More and more, victims of sexual harassment and sexual assault are seeking justice through Ontario's Human Rights Tribunal system as an alternative to the formal court system. The tribunal is a quasi-judicial body that resolves claims of discrimination and harassment based on grounds such as gender.
There are a few reasons why victims might choose to go the tribunal route.
The Human Rights Tribunal is far easier to navigate than the traditional court system. There are fewer rules, and claims often get heard within one year. This is significantly shorter compared with the court system, where cases can take on average two to three years to see the inside of a courtroom.
Criminal courts do not award monetary compensation for victims. Instead, the state prosecutes the perpetrator on behalf of the victim. If a conviction is achieved, the state doles out a punishment. However, the victim is left with no assistance to help with the immense pain, life disruption and suffering that comes with being a victim of an atrocious crime.
Tribunals, on the other hand, have a great deal of power and can award large damages. While the norm used to be $25,000 to $40,000 damage awards, much larger tribunal awards are becoming common. The high water mark for an Ontario Human Rights Tribunal award for sexual assault and harassment is around $200,000.
Attempting to seek justice through the criminal court system can also be a gruelling, intimidating and de-humanizing process for individuals who have been traumatized by sexual abuse. The recent high-profile trial of Jian Ghomeshi highlighted the difficulties of being a victim in the criminal court system. A victim's credibility goes on trial, their private lives go under a microscope and they re-live the trauma each day in the courtroom.
Tribunals don't need to comply with the rules of evidence as in the formal court system.
But the tribunal system also has much room for improvement.
One of the pillars of the court system in Canada is that it is public and transparent. Anyone can attend trials to watch proceedings, and documents filed in court proceedings are almost always accessible to the public.
This transparency and openness does not exist in the tribunal system. Documents and records are typically not readily accessible by the public, which is something the Toronto Star recently took issue with.
Recently, the Star launched a constitutional challenge against the province over the restrictive access to tribunal documents. In many cases, the tribunals require people to file "freedom of information" requests to access tribunal documents. The court agreed with the Star that tribunals needed to implement changes to be more open and accessible.
Additionally, tribunals don't need to comply with the rules of evidence as in the formal court system. The evidentiary standards and burden of proof are more relaxed, and the tribunals don't have the same level of public scrutiny that the courts are subjected to.
The tribunal system was initially set up with the idea that people could use it as an alternative to the court system to achieve faster, less expensive and easier resolutions. However, these days important cases are litigated in the tribunals, especially with respect to sexual abuse and harassment.
Changes need to be made to make tribunals more open, transparent and rigorous in order to maintain the integrity of the system.
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