She was sexually assaulted at work. It took 6 years for a human rights tribunal to schedule a hearing
Fewer cases are being heard orally by Ontario tribunal, data shows
Patricia Sayers was always thinking about the women she left behind.
She quit her job after being sexually assaulted and harassed by a co-worker at a retail store in Uxbridge, Ont.
"I immediately thought I had to stop him from harming someone else," she said.
She filed a police report and submitted an application with the Human Rights Tribunal of Ontario (HRTO) in hopes of creating change at her former workplace.
The HRTO resolves claims of discrimination and harassment brought under the Human Rights Code.
Sayers filed her application in 2018 against the particular store location, the man who assaulted her and managers who she says mishandled her complaint.
There's no set timeframe for how long the entire process should take. But it was six years before the tribunal set a date for the final step.
A watchdog group says her case illustrates the problems plaguing the HRTO: a backlog and delays that are resulting in fewer cases making it to a final hearing, which has wider implications on human rights law.
Sayers says she chose the HRTO route because it can issue orders — known as "public interest remedies" — against the respondents, which are intended to have a wider impact by preventing a similar situation from happening again and providing education about human rights and discrimination.
She says she thought it was the quickest way to make things safer for the women she'd worked with. "That was not true at all," Sayers said.
The case dragged on for so long, the remedies Sayers was seeking became unattainable, she says, in part because the store was changing hands, two of the respondents no longer worked there and a third was set to retire.
"[The tribunal] negated those public interest remedies."
She withdrew the case, and reached a settlement outside the HRTO.
Unsafe at work
Sayers's co-worker began sexually harassing her one month into her employment and about a year later, he sexually assaulted her while they were alone in the lunchroom, according to her HRTO application.
"I went to management to report him and what had happened. And they basically did nothing," she told CBC Toronto.
Sayers says she felt unsafe at work, so she quit.
In February 2018, she filed her application with the HRTO with the help of a lawyer. The man was charged with sexual assault so the HRTO deferred the case while the criminal proceeding was ongoing, though Sayers's lawyer argued against the move.
He was convicted at the beginning of 2019 and Sayers's application was reactivated that May.
One year later, mediation was attempted but the parties were unable to resolve the issues, so the case was set for a merit hearing — the last step, when an adjudicator rules whether discrimination occurred and issues any orders.
Sayers says she was told her hearing would likely happen in about two years, due to backlogs.
In fact, it was eventually set for some three years later — in October 2023.
Further, she says the HRTO didn't input those October dates in the system. After several complaints, she had new dates set for the end of January.
She instead reached an outside settlement, which required her to withdraw the HRTO case.
Sayers received financial compensation and the store agreed to human rights training for employees and to posting anti-harassment policies and complaint procedures. This was a far cry from the HRTO remedies Sayers was seeking — such as ordering the respondents to complete sexual harassment and human rights training at their own expense, and that the store retain a human rights consultant to help make permanent changes.
"I wanted [the HRTO] to put this message to them that what they did was not OK," she said. "Also just to educate them that women have a right to go to work without being sexually harassed and assaulted."
Tribunals Ontario, which oversees the HRTO, says it doesn't comment on specific cases.
Spokesperson Veronica Spada said the HRTO is "continuing to examine its processes with the view to moving applications through the system in a more efficient and timely manner."
Missing data
The HRTO announced in 2022 it would strive to schedule hearings within six months from the date the application is ready to proceed — 70 per cent of the time.
Data on how often that was met isn't available in its last two annual reports because, the tribunal says, of a problem with its case management system.
The only recent figure is from the third quarter of this past fiscal year, when the goal was reached 31 per cent of the time.
Details about its backlog are only available for the last few years.
It grew by 500 cases between the 2021-22 and 2022-23 fiscal years while at the same time, fewer cases were filed.
But, at the end of the last fiscal year, it had 8,500 cases in its queue — the first year the HRTO reduced its total applications since 2013, according to Spada.
The number of merit decisions dropped by nearly 60 per cent in the last fiscal year compared to six years prior.
'Unprecedented' number of dismissals
Tribunal Watch Ontario, a non-profit watchdog group, is concerned that fewer HRTO cases are being heard orally and making it to a merit hearing, says Kathy Laird, a member of the group's steering committee.
She says that discourages people from filing applications.
"This tribunal has not been doing the work that we would expect," said Laird, who is also former counsel to the chair of the HRTO and former executive director of the Human Rights Legal Support Centre, a provincially funded agency providing legal assistance to HRTO applicants.
Laird says she's also concerned with the "unprecedented" number of cases — 1,344 of them in 2023-24 — that were dismissed for jurisdictional and procedural reasons and that didn't include oral submissions.
She claims the HRTO has narrowed its understanding of its own jurisdiction, allowing it to dismiss cases without the parties getting the opportunity to speak in front of the tribunal.
Spada says the HRTO may dismiss applications that are outside its jurisdiction following a hearing in writing, and that its process for addressing jurisdiction has been upheld by the Ontario Divisional Court.
Such dismissals can be made if an adjudicator determines the application is an abuse of process, was dealt with in another proceeding or if a summary hearing resulted in no reasonable prospect of success.
They also include abandoned cases, which were three times more prevalent, hitting 1,073, in 2023-24 compared to six years ago.
Laird says delays can result in applicants abandoning cases, especially if they're asked to submit documents after years of waiting.
"You can wear people out," she said.
Toronto lawyer Tanya Walker, who typically represents respondents in HRTO hearings, says she's seeing the backlog improve. But when cases drag, witnesses can become unavailable, memories aren't as fresh and obtaining access to some evidence can be challenging.
"It doesn't serve any good for anyone if a matter just settles or is dismissed because of delay. It's not fair, it's not justice," she said.
Walker says she'd like to see increased funding for public assistance so applicants are more educated about the tribunal, its scope and process, given that around 80 per cent of HRTO applicants are unrepresented, according to Tribunals Ontario data.
Laird would like to see a dedicated panel of expert adjudicators set up to work through backlog cases and review how the tribunal is interpreting its jurisdiction.
Sayers's identity was protected under a publication ban because she is a victim of sexual assault in criminal proceedings.
But she got it lifted in order to share her story in hopes of creating change so younger generations of women are safe.
"I think that our society at large doesn't take violence against women seriously enough. And I want that to change," she said.
ABOUT THE AUTHOR
With files from Nicole Brockbank and Julia Israel