HRTO CONSULTATION SUBMISSIONS FROM THEEMPLOYMENT LAWYERS ASSOCIATION OF ONTARIO (ELAO)

Date: November 8, 2024

Submitted to: The Human Rights Tribunal of Ontario (HRTO)

Submitted by: Employment Lawyers Association of Ontario (ELAO)

About the submitter – The ELAO

The Employment Lawyers Association of Ontario (ELAO) is a membership-based organization located in Ontario focusing on Employment and Labour Lawyers. The organization contains both Plaintiff side and Defendant side counsel in approximately equal measure as well as neutrals. The ELAO has a membership of 500 active Employment lawyers who make up a strong majority of active lawyers who primarily practice Employment Law. Our members frequently practice in the area of Human Rights, including before the HRTO representing both claimants and respondents, on both employment and non-employment matters.

Overview

The ELAO wishes to make very select suggestions. We wish to make our suggestions narrow to include suggestions on mediation that are both important should be non-contentious.

Mandatory Mediation has been highly successful in Ontario. The Ontario Bar Association (which the ELAO is not affiliated with but has a membership overlap with the ELAO) previously put together a very strong background on mandatory mediation.1

The ELAO endorses the OBA submissions relating to the utility of mandatory mediation and repeats them.

Having mediation be mandatory at the HRTO is an unquestionably good thing. Briefly this is because of the following non-exclusive reasons:

• Mediation allows the parties to efficiently resolve their own issues as they see appropriate respecting autonomy and self-actualization;

• Mediations if organized correctly can be highly effective at reaching mutually satisfactory resolutions;

• Mediations allow complainants to feel like they ‘have their day in court’ even if it is not a formal court setting;

• Mediations decrease administrative burdens on administrative tribunals and courts by having parties reach resolutions earlier;

• Mediations cut down on legal fees for represented persons when they are paid hourly, including on Defendant stakeholders;

• Mediations do not require parties to negotiate at all, parties still have full autonomy to attend a mediation and walk out immediately;

• Given that parties can choose to attend a mediation and walk out immediately if they choose to do so any cost involved in the mediation is entirely voluntary and therefore mediations do not include any additional non-voluntary cost to the parties;

• Mediations are effective at prompting discussion, in practice the percentage of parties who walk out without negotiating is very close to 0%;

• Virtually all concerns about mediations being unfair to ‘weaker parties’ are resolved by removing any requirement for a plenary session, which have been strongly moved away from in Employment and Labour mediations in recent years;

The rest of these submissions will focus on the logistics of mediation. Namely we make three strong and important suggestions:

• Suggestion 1: Parties must be able to choose their own mediators if they wish;

• Suggestion 2: Plenary sessions should not be mandatory in mediations;

• Suggestion 3: Nomenclature: “Automatic Mediation” or similar is significantly better nomenclature than “Mandatory Mediation”

Suggestion 1: Parties must be able to choose their own mediators if they wish;

Members of the ELAO have extensive experience with mandatory mediation in civil litigation as practitioners before the Superior Court in Toronto, Ottawa and Essex County (Windsor) as well as before the HRTO where mediations are common, although currently ‘opt-in’.

Mediation systems can be created on a spectrum of efficiencies which depending on how they are created can be better or worse at achieving the goals and benefits of mediation.

One major success at the Superior Court level for mandatory mediation is allowing the parties autonomy to choose their own mediator and having that private mediation count as a mediation for the purposes of the mandatory mediation provisions. ELAO members report that at present with the HRTO parties often choose to opt out of HRTO mediations and instead hire private mediators. Eliminating this option would be very unfortunate and would in fact likely decrease rather than increase the benefits of mediation at the HRTO.

Allowing parties to opt into private mediation has a number of strong advantages, these include:

• Parties choosing to have private mediations also removes cost and administrative burden from the HRTO;

• HRTO Vice Chairs, Chairs, and Members are term-limited. Allowing parties to hire retired officials after their term ends allows the ‘market to solve’ and to have a voluntary involvement for officials who have excelled at mediations after their term expires;

• There are notable retired HRTO officers such as Andrew Diamond and Sheri Price who have transitioned efficiently to be private mediators in HRTO matters;

• Choosing a private mediator is voluntary, and if not agreed to by both parties will default back to HRTO officials, therefore any additional cost is consented to;

• The parties are able to choose for themselves the relative advantages of provided vs. private mediators thus enabling party autonomy and decision-making;

• Parties are able to hire specific mediators with specific past experience and with whom they have relationships which are conducive to settling;

• Parties are able to choose to hire private mediators who may be more facilitative or evaluative to their own liking vs. randomly assigned mediators;

• There is a market incentive for private mediators to ‘push both sides for settlement’ since they need to ‘fight’ for repeat customers in the way that HRTO officers may not have to, which can result in higher settlements and better outcomes because in the private sector there is more of an incentive to be ‘liked’ as a mediator.

• By having private mediation as an option, although one that is more expensive, this will also incentivize HRTO officials to partake in some of the ‘best practices’ of private mediation, which increases the quality of all mediations;

• While most private mediations will be done by represented parties it is also an option for unrepresented parties.

• The administrative burden on the HRTO for having private mediators is effectively zero since the parties would be paying for the private mediator.

Because having HRTO officials conduct the mediations as a backup if the parties cannot agree to a private mediation there is no disadvantage to allowing private mediators to carry some of the large burden of conducting mediations.

At present the system is effectively one that allows for private mediations because the parties can choose not to opt into the HRTO mediation process but instead do a private mediation. Should that be eliminated it may well discourage resolutions because parties will ‘have to do the HRTO mediation anyway’. This will create an even larger burden on the HRTO and its HRTO officials.

Therefore, the ELAO strongly suggests that the status quo continue to exist by allowing parties to choose their own private mediators if they wish to do so. The ELAO suggests that this could be easily done by allowing in the Rules for the parties to opt into a private mediation so long as the mediator who conducts that mediation files a certain form, similar to the Ontario Mandatory Mediation procedure form2.

There should be no concern about the ‘quality’ of mediators due to the principle of party autonomy. Should parties wish to they are, for instance, entitled to take their HRTO matter to arbitration instead of the HRTO under the Arbitration Act3. Given that the legislature has decided that parties are able to arrange for private dispute resolution there is no legitimate reason for an administrative tribunal such as the HRTO to be concerned that parties may use their autonomy in a way that is contrary to their own interests. There are no reported instances at the Superior Court level of abuse by any parties of the mandatory mediation private mediators.

The ELAO is highly concerned that without allowing for parties to hire their own private mediators that this change will be a ‘lose-lose-lose’ vs. the current system. It will remove an option currently present and replace it with something that is not guaranteed to be better. It also has no advantage for the HRTO since it will be a larger administrative burden on the HRTO. This is why the ELAO wishes to most strongly recommend continuing to allow parties to choose their own private mediators where both parties consent to do so.

Suggestion 2: Plenary sessions should not be mandatory in mediations;

In recent years plenary sessions have become much less common in Employment and Labour Law mediations. This is very different from other areas of law such as Personal Injury or Long Term Disability Law.

Parties on both sides have found that plenary sessions can often drive parties further apart and in ‘emotionally charged’ mediations such as cases involving Human Rights they are frequently unhelpful. Counsel often feel compelled to talk about how strong their case is, which then solidifies feelings and can make it harder to settle.

One of the critiques of mediation is that ‘more powerful’ parties can also exercise power over weaker ones, or that victims of a wrong will have to be in the same room as their attackers/harassers. Ensuring that there is no required plenary entirely eliminates these critiques to the extent possible in any litigation. While it is impossible to eliminate the advantages of any side that has a power imbalance starting in caucus means that there is no additional power imbalance created by having a mediation over any other type of negotiation.

Although of course it should be up to the parties and the mediators involved, there should be no required presumption that there be a plenary session.

Suggestion 3: Nomenclature: “Automatic Mediation” or similar is significantly better nomenclature than “Mandatory Mediation”

Although the “Mandatory Mediation” program in the Ontario Superior Court has been wildly successful one issue is that the name is likely not one that has been conducive to uptake. The rollout of this program to the HRTO can learn from this.

The problem with calling it “Mandatory Mediation” is that in our experience there is a lot of opposition to programs that sound like they are reducing party autonomy. People object and say that ‘it won’t work if it isn’t voluntary’ and other objections. These objections are, in our experience, not borne out in reality, but they are psychological objections which create opposition. This can also cause an issue for self-represented persons who are less likely to understand the nomenclature involved.

We understand that in the United Kingdom they have had better success, building on Ontario’s mandatory mediation model with the wording of “automatic mediation” or “automatic referral to mediation”4

No other rules are called ‘mandatory’ even though all rules are equally ‘mandatory’. There appears to be some stigma relating to calling things ‘mandatory’ to some lawyers who are less familiar with the system, and some self-represented persons.

For instance, in Superior Court Litigation, we have ‘discovery’, not ‘mandatory discovery’. Pretrials are not called ‘mandatory pre-trials’ although they are procedurally mandatory. This suggestion is purely for nomenclature purposes and is not about the actual procedure of the mediation being followed. That being said it is an important naming difference which can avoid significant backlash with a simple wording change that better reflects the program and does not highlight any ‘forced’ aspects of the mediation process.

The ELAO would suggest that the following terms might be better for having mediation be a required step (mandatory mediation),:

• Automatic Mediation;

• Automatic referral to mediation;

• Mediation/Conciliation;

• Mediation;

It may seem to be a small point, but the ELAO lawyers have found that the term ‘mandatory mediation’ often creates opposition, and this can be avoided with what could be a very simple wording change.

If parties go into mediations believing that they will not be successful because they are being ‘forced’ to do a ‘mandatory’ mediation then settlement ratios will be less and that will take more administrative time from the HRTO. A simple wording change can likely alleviate these concerns and also better reflects the reality of the referral to mediation than labelling it ‘mandatory’ which comes with an insinuation of ‘forced’.

Conclusion:

In conclusion the ELAO asks on behalf of our members that you strongly consider the above three points while shaping your mediation changes. It benefits all members of the bar, and public, to not just expand access to justice by way of greater mediations at the HRTO but to have them rolled out in an optimal way. By including just these three points we can make sure that the changes result in an improvement, rather than a decrease, in efficiency of mediation at the HRTO.

Sincerely:

Andrew Monkhouse for the ELAO

Andrew Monkhouse – President – ELAO

Tahir Khorasanee – Vice President – ELAO

Approved by the ELAO committee on HRTO amended procedures on November 7, 2024