Direct Access in Ontario: A Call to Re-Examine Adjudicating Human Rights in the Workplace: After Ontario's Pinto Report, Where Do We Go Next

Amendments to the Ontario Human Rights Code that took effect in 2008 introduced a new hybrid direct access model, which allows complaints to be taken directly to the Human Rights Tribunal of Ontario without prior investigation by the province's Human Rights Commission, and which limits the Commission's role to the protection of the public interest through policy development and public education. The authors are of the view that there was inadequate cost-benefit analysis of the new model before it was implemented, and that the three-year period between the implementation of the new model and the preparation of the Pinto Report on its operation was not long enough to allow for a thorough analysis of how well the model was working. They argue that cost-benefit analysis is still needed to assess whether the model is meeting its policy goals and whether it is cost-effective and efficient. However, they acknowledge that one of the challenges in performing an analysis of a human rights regime lies in the dificulty of quantifying the regime's costs and benefits; it is hard, for example, to place a value on fictors such as access to justice. With an eye to the differences between the new Ontario model and the human rights regimes in other Canadian jurisdictions, the authors highlight a number of potential problems with the hybrid Ontario model that call for future research using a cost-benefit approach: the lack of Commission-initiated public interest cases; the risk that more non-meritorious cases will reach adjudication because of the lack of screening by the Commission; the shifting of the costs and other burdens of litigation to private parties; and the question of the effectiveness of the Legal Support Centre in helping to meet those burdens.