Fall 2008 Introduction to the Ontario Human Rights Code

Fall 2008

Introduction to the Ontario Human Rights Code

Ontario Human Rights CommissionCommission ontarienne des droits de la personne

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PREAMBLE

The preamble is the most important element of the Ontario Human Rights Code.

- Identifies international obligations - Establishes that human rights protections

are public policy - Recognizes the dignity and worth of every person


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The Preamble states:

WHEREAS recognition of the inherent dignity and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations.


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…

AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to the law,


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…

and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a party of the community and able to contribute fully to the development and well-being of the community and the Province;


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Parts I and II of the Code

Part I Freedom from Discrimination

Sections 1 – 9 social areas, grounds of discrimination

Part II Interpretation and Application

section 10 – definitionssections 14 – 24 – exceptions to the Code


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Prima Facie Complaint

Social Area + Ground (s)

ComplaintComplaint


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Social Areas

Section 1: Services Section 2: Accommodation Section 3: Contracts Section 4: Accommodation of persons under

18 Section 5: Employment Section 6: Vocational Associations


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Right to equal treatment without discrimination

Every person has a right to equal treatment with respect to services, goods and facilities, accommodation, contracts, employment and vocational associations without discrimination because of … (grounds)


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1. Services, goods, facilities

shops theatres restaurants taverns gas stations education/training programs in schools

universities etc. hospitals insurance companies


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2. Accommodation

rental and commercial accommodation– granting of accommodation– amount of rent– security deposits– rules and regulations– termination of a lease – eviction


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3. Contracts

oral or written contract– includes the making / acceptance or rejection

of an offer– independent contractors / sub-contractors

contract for purchase of a house or condominium etc.

contract for purchase of commercial accommodation, office/retail space

contract of insurance etc.


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4. Accommodation of persons under 18

Section 4(1)

Is a sixteen or seventeen year old person Is no longer under parental control


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5. Employment

covers all aspects related to employment including:

– recruitment, interviews, application forms– hiring, training– transfers, promotion– apprenticeship terms– dismissals – layoffs– government contracts


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6. Membership in Vocational Associations

trade unions self-governing professions employers’ organizations management organizations


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Do these fall under a “social area”?

Restaurant, library or community centre

Walking down the street

A promotionThe union won’t send

you on assignments because he thinks your English is poor

Services, goods and facilities

No Employment Vocational

Association


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Grounds of Discrimination Services / Accommodation / Employment*

- race

- ancestry

- place of origin

- colour

- ethnic origin

- citizenship

- creed

- sex (pregnancy)

- sexual orientation

- age (18 & over in employment)

- marital status

- family status

- disability

- reprisal


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Grounds of Discrimination specific grounds

- GROUNDS

receipt of public

age (18 to 65)

record of offences

SOCIAL AREA

Accommodation only

Employment only

Employment only


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Introduction to the Ontario Human Rights Code

Part II Definitions

- section 10 -


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“Age”

Is defined to mean 18 years or more except: in employment (18 - 65); contracts for accommodation (aged 16 and have

withdrawn from parental control s. 4(2))

Includes:

(i) Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury , birth defect or illness.

(ii) a condition of mental retardation or impairment


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“Because of Disability”

(iii) a learning disability, or a dysfunction in one or more processes involved in understanding or using symbols or spoken language;

(iv) a mental disorder;

(v) an injury or disability for which benefits were claimed under the Workers’ Compensation Act


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Ability to perform essential duties and requirements: right to non-discrimination not infringed if

person is incapable of fulfilling the essential duties or requirements of the position (s. 17 (1))

essential duties are duties that are necessary for the use of services, accommodation,or the performance of a job


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Accommodation short of undue hardship: the employer, landlord, service provider must

accommodate this person’s needs, short of undue hardship, considering the cost, any outside sources of funding and health and safety requirements

See the Policy and Guidelines on Disability and the Duty to Accommodate


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“Harassment” means…

… engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.


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“Harassment”

.. a course of .. : usually more than one incident

… vexatious comment ...: what is said

… or conduct ...: actions (e.g. touching), gestures (e.g. leering), posting of materials, graffiti etc.


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“Harassment” is specifically covered …

In accommodation: landlords, people acting for landlords (s. 2(2))

in employment: employers, people acting for employers, co-workers (s.5(2))


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Harassment because of Sex

Section 7(1): Harassment because of sex in

accommodation

Section 7(2): Harassment because of sex in

Workplaces

Section 7(3): Sexual solicitation by a perso

in position to confer benefit, etc.


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Marital Status

married single widowed divorced separated living with a person of the opposite sex in a

conjugal relationship outside of marriage


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Record of Offences

employment only

person who has been convicted of an offence under an Ontario statute, or

who has been convicted of a federal offence for which a pardon has been granted


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Spouse

Code definition: the person to whom a person of the opposite sex is married or with whom the person is living in a conjugal relationship outside marriage

Dwyer and Simms; Leshner: “same-sex”


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Exceptions

Section 14: Special Programs

Section 16: (Canadian citizenship)

Section 18: a religious philanthropic, education,

fraternal or social organizations such a seniors

club, serves the special interests of persons

Section 21: Shared accommodation

Section 22: Insurance contracts

Section 24: Special employment


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Complaints

Include the Social Area Include the ground (s) Include ALL the relevant Code provisions

(I.e. sections of the Code) AND section 9 Is harassment involved? Is there reprisal?


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Specific Provisions of the Code

Infringement prohibited

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.


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Types of discrimination

Direct Indirect Constructive (s. 11) Systemic Because of (s. 12)

association Reprisal (s. 9)

Announced intent s. 13 Perception Harassment Poisoned environment


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Are these prima facie complaints?

The apartment manager won’t rent to a pregnant woman

The factory manager fires you because he doesn’t like your accent

The Chief Engineer who is from China won’t hire engineers from Taiwan

Accommodation / sex, family status

Employment / language – country of origin, ethnic origin

Employment / place of origin, ancestry

Documents

Fall 2008 Introduction to the Ontario Human Rights Code