In November 2008, following public town hall meetings with individuals and groups across the province, the OHRC finalized strategic and business plans to guide its work under its new mandate for the following three years. Our aim is to educate, empower and mobilize partners in communities across the province to raise awareness, help identify concerns and implement solutions.
During this period, we set priorities including Aboriginal issues, race and hate crimes. Significant work was done on discrimination related to housing, family status, and disabilities, including mental health. Many issues are intersectional – they cover several grounds of the Code. We have also worked on systemic organizational change projects with police and with school boards.
We undertook the largest public consultation in our history, examining discrimination faced by people with mental health disabilities. Discrimination was reported in housing, employment, and services. We are currently analyzing census data and will soon be reporting on the state of human rights in Ontario for people with mental health disabilities.
We also continued our work on other disability issues, including commenting on draft standards and regulations arising from the Accessibility for Ontarians with Disabilities Act and reviewing legislation affecting people with developmental disabilities.
We continued to develop, update and publicize leading edge human rights policies to prevent discrimination in rental housing, pregnancy and breastfeeding, and sexual and gender-based harassment. We will soon release a new policy on reconciling competing rights and have begun revising our policy on creed and religious accommodation. These policies clarify the law and promote effective public interest remedies.
The OHRC’s work included public interest inquiries into harassment against Asian Canadian anglers; discriminatory housing ads; mental health (including inquiries on housing, employment and in the provision of services including healthcare); and discriminatory housing licensing/zoning bylaws in various municipalities in Ontario.
We delivered outreach, education and training (including e-learning – online training modules which introduce human rights concepts under the Code) based on our priorities, and have significant partnerships underway with the law enforcement and education sectors to identify discrimination and work to prevent it.
We also took targeted legal action to clarify the law and enforce compliance with the Ontario Human Rights Code. For example, we filed applications at the Human Rights Tribunal of Ontario against transit providers that failed to announce stops for riders with vision loss. We intervened in applications before the HRTO involving mental health, and at higher courts on issues involving family status, competing rights, creed and freedom of expression.
Through our priorities, and through our many activities, the OHRC is advancing human rights in workplaces, schools, homes and wherever human rights are threatened across Ontario.
The demand for action on human rights issues continues to grow. As we become more effective at building awareness of rights and obligations under the Code, we see an increasing number of requests for action – public interest inquiries, legal interventions, Commission-initiated applications to the HRTO, etc. Applications to the HRTO and requests for assistance to the Human Rights Legal Support Centre are also on the rise.
At the same time, some of our issues which began with a legal focus (such as our complaint regarding the Safe Schools provisions of the Education Act, or the Toronto Police Services Charter project) have moved to a policy advice and cooperation phase – larger projects to implement sectoral and organizational change.
To choose among all the possible priorities, we use transparent criteria that reflect our vision, mission and mandate. We make these criteria known to the public so that we can justify our priority-setting decisions to stakeholder communities, including the Government of Ontario. It is vital that we not appear to be arbitrary in our decisions about which issues we take on.
The advantages of a broad mandate in working toward societal change should be obvious. The key disadvantage is that the possibilities for work can outstrip resources. That is why partnerships and empowering others is essential – and mutually beneficial. In addition, keeping stakeholder communities informed is vital; we must show clearly how we set our priorities and we must communicate our successes.
Our priorities for work change over time – that is inevitable. An essential part of our success as a leadership organization is our ability to react quickly to current issues as they arise. This ‘fast response’ driver is at the core of our mandate’s emphasis on addressing tension & conflict: we must show that we can respond quickly and with a positive impact when unexpected challenges arise.
However, we must not be a purely reactive organization. Planned, strategic work (such as policy development, public education, outreach, communications and targeted legal action) may not always have immediate impact but is, over time, building a progressive human rights culture. We aim to find and preserve the balance between reactive and planned work.
There is a common thread to most of the examples given below – that thread is partnership. The OHRC is a relatively small organization – about 50 people. The only possible way we can make a genuine impact on the lives of more than 13 million Ontarians is by working with partners that help us expand our reach. More than ever, we are reaching out to communities, looking for input, listening to concerns, raising awareness and trying to find solutions.
We are trying to make best use of new technology – social media, online surveys, an improved website – while at the same time acknowledging that face to face meetings are often the best way to hear and to be heard.
Where we feel we have made great progress, since the change in our mandate, has been in balancing our approaches to issues, by having clear criteria for priorities and using policy, partnership and litigation as needed to fit the circumstance. In many cases, that has given us the opportunity to cooperatively “build in”, rather than impose, change.
There will always be cases that cannot be resolved except at law and we continue to go to tribunals or courts when our analysis suggests that is the most effective course.
But when change comes as part of a process of understanding and accepting why change needs to be made, we are finding organizations and communities are more willing to buy-in to that change – and to recommend it to others.
Here are more details.
Since 2008, the OHRC has been working with the Ministry of Education to build on the positive structural and policy changes reached in the “safe schools” settlement. This is reducing the disproportionate effect certain policies and practices had on racialized students and students with disabilities, among others. It also supports implementation of the Ministry’s Equity and Inclusive Education Strategy in all Ontario school boards.
There have been amendments in the Education Act, new Ministry policy guidance relating to school discipline and equity, anti-bulling guidelines and initiatives, anti-discrimination curriculum, and human rights training for Ministry and school board representatives. The government is proposing additional amendments to address bullying especially based on race, sexual orientation and gender identity. These important systemic changes will help prevent discrimination in our schools.
Education sessions have been held across the province, including the OHRC’s involvement with the Ministry of Education Safe Schools Symposium. The OHRC has been providing related support and training to the Ontario Education Services Corporation (OESC), le Centre ontarien de prévention des aggressions (COPA), safe school networks, the Regional Equity and Inclusive Education Networks, and directly to schools and school boards across the province.
In 2008, students from kindergarten to grade 8 learned how “racism hurts” and what they could do to combat it, thanks to a unique initiative. The “racism hurts” campaign, a joint effort by the OHRC and the Elementary Teachers’ Federation of Ontario (ETFO), includes a poster and curriculum materials to help teachers begin a discussion with students about human rights, discrimination and racism, and to get students to think about what they can do when they experience or observe racism in their school and in their community. Materials were distributed to more than 3,500 schools across Ontario. The award-winning poster was designed as a result of the OHRC teaming with students and faculty from Seneca College’s Graphic Design Program in a course called Design for Social Change. ETFO members volunteered to develop lesson plans.
The OHRC is currently developing an e-learning module for teachers and supporting the Ministry of Education to develop policy guidance relating to human rights and student discipline to help school boards and staff identify human rights concerns in board policies.
The OHRC will continue to train educators, monitor compliance with human rights settlements and work with the Ministry of Education to encourage the collection of human rights-based data in Ontario’s public schools in order to understand and address disadvantage and discrimination.
We are also intervening at the Supreme Court of Canada this March in British Columbia v. Moore, a case involving a student who alleged discrimination because he was not given appropriate accommodation in education for his severe dyslexia. We are intervening in this case to ensure that the area of “services” in human rights codes is given a broad interpretation and that persons who need accommodations to meet their needs do not have to show they were treated worse than others who needed accommodation to prove discrimination. Working to ensure students with disabilities are accommodated “to the point of undue hardship” will continue to be a major focus over the years ahead.
The OHRC is working with others in the province to ensure inclusive design and barrier removal so that people with disabilities can fully participate in society. This is a long process, so intermediate steps are required. For example, transit is a necessity for most. Following its success in the Lepofsky v. Toronto Transit Commission, and getting commitments from most other municipalities to call stops for riders with vision loss, in July 2009 the OHRC filed applications at the Human Rights Tribunal against Hamilton, Sudbury and Thunder Bay transit providers. The OHRC reached positive settlements on these complaints in 2011, but continues to monitor and speak out on transit accessibility.
We have commented on a full range of accessibility standards being developed by the Ontario Government under the Accessibility for Ontarians with Disabilities Act (AODA). A number of these have now become law under the Integrated Accessibility Standards Regulation. This Regulation sets out requirements for employment, information and communication, and transit that will help to prevent many new barriers. For example, similar to the transit settlements, we were successful in getting the Government to include requirements to announce transit stops in the Regulation.
Another positive change made to the final Integrated Accessibility Standards Regulation requires organizations to train their staff on the rights of persons with disabilities under the Human Rights Code. This has led to a partnership between the OHRC, the Accessibility Directorate of Ontario and Curriculum Services Canada to develop an e-learning module about the relationship between the Code, the AODA and its regulations. The module will set out human rights principles for implementing AODA standards and will be released this year.
The OHRC is concerned, however, that the regulations to date mostly do not require removal of existing barriers. This may not meet the requirements of the Code and will be of particular concern for the built environment standards which the Government is expected to release this coming year.
We have advised the Ontario Government about these concerns, especially how the AODA is being interpreted and applied in the development of standards.
We also raised these concerns in our comments to the Government’s first statutory review of the AODA (Charles Beer’s report) and later commented on the review’s final report, agreeing that: barriers are attitudinal not just physical; people with mental health and addiction disabilities should be included; and, more needs to be done at the highest levels to get the general public to fully embrace the AODA. The OHRC also supported the report’s recommendation for a provincial policy framework on accessibility so that other legislation, regulations, standards, policies, programs and services harmonize with the AODA and the Code.
The Law Commission of Ontario is developing a tool to guide government in the drafting of legislation, regulations, policies and programs so that they are inclusive of the rights of persons with disabilities. The OHRC is a member of the Law Commission’s Disability Project Advisory Group, along with ARCH Disability Law Centre and other groups representing persons with disabilities.
The OHRC reinforced the need for a policy framework approach in a joint press release issued with other human rights commissions across Canada calling on governments at all levels to meet their obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
In 2011, the OHRC and other commissions met with national disability organizations including the Council of Canadians with Disabilities and the Canadian Association for Community Living to discuss how we might work together to monitor implementation of the CRPD and report on results. With their input, the OHRC developed a brochure to promote the CRPD in Ontario and across Canada. The brochure is already being reprinted for distribution by the Council of Canadians with Disabilities and others.
One of the requirements under the CRPD is to make sure persons with disabilities can take an equal part in political and public life. This includes the right to vote by secret ballot, to run for office and hold office, accessible voting procedures, facilities and materials, and making it possible to use technology that can help (Article 29).
In a presentation to the Standing Committee on the Legislative Assembly of Ontario, the OHRC praised the Ontario Government for introducing Bill 231 and its provisions to improve the accessibility of our electoral system for voters with disabilities. We supported the use of special ballots by mail, mobile polls for voting in institutions and home visits.
Amendments to the Bill reflected the OHRC’s call for all polling stations to be set up in accessible locations and election material to be made available in electronic and other accessible formats. Provisions for the study of alternative accessible voting methods, while a positive step, are not as strong. Other concerns remain outstanding.
We also called for provisions for accessible electoral processes for candidates, not just voters, with disabilities, such as requiring accessible locations for campaign offices, nomination and campaign meetings, debates and related events, along with accessible campaign material. Nor did the legislative changes address disadvantages and potential expenses, such as sign language interpreters, that some candidates may face, either to meet their own disability-related needs or to make their events accessible.
We met with Elections Ontario and wrote to all political parties and other stakeholders to raise these and other concerns. We also made a submission to a recent United Nations study examining participation of persons with disabilities in political and public life. The OHRC will soon follow up to bring stakeholders together to explore solutions.
We have also been promoting the rights of persons with disabilities in other areas of public policy. In 2008, we referred almost 200 individual complaints against the Ontario Government’s Special Diet Allowance Program to the Human Rights Tribunal. The program is part of Ontario’s social assistance system. It was designed to help people with extra costs for therapeutic diets prescribed by their heath care professionals.
The Tribunal considered three “lead” complaints and in February 2010 found the program’s eligibility criteria violated the Human Rights Code because it excluded certain medical conditions or provided relatively unequal amounts for other conditions.
The OHRC, together with community legal clinics, continues with these legal proceedings at the Tribunal to enforce the Tribunal’s order to ensure people with certain medical conditions, including people with alcohol dependency and people with schizophrenia who are taking second generation medication, receive extra support.
In Seberras v. the Workplace Safety and Insurance Board, the OHRC intervened before the Human Rights Tribunal on the preliminary issue of the definition of services. The Tribunal has not yet held a hearing on the merits of the case alleging discrimination based on disability.
Another critical case involving disability - in this case, addiction - was Tranchemontagne v. the Ministry of Community and Social Services where the OHRC intervened at the Ontario Court of Appeal. The Court upheld the Divisional Court’s earlier decision that found denying disability benefits to people with addiction disabilities is discriminatory.
In April 2010, the OHRC reviewed the Ministry of Community and Social Services’ Draft Regulation on Quality Assurance Measures for services and supports to adults with a developmental disability. While community groups generally liked the new law and regulations, the OHRC agreed with them that changes were needed - including requiring service agencies to develop human rights policies and procedures that included the duty to accommodate, set out details on external appeal mechanisms, fulfilled preferences and respected privacy and dignity to the maximum extent possible.
The OHRC continues to promote understanding of disability rights together with groups such as Persons United for Self Help Ontario. This group raised concerns about unnecessary institutionalization, and access to housing and community services in Northern Ontario. The OHRC’s work on housing (see below) will help address this issue.
The OHRC is also involved in two data projects with Statistics Canada and the Canadian Human Rights Commission, examining the level of equality experienced by persons with disabilities across socio-economic indicators like income, housing, education and employment. One study is focusing on persons with mental health disabilities and the other on persons with disabilities in general. The OHRC will report on the results over the coming year.
In summer of 2009, the OHRC began to seek public input on its work to address mental health discrimination. The OHRC reported back on what it heard and then put in place a plan to guide its activities using a cross section of its mandated functions.
Following our plan, the OHRC made submissions to two provincial consultations – to the Ministry of Health and Long-Term Care’s (MOHLTC) 10-Year Mental Health Strategy, and to the Select Committee on Mental Health and Addictions.
In 2010, we produced a public consultation paper on human rights and mental health and launched an on-line survey to hear directly from people with mental health and addiction disabilities as part of the largest public consultation in our history.
We conducted focus groups with patients in psychiatric facilities, and with many organizations that provide mental health and addictions services. As well, hundreds of people attended both public and private sessions for persons with mental illness, employers, service and housing providers held in North Bay, Ottawa, Windsor and Toronto. The OHRC also invited individuals and organizations to make written submissions to its consultation. We are now reviewing the enormous amount of information and will report later this year on what we have learned. That information will form the core of a new policy on human rights and mental health, which we plan to release next year.
There is growing awareness of the need to respond to mental health issues in an effective and coordinated way. Some of our work in this area was prompted by the Human Rights Tribunal decision in a case argued by the OHRC – Lane v. ADGA Group Consultants Inc. of Ottawa. That case, later upheld by the Divisional Court, reaffirmed that employees with mental health disabilities have a right to accommodation of their needs under Ontario’s Human Rights Code.
The OHRC is working with others to identify priorities and raise awareness. Finding out “who is doing what“ is an important step. For example, we have:
The OHRC has been working closely with the Mental Health Commission of Canada throughout our initiative. We continue to meet with other groups and keep everyone informed on our progress. We created a mental health rights theme page on our website and issued a “Top of Mind” newsletter to update individuals and groups on our activities. We provided training to staff at the Centre for Addiction and Mental Health on human rights and mental health in employment and worked with the Canadian Mental Health Association to include human rights principles in its Mental Health Works employment training materials and resources.
For a long time now, and again during our consultation, people with mental health illness and their advocates have been raising serious concerns about the adverse affect of interactions with police along with related provisions of the Mental Health Act. One area of concern, among others, has been the adverse effect of police records.
In 2010, we published an Interim Guide on Police Record Checks for Vulnerable Sector Screening following settlement of two complaints against the Toronto Police Services Board. The OHRC then began to work with the Ontario Association of Chiefs of Police to support the development of their new police record check guide. The work also involved the Ontario Police Records Check Coalition – a group that included the Psychiatric Patient Advocate Office, the Canadian Mental Health Association Ontario, the Centre for Mental Health and Addiction, the Community & Legal Aid Services Program, and the Ontario Association of Patient Councils, among others.
The OACP’s new Guideline on Police Record Checks was released in July 2011. The Guideline provides a human rights perspective with a focus on people with mental health issues. The Guideline has been endorsed by police services, mental health advocates and vulnerable sector agencies alike as a positive step forward; though all groups agree there are related issues that still need to be addressed. The OHRC also wrote to the Attorney General on related concerns around police record checks used for screening potential jurors.
Much of the OHRC’s legal interventions involving mental health disability are in the area of housing and zoning discrimination discussed below.
The OHRC now has the resources and the opportunity to do a job it was always supposed to do – deal with the big picture issues of racism and discrimination, do public education, and work with partners to help them change their organizations and their sectors.
In 2007, in partnership with the Metro Toronto Chinese and Southeast Asian Legal Clinic, the OHRC began its public interest inquiry into assaults on Asian Canadian anglers fishing in Ontario communities. Since then, the number of reported incidents has decreased markedly. There has been an increase in dialogue about hate activity and racial profiling, and a heightened response to this issue by many organizations. Examples range from front-line police training on hate crimes, to school boards including classroom discussion of racism against Asian Canadian anglers.
Some communities were quick to respond. The Race Relations Committee of Peterborough, other community leaders from Peterborough, the surrounding county, Kawartha Lakes, and the police, among others, condemned the violence and established a working group with various organizations, including representatives from the Ministry of Natural Resources, the Ontario Provincial Police, and members of the Asian Canadian community.
In Georgina, the Mayor met with Asian Canadian and Jewish Canadian community groups to offer his apologies for incidents that appeared to target Asian Canadians and Jewish people. These kinds of responses have a profound impact on increasing public trust and send a message that the issue is being taken seriously.
Our 2009 report on the Inquiry highlighted the progress 22 organizations have made. The report also identified ways more progress could be made and asked communities to continue working on and responding to incidents of racism.
The Asian Canadian Angler inquiry is an excellent example of the type of work we will continue to do in the future. It provided an environment for communities to work together to take action, and for affected communities to know more about their rights and how to protect them. We found many willing partners – municipalities, police, government ministries, community groups - anxious to share expertise and information with each other to address a common problem.
The OHRC also teamed up with the City of Vaughan and the Canadian Race Relations Foundation (CRRF) to hold an important forum focused on “Mobilizing Municipalities to Address Racism and Discrimination.” The OHRC launched a new reference guide at the forum, “Anti-racism, Anti-discrimination for Municipalities”, which offers tips and templates municipalities can apply to support human rights in communities of all sizes. These initiatives link to the OHRC’s ongoing work with the Canadian Commission for UNESCO and its initiative promoting the Canadian Coalition of Municipalities against Racism and Discrimination.
In May 2010, the Toronto Police Service, the Toronto Police Services Board and the OHRC celebrated the completion of their three-year Human Rights Charter Project. The project arose out of a need to address human rights complaints being made to the Human Rights Tribunal of Ontario about police. The three groups worked on human rights issues in recruiting, selecting, promoting and retaining staff, police learning, accountability, service to the public and public education.
While the three-year agreement is complete, the work continues. In 2011, the OHRC worked with the TPS Diversity Management Unit to design and deliver six training sessions on investigating human rights complaints for TPS staff that have to investigate and resolve both internal and external complaints. Ryerson University is now undertaking an independent review of the progress made during the project.
The OHRC also invited other police services to take part. This is having a positive impact. In February 2011, we began a similar charter project with the Windsor Police Service, Windsor Police Services Board and Ontario Police College to address policing and human rights issues, and ultimately to prevent discrimination and racism. The first interim report is anticipated this March. The OHRC has also been reaching out to Ottawa, York and Kingston police services as well as the Ontario Provincial Police.
Our new manual “Human Rights and Policing: Creating and sustaining organizational change” helps the law enforcement community understand how to build human rights into all their work. The OHRC attended annual conferences of the Ontario Association of Chiefs of Police and the Canadian Association of Chiefs of Police to promote this manual. In addition, the OHRC was invited to present the contents of the manual at conference on “Policing and Diversity” organized by the Calgary Police Service. Full day training sessions on the manual were also delivered in four locations across the Ontario.
We are working to promote and enforce human rights in Ontario’s correctional system as well. In August 2011, the OHRC settled the longest-running human rights case in Canadian history. The case of Michael McKinnon v. the Ontario Ministry of Correctional Services concerned discrimination on the basis of Aboriginal ancestry and has become the leading Canadian case on human rights remedies in race discrimination. Earlier decisions found Mr. McKinnon, a jail guard, experienced discrimination including a poisoned work environment and failure on the part of the employer to address the problem. Following the settlement, we entered into a project charter agreement with the government to ensure that long term systemic initiatives are further developed and properly implemented.
Litigation is another important part of the OHRC’s strategy to address human rights in law enforcement because systemic change does not mean the need for vigilance goes away. We intervened in the case of Phipps v. Toronto Police Services Board where the Human Rights Tribunal of Ontario found that Toronto Police had racially profiled Phipps when he was delivering mail in an affluent Toronto neighbourhood. This case is currently at the Ontario Court of Appeal. The Court has not yet released its decision.
We are involved in two cases on about inmate care in custody, where we hope to address the way services are provided to inmates, so that their human rights are respected. This is also part of the Charter Project with the government, noted above.
The OHRC also intervened in Stanley v. Toronto Police Service. In her complaint, Ms. Stanley, a Muslim who wears a hijab, alleges that she was handcuffed and her hijab was forcibly removed while being questioned by Toronto police officers about the actions of some youth in the neighbourhood. While in custody at the police station, male officers viewed her without her religious head covering. Ms. Stanley was later released by police. The case was settled and includes having the Toronto Police Service review and revise its Search of Persons Guidelines to make sure they are consistent with the duty to accommodate religious observances under the Code. The OHRC is monitoring the implementation of the settlement.
Sadly, some long identified human rights issues have been very slow to change. The discrimination faced by Aboriginal people continues, and is hugely damaging. Educating Aboriginal people about their human rights is a positive first step, while the OHRC builds relationships to exchange information and learn.
The OHRC is also speaking out on Aboriginal Rights. In response to an article condemning the placement of a “No Natives” sign on a restaurant door in Lakefield, the OHRC talked about how this served as a tragic reminder that what happened in the past continues to happen today – Aboriginal people across Ontario continue to live with discrimination and hate. The OHRC praised the quick response of police, Aboriginal leaders and the community of Lakefield, and urged all Ontarians to follow the lead of the Lakefield community, and to make a new history of reconciliation and inclusion.
Our work in this area also has links to mental health discrimination, housing, education, employment, competing rights, creed and religious accommodation.
Since 2010, the OHRC has:
As part of our ongoing relationship-building with Aboriginal peoples in Ontario, we are working with colleagues in the Truth and Reconciliation Commission of Canada. We are exploring the ways that reconciliation and human rights intersect and how we can help eliminate barriers and discrimination that affects Aboriginal peoples.
We are updating our brochure on Aboriginal People and the Human Rights Code which will again be available in Mohawk, Cree and Ojibway.
In July 2008, the OHRC released Right at Home, a report on our consultation on human rights and rental housing in Ontario. This report followed a year of public sessions, meetings and submissions involving hundreds of individuals, organizations and landlords across the province. It focuses on housing as a human right, and sets out a framework for collective action to identify, remove and prevent discrimination in rental housing.
The report was followed by our Policy on Human Rights and Rental Housing, Canada’s first human rights-based look at how to find and eliminate barriers to housing. The policy provides tools, practical scenarios and information to apply to everyday situations, so that human rights problems can be eliminated quickly or prevented from happening in the first place. The United Nations recognized the OHRC’s Housing Policy as a “best practice”.
This policy is part of a wider effort to break down barriers to fair rental housing. To raise awareness on this issue, in December 2010, the OHRC launched its rental housing e-learning module at an event hosted by the York Centre for Human Rights.
The OHRC built partnerships with municipalities, tenant groups, advocates and housing providers to do public education on the policy. The OHRC joined forces with the City of Toronto, the Federation of Rental-Housing Providers of Ontario, the Greater Toronto Apartment Association and the Human Rights Legal Support Centre to launch the “Housing is a human right” poster campaign. Large-format posters appeared on 120 transit shelters across Toronto during March, encouraging Toronto tenants and landlords to learn more about these rights.
In 2011, working with the Centre for Equality Rights in Accommodation and the Housing Help Centre of Hamilton, the OHRC audited a number of websites providing rental housing listings and found discriminatory ads restricting children, those on social assistance and other discriminatory grounds like age, sex, marital status and disability. We then wrote to media and housing websites to ask them for help in addressing discriminatory housing advertisements. The OHRC published a fact sheet on best practices for landlords and on-line rental housing sites.
We are also working in an area of human rights and housing that needs much change: zoning and planning processes in municipalities across the province. For example we have made written submissions and/or presentations to a number of city councils including:
We’ve made strategic legal interventions in a number of cases related to zoning and human rights including:
Using legal forums is not the first choice for the OHRC to overcome discriminatory barriers to housing. This is because by the time a case goes to a tribunal or court, the damage to the people wanting to live in a neighbourhood or community is already done. Instead, our goal is to prevent the damage from happening in the first place, by working with municipalities to arrive at systemic solutions that make communities welcoming to all residents.
We have been working cooperatively with the Ontario Ministry of Municipal Affairs and Housing to clarify the human rights responsibilities of municipalities as they draft bylaws. In 2010, the OHRC made a submission to their province-wide consultation on their Provincial Policy Statement 2005.
As part of our public education programs, this February, we launched our latest guide, “In the zone: Housing, human rights and municipal planning.” The guide offers municipalities information about their legal obligations, and about the tools and best practices they can apply to connect human rights and housing when making zoning and planning decisions. We consulted planning experts, human rights and planning lawyers, housing providers and advocates to make sure the guide reflects a wide range of views.
The guide was launched during a daylong training forum at Queen’s University for municipal staff and associates relating to the Canadian Coalition of Municipalities Against Racism and Discrimination (CCMARD). The forum featured presentations on making organizational change to eliminate racism and discrimination, collecting human rights-based data, setting up special programs under the Ontario Human Rights Code, and a look at the CCMARD Toolkit for Municipalities.
Copies of “In the zone” have now been sent to every municipality in Ontario and a number have already responded asking for more copies for municipal staff.
We have also been working with different communities and will continue to reach out across the province to address human rights issues in housing over the next few years.
In 2011, the OHRC made a submission to the Ministry of Municipal Affairs and Housing recommending changes to Bill 140, the Strong Communities through Affordable Housing Act. We voiced our support for other amendments proposed by the Centre for Equality Rights in Accommodation, the Social Rights Advocacy Centre, the Housing Network of Ontario, the Ontario Municipal Social Services Association, March of Dimes Canada and the Ontario Non-Profit Housing Association, among others. These organizations all suggested amendments compatible with our reports and policy on this issue.
We also made a submission and appeared before the Standing Committee on Social Policy to comment on Bill 21, an Act to regulate retirement homes, and later commented on related draft regulations. We plan to meet with the new legislative authority governing retirement to discuss opportunities for human rights education.
We live in an increasingly diverse and complex society in which all citizens enjoy a variety of rights, freedoms and corresponding obligations. It is inevitable that legal rights may sometimes encroach on one another.
The Canadian Charter of Rights and Freedoms, provincial human rights legislation and the courts recognize that rights have limits in some situations where they substantially interfere with the rights of others. We all have a shared obligation to search for solutions to reconcile competing rights on a case-by-case basis. The goal is to maximize enjoyment of rights on both sides and accommodate individuals and groups if possible. That takes respectful dialogue and debate but sometimes legal action as well.
The issue of competing rights has surfaced in a number of cases in recent years. In 2008, complaints were filed alleging editorials in Maclean’s Magazine were discriminating against the Muslim community. The OHRC dismissed the complaints because the Ontario Human Rights Code protects the right to freedom of expression.
Similarly, the OHRC intervened at the Human Rights Tribunal of Ontario in the case of Whitely v. Osprey Media Publishing Inc. and Sun Media Corporation. An individual had alleged a community editorial was discriminatory towards so-called “outsiders” because of their place of origin. The OHRC supported the position that Code protects the right of people to express their opinion, on all sides. Other competing rights cases are not so clear and are progressing through the courts.
In May 2010, the Ontario Divisional Court issued a decision on a case we argued called Ontario Human Rights Commission v. Christian Horizons. It supported a decision of the Human Rights Tribunal of Ontario that found Christian Horizons, a faith-based charitable organization, was providing a secular public service, and infringed the rights of an employee who was in a same sex relationship.
This case and others show just how difficult it is to strike a balance between different rights and why there is a need for public discussion and policy guidance. The OHRC has been advancing understanding of how best to address competing rights over the past few years.
In 2005, we began the dialogue by releasing a research paper, Balancing Conflicting Rights: Towards an Analytical Framework. In 2008, the OHRC conducted an extensive literature and case law review as well as one-on-one interviews with various stakeholders.
In January 2009, the OHRC made a submission to the Canadian Human Rights Commission concerning section 13 of the Canadian Human Rights Act and the regulation of hate speech on the internet. While there is no equivalent provision in Ontario’s Code, the OHRC saw the report as an important contribution to the discussion on what to do when different human rights conflict with each other.
In March 2010, we partnered with York University’s Centre for Public Policy and the Law to hold a policy dialogue on competing human rights. The Association of Canadian Studies published research papers from the Policy Dialogue in a special issue of Canadian Diversity. The University of British Columbia Press will be publishing a more extensive volume of the papers.
In December 2010, the OHRC tested a framework for addressing competing rights at a two-day workshop with representatives from Ontario’s education sector along with a cross section of right holders. We also released our legal research, The Shadow of the Law: Surveying the Case Law Dealing with Competing Rights Claims.
Working with a range of communities, we’ve developed a process to look at those clashes and try to find resolutions. The framework, case law review, legal interventions and stakeholder consultations have provided the foundation for an OHRC policy, to be released this year. All of the materials will be on the Reconciling Rights theme page on our website.
The policy will help various sectors, organizations and individuals deal with everyday situations of competing rights and avoid litigation. When necessary, the policy may also give guidance to the Human Rights Tribunal of Ontario and higher courts for addressing cases that are more difficult.
The OHRC has intervened in relevant cases proposing its framework to help the courts examine competing rights questions. In N.S. v. M---D. S. & M---L. S. the courts are considering whether allowing a woman to wear a “niqab” veil as religious accommodation while testifying against the men alleged to have sexually assaulted her would interfere with their Charter right to full answer and defence. The Ontario courts’ decisions reflected the OHRC’s framework in their analysis. The issue is now before the Supreme Court of Canada.
The OHRC also intervened in Saskatchewan Human Rights Commission v. Whatcott at the Supreme Court of Canada. The issue is whether freedom of expression and religion include the right to distribute pamphlets alleged to contain hate speech targeting gays and lesbians.
In 2011, the OHRC issued requests for papers and presentations and in January 2012 hosted a policy dialogue on creed rights in partnership with the University of Toronto’s Multi-faith Centre and Religion in the Public Sphere Initiative. The event was well attended by a broad section of faith and other groups. Papers produced for the event will be published by the Association of Canadian Studies in a special issue of Canadian Diversity Magazine.
The OHRC will soon publish a case law review of creed rights. Also, this spring, the OHRC is hosting a legal workshop on creed rights with our partners, York University’s Centre for Law and Public Policy and Osgoode Hall Law School,. These initiatives contribute valuable perspectives and will inform the OHRC’s revision of its 1996 Policy on Creed and the Accommodation of Religious Observances.
In the meantime, the OHRC is continuing with other consultation and outreach efforts with groups such as the Ontario Multi-faith Council and the University of Ottawa-based Religion and Diversity Project.
The OHRC will strategically litigate in cases related to its priorities. We were involved in Loomba v. Home Canada – a case where a security guard, who did not wear a safety hat because it interfered with the turban he wore as an element of his faith, was forced out of the workplace. The HRTO found that Mr. Loomba had experienced discrimination, following which the parties reached a resolution.
In 2009, the OHRC updated its popular Policy on discrimination because of pregnancy and breastfeeding. In situations where a women’s right to breastfeed is questioned, individuals and groups are often quick to react in the media, citing the OHRC’s policy position on the right to breastfeed anywhere, anytime.
In 2011, we celebrated International Women's Day (March 8th) by releasing our new Policy on Preventing Sexual and Gender-based Harassment in partnership with Ryerson University and its Students’ Union and the CAW-Sam Gindin Chair in Social Justice and Democracy, Ryerson University. Gender-based harassment often reinforces traditional male/female roles. The effects of such harassment are serious, and can be particularly harsh on young people and lead to skipping classes, dropping out of school or more serious consequences such as alcohol or drug abuse or even suicide.
There has been broad interest in the policy. The Ontario Secondary School Teachers Federation requested 1000 copies of the policy for its members and the Toronto District School Board has done a massive distribution of the brochure version of the policy. George Brown College requested 200 copies of the policy and 500 copies of the summary pamphlet.
In litigation, the OHRC intervened at the Federal Court in Seeley v. CN, an application for judicial review of a decision of the Canadian Human Rights Tribunal. The Tribunal had found that CN discriminated against Ms. Seeley by requiring her to relocate without considering her obligations as a parent. The Court has not yet released its decision.
We have been reaching out and supporting a number of groups and sectors to help promote and protect rights for lesbian, gay, bi-sexual and transgender individuals.
An example is that the OHRC and the courts have recognized the ground of sex to include protection based on gender identity. Transgender individuals are one of the most marginalized groups in society. Recognizing this explicitly would send a strong message on promoting and protecting the rights of transgender individuals.
We have:
Many aspects of bullying in schools raise serious human rights issues. We are working with a number of community groups regarding gay-straight alliances and have written to support the Government of Ontario’s initiatives in Bill 13, “An Act to amend the Education Act with respect to bullying and other matters”. We’ve also provided input and materials to EGALE Canada, an LGBT human rights organization, to support its safe schools initiatives and their new website for youth and educators – MyGSA.ca.
While the OHRC celebrated it’s 50th anniversary in 2011, we participated in a number of celebratory events relating to the 25th anniversary of the inclusion in the Human Right Code of the ground of sexual orientation; we participated in the Senior Pride Network Symposium, the Ontario Public Service Pride Network and marched in Toronto’s annual Gay Pride Day with a banner commemorating our 50th anniversary and noting “Ontario Human Rights Commission = 50, PRIDE = forever!”.
Workplace harassment and other forms of discrimination continue to be the subject of many human rights applications at the Human Rights Tribunal of Ontario.
In a presentation to the Standing Committee on Social Policy, we spoke in support of Bill 168. The legislation, now in place, has new requirements for employers to develop, implement and annually review policies and programs to deal with harassment and violence in the workplace. This is an important change that will help address human rights law issues at their source.
We recommended expanding the Bill to include not just acts of harassment and violence but also other forms of discrimination and psychological or emotional harm, which can often lead to physical force. The OHRC also recommended that the law or its guidelines require monitoring of workplace “harassment” as one of the risk factors for violence. However, these recommendations were not incorporated into the final legislation and guidelines.
In 2010, the OHRC replied to concerns raised by the United Kingdom Chartered Institute of Management Accountants (CIMA UK) regarding restrictions on the use of foreign accounting credentials under Ontario’s new Bill 158 and the impact on its members residing and working in Ontario. We consulted with Ontario’s Office of the Fairness Commissioner about the Certified Management Accountants of Ontario’s “Canadian experience” and university equivalency requirements under the Mutual Recognition Agreement with CIMA UK. The CMA Ontario dropped the Canadian experience requirement in 2011. The OFC is expected to report in 2012 on the CMA Ontario’s reasons for restricting university equivalency.
The OHRC also worked with the College of Physicians and Surgeons of Ontario on revising its accreditation process for foreign-trained doctors.
In 2009, we wrote publicly to the Minster of Labour, recognizing that foreign domestic workers often face discrimination because of sex, place of origin, ethnic origin, race and other related grounds. We commended the Ontario Government for taking steps and making commitments to promote and protect the rights of foreign domestic workers including banning foreign domestic worker placement fees and targeting enforcement of agencies that breach Ontario’s labour laws.
We will be developing a guide on how to avoid discrimination caused by unwarranted accreditation or other requirements placed on persons born, educated or trained abroad – often called “Canadian experience”.
The OHRC published a new guide called Count me in! It encourages employers and other organizations to collect human rights-based data to help monitor and address human rights issues. The guide was developed with input from KPMG Canada, TD Bank Financial Group, Keewatin-Patricia District School Board, Mount Sinai Hospital, Maytree, The Toronto City Summit Alliance, Ryerson University’s Diversity Institute and the University of Guelph, among others. KPMG Canada and TD Bank Financial Group, also served as sponsoring partners, providing financial and in-kind assistance to design, print, distribute and launch the guide.
Collecting human rights data is important at all levels of society. The OHRC wrote a public letter to the Federal government raising concern that removing the mandatory requirement for the Census long form would weaken the data available for measuring advancement of human rights. The OHRC also raised concern about eliminating the Longitudinal Survey of Immigrants and the Participation and Activity Limitation Survey.
Employment is the largest social area of complaints filed with the Human Rights Tribunal. In the case of Giresh Patel v. The Workplace Safety and Insurance Board, Mr. Patel, a Hindu, was deemed by a Board adjudicator to have refused suitable work offered by his employer, even though this work involved food handling processes that were contrary to his religious beliefs. As part of the settlement of Mr. Patel’s ensuing human rights complaint, the WSIB agreed to work with us to provide direction to its decision-makers, so that human rights considerations are taken into account when decisions are made on claims before the Board.
During 2010 and 2011, we provided written comment and met with WSIB staff and management at all levels to promote understanding and application of the Human Rights Code. The WSIB released new policies that well reflect the Code’s duty to accommodate disability and other grounds.
Human rights in employment is a central part of many of the OHRC’s initiatives discussed throughout this submission including its work on mental health, police record checks for jobs, police service recruiting, new Policy on Preventing Sexual and Gender-based harassment, employment accessibility standards, outreach to municipalities on racism, and data reporting.
The OHRC referenced these initiatives in its comment for Canada’s 2011 ILO (International Labour Organization) Article 22 Report on Discrimination (Employment & Occupation) Convention. The OHRC also provided its comment directly to the ILO, a United Nations body, in response to their observations and requests.
Early into its new mandate, the OHRC updated its comprehensive and popular guide Human Rights at Work in partnership with the Human Resources Professionals Association. The HRPA and many of its members use the guide for training and reference. A new edition is now being prepared.
The OHRC developed its popular “Human Rights 101” e-learning module in partnership with students from New Media Studies at the University of Toronto, Scarborough Campus. The Human Rights Tribunal has ordered parties to undergo training with this module in a number of cases. The OHRC is currently translating Human Rights 101 into 13 additional languages.
We also released a second e-learning module on rental housing and have plans to launch others including on disability and the duty to accommodate.
Working with colleagues from the Canadian Association of Statutory Human Rights Agencies (CASHRA), we helped design and develop content and in June 2010 launched www.cashra.ca, a new website to showcase the work of Canada’s federal, provincial and territorial human rights agencies. This site provides links to all human rights agencies in Canada as well as to initiatives, news and opinions of national interest coming from the partner organizations.
To commemorate the 60th anniversary of the signing of the Universal Declaration on Human Rights, we worked with CASHRA, TakingITGlobal and the John Humphrey Centre for Peace and Human Rights to create a new website: www.tigweb.org/themes/udhr60. This site offers youth an interactive tool to learn about human rights and to talk about human rights issues affecting Canadians.
The OHRC also cooperates and shares expertise with human rights institutions and governments visiting from abroad including delegations from countries like Japan and most recently the United States.
In March 2010, we did a consultation to gauge how our policies were being used and by whom. Consultees filled out a survey with numerous questions that helped to assess the impact of our policy work. For example, in answer to the question, “How do you use the OHRC’s policies”, people identified the following as the most common five ways, in order of frequency of response:
The next most common ways in which the OHRC’s policies are used are:
Many individuals and organizations we consulted said our policies are invaluable tools in the work that they did. For example, the Centre for Equality Rights in Accommodation and the ARCH Disability Law Centre both provided extensive comment on the extent to which they use the OHRC’s policies for public education, in “demand” letters, before tribunals and the courts, and to stay apprised of legal developments.
When a new issue arises, we often hear about it first in the media. And the media is often the best venue for commenting on an issue to a wide audience. The OHRC continued to use media interviews, releases and advisories, and letters to the editor to respond to issues, correct inaccuracies and educate new audiences about human rights.
Examples of guest editorials and letters to the editor covered topics such as:
“Getting the message out” is a critical part of the work we do. This past year the OHRC began to take advantage of the communication tools offered by social media. We’ve since attracted more than 600 “friends” to our Facebook page and more than 1200 ”followers” to our Twitter stream. We’ve discovered that those social media networks reach different audiences looking for different sorts of stories. We’ve also found that we are increasing the awareness of all our work among people who we might not reach with ”traditional” publications. One immediate result – we believe our new social media presence played a key role in getting more than 1400 people to take our online survey on mental health and addiction issues.
Recently, the OHRC was asked whether the HRTO should be given the right, or use its discretion under the Statutory Powers Procedure Act (SPPA), to require a fee or allow costs for human rights applications. The United Nation’s position is that the complaint process should be free of charge. The OHRC supports this, as it supports the broader goals of human rights legislation.
We believe fees and awarding of costs will deter disadvantaged groups and individuals from accessing the human rights system. Complainants should not be required to incur direct or indirect costs. As stated in the SPPA, costs should only be considered in situations where a party’s proceeding was frivolous, vexatious, brought in bad faith or unreasonable. We are not aware of any statutorily-provided right being subject to a fee (e.g. Employment Standards, Worker’s Compensation).