Commentary

An Important Anniversary for Human Rights in Ontario

The approach of the anniversary of the Ontario Human Rights Code presents opportunities to better understand fundamental rights and responsibilities.

By Jonathan Lambert
Published May 22, 2018

June 15 is the anniversary of the Ontario Human Rights Code. This quasi-constitutional, provincial law prohibits discrimination in social areas such as employment, housing, contracts, membership in vocational associations, and goods, services, and facilities.

First taking effect in 1962, the Code was the first of its kind in Canada. Described by historians such as Dominique Clément, this law was premised on the understanding that prejudice can be unspoken and systemic.

Discrimination and harassment because of race, ethnicity, ancestry, place of origin, colour, citizenship, creed including religion, age, marital status, family status, or sex are strictly prohibited by the Code.

While the principles of the Preamble of the Code have remained constant since 1962, additional grounds have been added. During the 1980s, disability and sexual orientation were added as protected grounds, and sexual harassment was more explicitly prohibited. Later, in 2012 gender identity and gender expression were included in the Code.

The Code also prohibits reprisal for raising a Human Rights complaint.

The Human Rights Tribunal of Ontario is an adjudicative body that hears complaints that the Code has been violated. In 2013-2014, 74 percent of applications to the Human Rights Tribunal were in the social area of employment, and 54 percent of applications claimed discrimination due to disability, according to legal scholars such as Irv Ash.

The Human Rights Tribunal can order monetary amounts to be paid to people who experience discrimination. For example, OPT v Presteve Foods Ltd. (2015) is a case of two temporary foreign workers from Mexico. These sisters worked at a fish processing plant in Ontario and alleged that their employer, inside and outside the workplace, subjected them to sexual assaults and touching, unwanted sexual solicitations, a poisoned work environment, and reprisal. The Tribunal ordered $50,000 for one of the workers, and $150,000 for the other, as compensation for injury to dignity, feelings, and self-respect.

In another case known as Emra v Impression Bridal Inc.* (2014), the Tribunal heard allegations that a manager had been terminated after a brief, two-day disability-related absence. It ordered the employer to pay $25,000 as financial compensation for discrimination and $33,000 for lost wages.

A more recent case is AB v Joe Singer Shoes Ltd. (2018), in which the Tribunal awarded $200,000 to the applicant. She was an employee and tenant of the respondent for over 18 years. She brought her case to the Tribunal on the basis that the employer had sexually assaulted and harassed her, and also demeaned her for her physical appearance, language skills, and place of origin.

The Code also enables the Human Rights Tribunal to order non-monetary restitution, such as a public apology or reinstatement of employment, or order specific performance, such as participation in Human Rights Training.

The Human Rights Tribunal uses a two-part test when considering allegations of discrimination. First, as described in Moore v British Columbia (2012), applicants need to demonstrate that it appears to be true that they were discriminated against. Applicants need to demonstrate the following:

  1. they have a characteristic protected from discrimination,
  2. they suffered adverse impact in one of the social areas protected by the Code, and
  3. the protected characteristic was a factor leading to this adverse impact.

This discrimination, furthermore, need not be intentional.

Second, in the case that this first step is satisfied, the respondent then has the burden to sufficiently explain how the discriminatory conduct was justified.

The Human Rights Tribunal is designed to be remedial, not punitive. This means that Tribunal remedies are not meant to punish parties in a dispute. Giguere v Popeye Restaurant (2008) held that: "Public interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and ensure future compliance, are achieved in the particular circumstances."

Lee v Kawartha Pine Ridge District School Board (2012) described how the objective of the Tribunal's power to order remedies is to put applicants in the position they would have been in but for the discrimination. This is called "make whole" remedial power.

The Human Rights Tribunal requires that its forms are used. An application at the Human Rights Tribunal begins when a person alleging discrimination files a Form 1, which can be found online.

If you have been discriminated against contrary to the Human Rights Code, or if you are a business that has a complaint about discrimination, it is suggested that you immediately contact a lawyer or paralegal who has Human Rights Law as their area of practice.

Jonathan Lambert is a returnee to Hamilton, Ontario. In between studies at the University of Toronto and stellar pick-up soccer, he enjoys taking in Monday night Hamilton Red Wing home games.

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By KevinLove (registered) | Posted May 23, 2018 at 18:21:47

First taking effect in 1962, the Code was the first of its kind in Canada.

No, it was not.

Saskatchewan's Bill of Rights received Royal Assent on April 1, 1947.

At the federal level, the Canadian Bill of Rights received Royal Assent on August 10, 1960.

Please note that the links are to the official website of the Canadian Human Rights Commission, and took about 15 seconds to find in Google.

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By JL (registered) | Posted May 23, 2018 at 22:34:47 in reply to Comment 122950

Thank you for sharing thoughts about the Ontario Human Rights Code. I agree that legislation such as Saskatchewan's Bill of Rights (1947) and the Canadian Bill of Rights (1960) were important developments in legislation in Canada, and I agree that the article could have done a lot more in describing the history of human rights legislation and the human rights movement, but I also agree with scholars such as Dr. Dominique Clément, Will Silver, and Dr. Daniel Trottier that the Ontario Human Rights Code (1962) was “a landmark achievement”.

In their words, “First, it [the Code] contained an effective enforcement mechanism, with full time human rights investigators, a process for conciliation, and formal inquires with the power to enforce settlements. Second, it contained a mandate for human rights education and promotion. Third, the legislation provided for constructive remedies: offenders might pay a fine, offer an apology, reinstate an employee, or agree to a negotiated settlement” (2012, p. 16-17).

For example, section 12(1) of the 1962 version of the Ontario Human Rights Code gave the Ontario Human Rights Commission authority to inquire into the complaint of any person claiming to have been discriminated against contrary to the Code and to endeavour to effect a settlement of the matter, and section 8(c) gave the Commission power to “develop and conduct educational programmes designed to eliminate discriminatory practices”. As far as I can see, these elements are completely absent from the Saskatchewan Bill of Rights and the Canadian Bill of Rights.

There’s certainly sufficient reason to say that the Ontario Human Rights Code was a “first of its kind”, but what is more important is that discrimination is stopped, remedied, and eliminated.

Comment edited by JL on 2018-05-23 22:44:54

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By KevinLove (registered) | Posted May 24, 2018 at 01:30:22 in reply to Comment 122953

There are very, very good reasons why the Saskatchewan and Canadian bills of rights are enforced by the courts, and not by a bureaucratic human rights commission. It was believed that the courts could be trusted to refrain from the exercise of arbitrary power far more than a bureaucratic commission.

In particular, there was a grave concern that such a bureaucratic commission would fail to respect the rights of the people to freedom of association, freedom of speech and freedom of religion. It was believed that the courts would do a much better job of balancing the goal of reducing discrimination with respecting the rights of freedom of association, speech and religion.

There are also very, very good reasons why mandatory re-education was not sanctioned by these pieces of legislation. This was seen as a tyrannical exercise of power by thought police to attempt to control people's beliefs.

Fortunately, this concern has not become reality. Instead, let me describe what happened when one of my former employers undertook this re-education for all of its employees. Everyone signed in at the beginning of the session. Then they worked on their email and other work-related activities while studiously ignoring the re-education that was being presented up front. So instead of being a tyrannical exercise of power by thought police to control people's beliefs, it was an exercise in passive resistance.

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By mikeonthemountain (registered) | Posted May 24, 2018 at 10:24:05 in reply to Comment 122954

You describe my response to the various C-Bills that starting to infect the workplace with social reeducation that has nothing to do with my job. I view them with contempt and make sure they are forgotten within minutes of telling the multiple choice test what it wants to hear.

As for social justice tribunals - I'm fine with arbitration as a method of attempting a resolution before a disagreement burdens the court system, but extrajudicial tribunals are not okay, indoctrination in the workplace is not okay, and these are among the reasons Liberals and NDP are hemorrhaging their own members. If political correctness turns totalitarian it will destabilize the society. It won't succeed in its goals to make everyone play nice, it will intensify polarization and echo chambers.

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