By Rachel Goldenberg


Rachel Goldenberg %>
Rachel Goldenberg
The Human Rights Tribunal of Ontario (HRTO) has recently posted a notice on its website advising that it is undergoing challenges which are affecting the HRTO’s ability to “meet its service standards.” Despite the HRTO’s mandate to provide timely resolution services, mediations and hearings are being booked months in advance, and mediations and hearings that were scheduled months ago are now being rescheduled to a later date.

This notice is a reminder that access to justice is hard to find in our justice system. Many individuals facing serious fundamental breaches of their human rights are no longer able to pursue remedies because they simply cannot afford to any longer.

Few people can set aside the time required to pursue remedies. And those that can pursue remedies do not want to wait months or even years before a final resolution of their matters. They do not want to spend months in the negative headspace of reliving the issues that led them to the HRTO in the first. The resource limitation is causing a further chilling effect on an already cool process.

The Ontario Superior Court of Justice has faced similar resource limitations over the last decade. As a result, it has implemented various new procedures and processes to encourage settlements, limit motions and promote early resolution of disputes.

For example, the mandatory mediation program in Toronto, Ottawa and Windsor forces parties to consider settlement much earlier on in the process than would be the case otherwise, if at all. The requirement for counsel seeking to schedule long motions to attend motion scheduling court enables a judge to determine how and when a motion will be heard and what resources are necessary for the motion.

Changes to summary judgment rules have enabled more cases to be disposed of by way of summary judgment, instead of requiring a long trial. Additionally, the recent change to automatic dismissal of court actions for reasons of delay, without notice, has removed idle cases that have taken up court time and resources.

While all of these methods have undoubtedly helped the Ontario court system, there remains serious issues of delay and limited resources. Perhaps the best way of resolving the resource shortage is to take a step back and consider why the judicial system is being overwhelmed by cases in the first place. Are we as a society too litigious? Why are there still, in this day and age, so many human rights violations?

It is unquestionable that human rights violations continue to occur. To combat this, Ontario and many other jurisdictions are establishing and enforcing harassment and violence policies in employment legislation. Many jurisdictions are also establishing new leaves of absence from work for domestic or sexual violence. In the wake of the #MeToo movement, it is clear that these violations of fundamental human rights are becoming more and more apparent, not less so.

While it may be undesirable to do so, one might also question the legitimacy of all of the claims. Yes, many of the individuals filing applications with the HRTO have experienced some form of discrimination or harassment. However, to what extent are people filing unsubstantiated claims? Such claims could be motivated by malevolence, to defame a party’s name, or they could be filed as a means of pressuring a party to take certain action or inaction. Either way, in doing so, they are forcing the HRTO to expend time and resources on unnecessary cases and taking time away from legitimate claims of discrimination or harassment.

The HRTO is now admitting in its notice that is it having trouble meeting its service standards, one of the fundamental mandates of the social justice tribunals. This is deeply troubling statement about our justice system. While the notice affirms the tribunal’s statement that it is committed to providing fair, effective and timely dispute resolution, one might question how this is feasible, given the limited resources it has at its disposal.

Just recently, Ontario Superior Court Justice Peter Daley invited the public to a courtroom in Brampton and candidly spoke about the long-standing shortage of courtrooms and resources in the justice system and its harmful impact on the public. Justice Daley is hoping that his actions will spark a political change to increase resources in the court system. Perhaps this will work, in lighting a fire toward change. Perhaps we will see more judges speak out against the system. Perhaps we will see HRTO adjudicators speak out against the system, now that the human rights system is facing similar obstacles to access to justice. Perhaps not.

One thing is clear: Something has got to change. But who or what is going to do it? A huge crisis that can be attributed to the lethargic system? Something that’s going to make people stand up and say, “things must change!”? Even if we are able to incite the public to rally for change, what we need is political change, a strong leader with a clear intention to initiate and effect change in the judicial system. That is the first step toward bringing justice back to our justice system.

Rachel Goldenberg is a content lawyer at LexisNexis Canada.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer's Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.